The statement by Rep. Burton below in the two recent SEAL courts-martial cases (and for that matter most of the congressional criticism in these  cases)  should give pause to every military justice practitioner and convening authority and raise the question of whether such statements by a member of Congress undermine the foundation of the military justice system–good order and discipline.   Justice Rehnquist summed up that foundation nicely in Goldman v. Weinberger, quoting from prior cases, “[T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life, in order to prepare for and perform its vital role. . . . The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.” Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986) (internal quotations and citations omitted).

Rep. Burton’s statements question the very need for military justice.  It characterizes the recent acquittals as welcome victories, then adds, “but I maintain my position that these brave men should never have been put in this situation in the first place. Beyond the flimsy evidence and the fact that al-Qaeda terrorists are trained to claim torture or abuse by their captors, the very idea of a most-wanted terrorist sitting in a court room and testifying against our elite soldiers is absolutely disgusting.”  It  is almost as if Rep. Burton has no memory of the implications of detainee mistreatment and the failure to police it in both counter-insurgency strategy and good order and discipline. 

First, the principle that humane treatment of your enemy will only enhance your efforts on the battlefield is as old as the Geneva Conventions and has been reiterated more recently in US Counterinsurgency doctrine.  The Army and Marine Corps Counterinsurgency Field Manual explicitly cautions that “[P]articipation in COIN operations by U.S. forces must follow United States law, including domestic laws, treaties to which the United States is party, and certain [host nation] laws. . . . Any human rights abuses or legal violations committed by U.S. forces quickly become known throughout the local populace and eventually around the world. Illegitimate actions undermine both long- and short-term COIN efforts.”  MCWP 3-33.5, at 1-24 (Dec. 15,2006).  On the point of detainee abuse, the Manual specifically instructs, “Leaders and units unprepared for the pressure of active operations tend to use indiscriminate force, target civilians, and abuse prisoners.  These actions can threaten the popular support and government legitimacy essential for COIN success. Badly disciplined and poorly led security forces become effective recruiters and propagandists for insurgents.”

Second, the statements seemingly contend that good people never do bad things.  This fascinating research (and book I now have to get, The Lucifer Effect: Understanding How Good People Turn Evil) by former Amer. Psych. Assoc. President Philip Zimbardo makes the case, though I don’t know if it does so intentionally, that small bad acts, particularly in the military environment, can lead to serious good order and discipline issues.  Zimbardo’s book at Chapter 15 compares his famous Stanford Prison Experiment and the actions of soldiers at Abu Ghraib.   Dr. Zimbardo said in the article, situations “make people take a small first step toward a harmful act with a minor, trivial action and then gradually increase those small actions.”  Zimbardo concluded that “the Abu Ghraib soldiers’ mental state–such as stress, fear, boredom and heat exhaustion, coupled with no supervision, no training and no accountability–may have further contributed to their evil actions.”  What I think is relevant for purposes of military justice, is that the research suggests the tools of good order and discipline should not be reserved for bad apples in the unit and heinous acts of abuse.

Thus, MG Cleveland’s action to administratively punish what everyone believed to be a relatively minor act of alleged abuse and accompanying allegations that respected servicemembers covered up that abuse, is on solid footing in US policy and the need to preserve good order and discipline.  Neither Congress nor the Art. III courts have the institutional “expertise in military affairs” to make these case by case judgments.  Congressional intervention in this case probably undermined commanders’ authority.   As to the effect of MG Cleveland’s acts had on soldiers, sailors, or Marines, I don’t see a negative effect if his actions cause them to pause in a similar situation.  These cases deal with allegations about the treatment of a bound and blind-folded detainee in US custody, not split second battlefield decisions.

22 Responses to “Congressional Intervention in Military Justice Undermines Commander Authority”

  1. Southern Defense Counsel says:

    No Man,

    Good post. This is another situation in which people are using the military (and MilJus in particular) to make political points, and as you note, that can only damage the military overall.

    I am amazed that right wingnuts/birthers/etc, are so willing to take down the military, of all institutions, to try to score political points. That members of the military play into their hands is all the more shameful.

    I thought the evidence against the SEALs sounded weak, and the verdicts show nothing more to me than the fact that the Military Justice system is, for all of its warts, a good system that strives to get it right. I pray that the attempt to politicize the military does less harm than I fear it could.

  2. anonymous says:

    The funny thing is, Burton is exactly right.

  3. Mike "No Man" Navarre says:

    Anon 1209, right about what? The accused in this case requested court-martial so they were there because they asked for it. This admitted murderer only sat in a courtroom and testified because the accused requested it.

    While I think everyone agrees that the evidence had problems, based on which members decided to find them NG, there was an accuser (in fact the initial accuser) that was a service member and there were injuries noticed by a naval officer that led to an inquiry into the detainees treatment. Thus, the facts drove the inquiry and the inquiry and statements of US servicememebrs drove the CA’s action. I am glad to hear the NG verdicts if the evidence was weak and the witnesses were unable to prove the allegations against these SEALs beyond a reasonable doubt, but that’s not what the released statemetn addresses, or at least not the part that is the subject of the post.

