I will post links to and analysis of this statement later, but here are excerpts of General Cleveland’s outstanding comments in response to the verdict in the SO2 McCabe case:
I take my responsibility as a commander and convening authority very seriously and did not make the decision to refer these charges to courts-martial lightly. While I had preferred to handle the incident administratively, Petty Officers Huertas, McCabe and Keefe exercised their right to have this matter handled by a court-martial. he evidence presented reasonable grounds to believe that offenses had been committed and that Petty Officers Huertas, McCabe, and Keefe had committed those offenses. In the interests of justice and to maintain good order and discipline, I chose to proceed with the courts‐martial. . ,
Despite the opinion of some of those who preferred that these charges not proceed, I allowed these charges to go forward because I truly believe that the best process known for uncovering the truth, when the facts are contested, is that process which is found in our adversarial justice system. There is no better way to discover the truth than by presenting evidence to an unbiased panel of members, having witnesses testify under oath, and having that testimony subject to vigorous cross-examination. . . .
Incidents such as the ones alleged in this case carry strategic implications for U.S. forces and U.S. National Security and ultimately cost the lives of Americans. I will continue to take allegations such as this seriously, investigating them whenever they are brought to my attention, and acting on them when the evidence so dictates. I look forward to SO1 (SEAL) Huertas, SO2(SEAL) McCabe, and SO2 (SEAL) Keefe returning to their Team and continuing their duties in defending our great Nation.
After reading MG Cleveland’s comments, I saw these refreshing comments from SO2 McCabe’s lawyers via AP:
Faraj and fellow defense attorney Neal Puckett said the acquittals prove the military justice system works. And though in the past, both have been critical of Cleveland’s decision to court-martial the SEALs, the attorneys were more philosophical after the victory.
“No terrorist organizatas a tool for policing civilian and contractor employee conduct abroad. While the viability of the UCMJ to address either terror trials or civilian actions abroad is largely untested, the overall fairness of the MilJus system never ion can claim that the American military didn’t press forward and really investigate,” Faraj said.
As the AP reporter alludes to, it is hard to say whether this new found perspective came with victory or not. Whatever the cause may be, it is at least good to see these comments from Mr. Faraj.
My last thought on these cases, at least on CAAFlog, is this. In the last five years, we have heard some of the same elected officials that recently rained hate and contempt on the MilJus system give accolade after accolade to the MilJus system as a forum to fairly and impartially try terror suspects. In addition, Congress only recently asked that the UCMJ be applied to civilians in battlefield environments. All the while it seemed that the overall fairness of the MilJus system was not to in question–until now.
What changed? Humbly, I would say, nothing. And there lies the problem. The UCMJ system has become a third (or 52nd depending on your perspective) criminal justice system in the United States. It now is the primary source for holding servicemembers accountable for all manner of crimes. But, of late, it has become a political football due, IMHO, to a loss of focus on the very different mission of the UCMJ as an indispensible tool for commanders in maintaining good order and discipline.
Judge advocates, including myself, might use these cases as a reminder of this unique mission of the UCMJ and a reminder that civilian standards for criminal justice aren’t always transferrable to the military justice system. For example, an oft cited AUSA philosophy of only taking cases that are sure convictions is not one that commanders always have the luxury of adopting. As MG Cleveland said, the interests of justice and maintaining good order and discipline are the commander’s dual burdens in deciding to proceed with charges against an accused. While a commander can not refer baseless charges, charges that may be abandoned in the civilian world may be purused under the UCMJ to fulfill this dual (if not primary) mission. Furthermore, as in cases like the SEAL courts-martial, interests beyond deterrence and crime fighting are at stake in investigating and proceeding with disciplinary action. The cases may “carry strategic implications for U.S. forces and U.S. National Security . . .” and pose a direct risk to the other servicemembers under the commanders’ care. As one commenter put it, today was a good civics lesson, or, at least maybe a good refresher for our core demographic on CAAFlog.