Don't Court Martial the SEAL Three

December 7th is usually a day we remember the brave men who died at Pearl Harbor.  Many of them died fighting, responding instantly to the cowardly Japanese attack that  came without warning.  

This is a day to honor bravery, resolve and sacrifice.  But this December 7th is different.  Today — because lawyers are far too involved in running this war and commanders are deferring to them far more than they should — two Navy SEALs are being arraigned on charges they abused an Iraqi terrorist after they captured him three months ago. A third will be arraigned at a later date and their courts martial could occur next month.

As Rowan Scarborough reported two weeks ago, the three SEALs — Julio Huertas, Jonathan Keefe and Matthew McCabe — were part of a platoon from SEAL Team 10 that captured one of the most-wanted terrorists in Iraq, Ahmed Hashim Abed, in a nighttime raid on or about September 1.   Abed is believed to be the man behind the barbaric March 2004 ambush of Blackwater security guards in which four were murdered, their bodies mutilated and then hung from a bridge in Fallujah.

The facts of the case are a bit muddy.  According to a source close to the case who requested anonymity the SEALs captured Abed and transported him to a place where they surrendered him to Iraqi custody.  He made no complaint of abuse before being turned over to the Iraqis.  At some point after that, the SEALs reclaimed Abed who — though still technically in Iraqi custody — was taken back for further questioning, complaining of mistreatment. There was some blood on his clothing but it’s not clear when it appeared.

There is every reason to believe the SEALs are innocent.  Chapter 18 of the Al Qaeda training manual released by the US Justice Department says that members must complain of torture and mistreatment inflicted on them.  

American investigators became involved and, from that point, it’s apparent that lawyers were making decisions, and the commander at the top of the local food chain — MGen. Charles T. Cleveland — at first misunderstood his options and then pushed the matter far beyond the point at which it should have ended.

The charges signed by Cleveland accuse McCabe of illegally hitting Abed in the midsection and then denying he did it.  Huertas is accused of making false statements that he didn’t see anyone strike Abed and trying to suborn the testimony of another sailor to back his claim.  Keefe is also charged with lying to investigators.

As that list of charges makes clear Cleveland — for reasons best known to him and his lawyer — has chosen to throw the book at the three SEALs. These men — if their special courts martial go ahead — can be convicted just as if they were in US District Court. They face a federal conviction that could result in up to one year’s imprisonment, bad conduct discharges, fines and reduction in rank.  Those punishments would be grossly disproportionate to the offense of punching a terrorist in the stomach.  How did this get so far?

According to my source, Gen. Cleveland first misunderstood the difference between the Army and Navy’s disciplinary systems and then pushed the matter to this point.

Under the Army system, a commander can issue a non-permanent letter of reprimand to anyone he commands.  Cleveland was ready to do this to the SEALs before he was told by his lawyer that the Navy demands more due process for its people, and that he could either let it go or push the matter up a notch to “non-judicial punishment” under Article 15 of the Uniform Code of Military Justice.  

And this is where Cleveland went wrong.  Instead of just telling a lower-level commander to bring the three in for a royal chewing out — the maximum punishment these guys deserve if they deserve any at all — Cleveland went along with the lawyer and ordered that they be brought before a naval “mast”, the equivalent of an Army or Air Force Article 15 hearing.  Under the UCMJ, as is their right, the sailors refused to accept that.

You have to understand their rejection of Article 15 punishment.  These three — like most SEALs — are the ultimate in elite warriors.  They have worked enormously hard to earn SEAL status and are proud to risk their lives in the service of our nation.

My source told me that their ambition is to compete for spots on the most elite of the SEAL teams (the one that has a name, not a number, and whose members call themselves “the Jedi.” Which isn’t much of an exaggeration). They don’t think they did anything wrong and turned down the Article 15 because if they accepted it, their ambition to continue to serve their country — at an even higher level — would be quashed.  

The three — all career SEALs, not ticket-punchers — would probably be removed from duty and not permitted to re-enlist as SEALs.

Here again, Cleveland could have brought the matter to an end, but — at the advice of his lawyers — he chose to push the matter to the next step, the “special court martial,” which all three now face unless Cleveland changes his mind or a higher-level commander intervenes.

Which is precisely what should happen.  It is entirely legal under the UCMJ for one of Cleveland’s superiors to order the charges dismissed. (This is the opposite of illegal “command influence” in which a commander interferes in a military justice case to insist on charges being brought or elevated to a higher charge.)  

Which one will?  Which Cleveland’s superiors will have the courage to take a tougher path than to just let the trial play out?  Who will disregard his lawyers’ caution to “just let the military justice system work”?  

Those superiors’ duty is to exercise the judgment Cleveland didn’t. They have to balance the interests of keeping good order and discipline with the morale and effectiveness of the forces they command, and all the others who will be affected.  

Putting these SEALs through a court martial for an offense that deserves — at worst — a good chewing out and a sentence to do a few hundred pushups will send a devastating message throughout all the special forces.   

To intervene now, and stop this court martial from proceeding, will send the right message, one of real leadership.  Anyone in the chain of command above Cleveland could perform that duty.  Even President Obama.