    So what’s right in the statement?

  4. Christopher Mathews says:


    I am amazed that right wingnuts/birthers/etc, are so willing to take down the military, of all institutions, to try to score political points.

    Why “the military, of all institutions?” Surely you don’t have any lingering misapprehension that the deep reverence for the military that is professed by political operatives amounts to anything more than posturing?

  5. Southern Defense Counsel says:

    I guess it is more the blatant disregard that is shown, not that the disregard exists at all. No, I never believed that one end of the spectrum had a monopoly on the military. But to abandon that perception all together, that was what I meant in my comment.

  6. Anonymous says:

    Maybe this isn’t what Burton was getting at, but it is important to remember that prosecutors have a duty to not bring a case to trial unless they believe they can prove guilt beyond a reasonable doubt. That duty could be considered in conlict with your COIN argument. To wit: it may enhance COIN to prosecute a case, but if there is insufficient evidence then such a prosecution would also violate our core values as lawyers and judge advocates.

    And I don’t mean this to cast any aspersions on the prosecutors of this case. I simply raise this as a general counter-point to the blog post.

  7. Mike "No Man" Navarre says:

    Last time I checked the referral standard in RCM 601 was “reasonable grounds to believe that an offense triable by court-martial has been committed and that the accused committed it.” I also recall that RCM 601 specifically says the CA and judge advocate need not resolve objections to evidence and may rely on hearsay in deciding to refer. Beyond a reasonable doubt is nowhere mentioned and the Trial Counsel has no say in the referral decision. The standard for NJP in Part V of the Manual, para. 1.d., is similarly devoid of reference to a beyond a reasonable doubt standard.

    As for these TCs, they took they evidence they had and, along with the military judge and defense cousnel in the two cases tried so far, performed from what we can tell admirably in the courtroom and in upholidn gthe standards of the profession.

  8. RY says:

    I think the main point of disagreement here revolves around prosecutorial discretion. I don’t know that Rep Burton, or the other comments on this issue, necessarily believe anyone on the government side was behaving unethically, but rather that the better part of valor was not to pursue this by trial. In this case I understand that they turned down NJP, but that does not necessarily mean a court was still the right decision, even if properly within the commander’s discretion. Alas, as is the nature of discretion, it is subject to disagreement.

    As I reflect on the posts related to the SEALS cases, it seems to me the disagreements are largely a matter of perspective and which we believe is most important: the military justice “system” as a whole, or the individuals on trial. Certainly, acquittals are good for the “system” and instilling confidence that court-martials are not just rubber stamps. From the “system” perspective, there is no problem and, in fact, this is all good for military justice.

    On the other hand, from the individual perspective, there is still something to be said about those who go through the process of a court-martial unnecessarily. Being wrongly accused, even if vindicated, does not undo the stress of the process, restore the tarnished image, or remove doubts from those on the sidelines. (I understand an acquittal does not mean they were wrongly accused, but for the sake of this argument it doesn’t matter). The fact is, some people accept acquittals well but others don’t. I’ve seen SJAs and commanders cool with acquittals as demonstrating the viability of the “system” and I’ve seen SJAs, commanders, airmen, and civilians think an “acquittal” means the government failed and the accused just got lucky. Just look at the O.J. Simpson case: many think he got lucky but there are also many who think he was unfairly prosecuted.

    In any event, I think it all depends on your perspective of what’s most important to justice: the system or the individual. These acquittals are good for the system, and I have no reason to believe anyone has acted in bad faith, but I feel for the individuals even though they invited the C-M by turning down NJP. In the end, they are SEALS and should be able to deal with the stress better than most I would think.

  9. Balkan Ghost says:

    Excellent post and follow-up, Mr. No Man.

  10. anonymous says:

    Mike, Rep. Burton was right that “the very idea of a most-wanted terrorist sitting in a court room and testifying against our elite soldiers is absolutely disgusting.”

    Don’t you find that disgusting?

  11. Anonymous says:

    So let me get this straight, even if we have a crime we think a servicemember has done, let’s say murder, or rape, or something even more egregious…

    we shouldn’t charge them with it if it involves a “most-wanted terrorist” testifying for the government?

    Somehow having them testify is so “disgusting” that we don’t care if the accused committed a crime or not?

    Absolutely silly.

