Richmond, December 7th, 2009

        For the full facts of the case, just Google them, they're pretty uncomplicated.
    
        But the facts of the "offense" almost don't matter. What does is the facts of the spin. Sadly, Glenn Beck is at the front of it.

        This is how the system works:
        After capturing Ahmed H Abed, it came to someone's attention that Abed had been injured (punched in the gut, also a bloody lip) and he had complained. What else is new? Three enlisted (this is important) SEALS were charged with either hitting him, holding him while he was being hit, or allowing him to be hit, and then lying about it in oral and/or written reports. Three more SEALS, including an officer, are being listed as witnesses.
        Here's the case as a military defense lawyer might see it:
        1. They were all offered Article 15's (Uniform Code of Military Justice), or as they call it in the Navy, a Captain's Mast. This is called "non-judicial punishment" in that usually a loss of pay or rank is all that is involved. These amount to misdemeanors graded from minor (say speeding) to more severe (say reckless driving). So, there are two levels of offenses. In the Army they are called company grade punishment, offered by a troop's immediate commanding officer, or b) field grade punishment, offered by the next higher in command, usually a battalion commander. The latter offers a series of more serious punishments...while still being a misdemeanor. In ships at sea there is only one level of Article 15, offered by the ship's commander.
            No report states what level of captain's mast was offered the SEALS.
            Still, no one outside the SEAL's immediate chain of command can bring these charges. Not NCIS, not some admiral or staffer in Tampa, nor the White House nor CIA.
            And still, involved are fines (a cut in pay for up to a 3 months) and possible a bust in rank. There is no brig/jail time, and no discharges from the service.
            If the servicemen disagree with the "offer", and it is an offer, of an Article 15, they may refuse it and demand a trial by a judge and a jury. Most importantly, in the military, an enlisted man is entitled to a jury of his peers, meaning at least 40% of the jury will be enlisted.
            These trials are called "summary courts martial" or "special courts martial". What you see in movies are "general courts martials" where serious offenses are tried. I have not read how it has been decided which of these two levels of courts have been selected, but if the original charges are severe enough to warrant a special court martial, that can bump the maximum penalties up to include a discharge if convicted. But that may also be a sign of command influence in the case, which the military justice system looks very, very hard at...always....that a senior commander, such as a general or admiral, is trying to influence the outcome of a case.
 
       2. The SEALS chose to refuse the captain's mast and ask for a courts martial. I think they were right in doing so, as the Navy must prove every element of the charge, and in doing do, must prove with corroborating evidence that Ahmed H Abed had been hit in the gut. His word alone won't prove squat, no matter how politically squeamish the commander is. And as for lying in their after-action action report, the prosecution must first prove the truth, which requires the presence of Mssr A H Abed.
           In my opinion, what the SEALS did do wrong was go out and get civilian attorneys, who, it has been my experience, know little of the military culture and tend to over-blow a case. They also tend to grandstand. That's what the ACLU does from the Left, but the Left does not have the market cornered on showboating. Many civilian attorneys simply do not have the client's best interest first and foremost in mind. They have another ax to grind.
      
       3. In all likelihood the Navy won't win and the SEALS will. In all likelihood, the NAVY can't win. They have to bring a dangerous battlefield POW to US jurisdiction  (wherever the trial is to be held) to testify, which, to my mind, in the end, isn't likely...or recommended. I can see no profit in this case going forward, for no prosecuting attorney wants to go to court knowing he's going to wipe the floor with his forehead.

       4. And, the case, even in trial, is still a misdemeanor.

       So, why did Glenn Beck call Marcus Luttrell, also a Navy SEAL and Navy Cross winner, to ask his opinion on law and command influence from higher up in the chain of command? I know of few enlisted men who didn't believe the top commander's fingerprints weren't on every traffic ticket handed out on post. It's no different in civilian life. Had Luttrell come to me, it would have been to ask the same questions Beck asked him. Why not ask his opinion on the Climate Conference, while you're at, Glenn? Luttrell can speak to battlefield heroism, killing bad guys, not courtroom rules and regulations. Glenn Beck could have more simply thumbed through the JAG yellow pages and asked any Navy lieutenant the answer to these questions. Any and all were more than qualified to win this case for these SEALS, and it seems that sheer cynicism led them in another direction.

       Because of a lot of grandstanding from support groups raising money for unnecessary civilian attorneys (for a misdemeanor trial!) to Glenn Beck, a simple and easy (no-brainer) of an acquittal has been turned into a circus.
       The sad thing is that all the angst and anger over these charges miss the mark...by 100%...for these men wanted justice and the court-martial was their only way of getting it. That's a good thing, isn't it?
       They weren't sent to trial. They weren't indicted. They asked for it...to clear their names.
       But to keep the anger up, and the fever pitch high, the people out here now have to be kept in the dark about just how simple (and minor) this case is...and how important this courts-martial is.
       That, Mr Beck, is demagoguery, and last week, it was a thing you hated most. This week you've wrapped yourself in it.
   
       And with us at least, you've lost a lot of your seriousness and credibility in the process.
Vassar Bushmills