  12. Late Bloomer says:

    No-Man, your quote from Goldberger is interesting in that it reminded me of a recent article about Gen. Mattis, USMC. I agree with the overall premise of your post, but I also feel that the courts can overcorrect too much. Contrast the exhortation for “the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection” with the following excerpt about Gen. Mattis from Slate’s chief political correspondent John Dickerson:

    “Mattis is an evangelist for risk with two core principles. The first is that intellectual risk-taking will save the military bureaucracy from itself. Only by rewarding nonconformist innovators will the services develop solutions that match the threats conceived by an enemy that always adapts.” [The second principle is irrelevant here]

    One could argue that the SEALs fully embrace this principle, perhaps to a higher degree than other subsets of the military. I wonder how C.J. Rehnquist would feel about this case, particularly in light of a combatant commander’s “core principles”, were he still with us.

  13. Late Bloomer says:

    Link to Dickerson’s story:

  14. Gene Fidell says:

    I could not agree more that legislators should not seek to exercise influence over the administration of justice on a retail basis. (Systemic issues are of course a different matter and should be addressed by legislation where appropriate. Have the legislators who have weighed in on the SEAL cases supported the pending proposal to expand access to the Supreme Court, for example?) TC does not control which cases go to trial. When I was on active duty, the MCM 1969 (rev.) permitted submission of a “Report of Inadvisability of Trial” to the CA. As the duty TC in CGD1, I created a very official-looking form–caption and all–for this purpose. Used sparingly, it did tend to get CAs’ attention. The Discussion under R.C.M. 502(d)(5) of the current MCM permits such a report in “any case in which [TC] finds trial inadvisable for lack of evidence or other reasons.” I’d be interested in knowing how often this power is exercised, and whether it was in the SEAL cases.

  15. Dwight Sullivan says:

    Someone with greater familiarity with the facts please correct me if I’m wrong. But my memory is that the prosecution had no intention to call Abed as a witness and that it was the defense in the Huertas and Keefe cases who insisted on access to Abed, which resulted in the trials being moved to Iraq. I think that was a very good defense strategy (obviously, given the cases’ outcome). But the prosecution’s case wasn’t built on Abed’s testimony. In fact, given the location of the McCabe court-martial, I don’t think Abed will even be called in that case. Is my recollection correct?

  16. JimmyMac says:

    I think you will find in most, if not all, jursidictions (including, dare I say, the ABA Model Rules (Rule 3.8(a))) that the standard for a prosecutor to bring a charge is “probable cause”.

  17. Mike "No Man" Navarre says:

    Excellent comments RY. We disagree about some of the things you said, but very thoughtful. I would mention that at least one legislator has called into question the fairness of the court-martial and political bias of the system as a whole as a political talking point in this case–yet has not mentioned that he is pursuing systemic reform (see Gene Fidell’s question below).

  18. Article16 says:

    I agree with RY on all points.

    In addition, I think elected officials can complain and grandstand all they want and it doesn’t undermine the foundations of the military justice system. It goes both ways. They might have a unique platform, but just like anybody else they may freely criticize a prosecution, submit letters to a sentencing authority (which may or may not be admissible, in whole or in part) or ask for clemency (which may or may not have any weight or substance). On the other hand, I would say that political pressure TO prosecute or increase the severity of disposition or charges is even more frequent, but it does not undermine the foundations of the system either. Think of some of the politicized cases overseas. The SJA and military judge have roles in insulating the process from undue, outside pressures in both cases.
    What does undoubtedly undermine the system, in my opinion, is automatic dispositions based on type of allegations–that’s a good way to steamroll people and, unfortunately, I think the non-legally trained 32 officers are the weakest link.

  19. PMF says:


    The genesis of the defense motions to produce Amed was the government’s request to the CA for a deposition in Iraq. The government’s plan was to use the deposition transcript in their case. The defense objected arguing that if Amed was available for a deposition then he was available for to testify at the trial. The MJ decided that the government’s inability/decision not to bring
    Amed to the U.S. for the trial did not make him “unavailable.” Therefore, he would not admit the deposition transcript or tape as a substitute for testimony, and ordered the trial moved to Iraq so Amed could testify.

  20. Dwight Sullivan says:

    Thanks, PMF. I stand corrected.

  21. Anon says:

    I don’t know, but I surmise that if this case was solely based on the allegation of a terrorist, it would never have have gone anywhere. If I am not mistaken, it was the allegation of a Military witness that the detainee had been assaulted while restrained and out of the fight which resulted in the commander seeking administrative action in the form of NJP.

  22. Montgomery J. Granger says:

    It is hard to believe that after all this time the media have never discussed the essence of what goes on regarding the daily routine inside these detention facilities, such as Gitmo and Abu Ghraib. The real story of detention and medical duty at Gitmo is contained in my book, “Saving Grace at Guantanamo Bay: A Memoir of a Citizen Warrior.” The book compliments the clear thinking expressed here, but discussing for the first time, intimate emotional details of what goes through the minds of normal citizen warriors during stressful and confusing detention operations. After all, once you get down to the heart of the matteer, it is the individual conscience that dictates how tings are ultimately handled. Sincerely, Montgomery J. Granger, Major, Medical Service, USAR (Ret.)