Friday, December 11, 2009

Rush To Judgment--No Evidence Yet on Navy Seals

The brave Navy Seals (down to three now, the possible fourth was dismissed at a very early stage, and was originally charged only with lack of cooperation, but not in the incident itself) are still waiting for the cowards at JAG and the officer corps to produce a scintilla of evidence against them. Andrew Price and I have used these pages on our Legal Looking Glass Blog to explain the difference between "evidence" and "testimony." So far, the only thing they have on our warriors is a terrorist with a split lip and his word for how it happened. Ptui!

In general, it is not terrifically unusual for the early stages of a complaint to go forward solely on the apparent record and the word of a complainant. Full charges are regularly proven up early after the defendant(s) have entered a plea. In this case, all three SEALs have pleaded not guilty, as is completely appropriate. Further hearings will require a showing of some actual evidence.

But I don't think I'm wandering off the reservation by pointing out that this is not exactly a minor "unauthorized absence," or "misuse of government property" charge. This is a high-profile case where the prosecution has had in its possession for months all the real evidence and investigative reports they need. I'm of a mind that there is either no hard evidence, or it's so shaky that the government needed to get its pitiful "facts" together to try to save face at the upcoming courts martial.

Moreover, the military commanders who are so political that they thought this would move them up on the promotion lists were so far removed from real combat that they never considered that an honorable warrior would refuse the lesser ordeal of a career-ruining captain's mast and demand that they prove the warrior's guilt in open court. The SEALs risk everything since this could be both career-ending and end up with lengthy incarceration. No notches on the belts of the political officers corps yet.

The government is already showing clear signs of weakness. The current cover for why there was not at least a scintilla of hard evidence contained in the charging documents is the normally valid "the military is still reviewing the evidence in the case to determine whether it contained classified information." Come on guys. You're just now doing that review? What have you been doing all this time? Or could it be that you thought this was a slam-dunk political move that men of honor would just take lying down?

The names of the heroes don't get mentioned enough. They are generally just lumped together as "the SEALs." So let me do that briefly. Matthew Vernon McCabe, age 24, Julio Antonio Huertas, Jr., age 28, and Jonathan Elliot Keefe, age 25.

McCabe's attorney deferred his plea at the arraignment on Monday. The legal time from plea at arraignment to date of the trial is determined from the entry of the plea. McCabe's attorney, Neal Puckett, made a statement later in which he said "The problem will be whether they provide the evidence soon enough to give us time to prepare for the trial. Typically, some evidence [remember, not testimony alone] is provided before the arraignment." Nevertheless, Puckett hopes to begin trial by the current tentative trial date of January 19. McCabe is the only one charged with the actual "crime" of giving a detainee a cut lip (assault, as well as well as dereliction of duty and making a false statement) .

Huertas is charged with impeding an investigation, dereliction of duty, and making a false official statement. Huertas has entered a not guilty plea. Keefe's arraignment was continued to a later date. He is charged with dereliction of duty and making a false statement.

The maximum penalty for all the charges would have been one year in military confinement and forfeiture of two-thirds of a year's pay, had they accepted the quiet political punishment of a captain's mast. But there was a third penalty: Dishonorable discharge for bad conduct. There is no way of knowing what these warriors might have done about the first two penalties, but they demonstrated their honor by refusing to accept a bad conduct discharge and risk all of those penalties rather than falsely admit they had been dishonorable. Try to explain that to the politicians and political generals.

The father of defendant McCabe, Marty McCabe was not restrained by legal niceties and legal considerations. His son has been charged with a career and freedom-ending crime. He doesn't have the military or the courts to restrain his opinion. He participated in a defense rally for the warriors. "We can't send these guys into harm's way to get the highest profile terrorists and then have them come back here and fight the system" said Marty McCabe. McCabe further said "They've been tracking this guy since 2004. There was no collateral damage. No shots fired. It is absurd to think they would do anything to him. These guys are pros. If they wanted to do something to him, they would have done it during the capture." That part is conjecture, but from my viewpoint, it's damned good conjecture.

At the rally, the protestors held signs that said "You fight for us, now we fight for you," Honk for Our SEALs," "Condemn the Terrorists, Not the SEALs," and "Is This America?" All sentiments with which I am in full agreement. The rally was organized by Josh Irving of Forth Worth, Texas. He told CNS News "Over the Thanksgiving holiday, I was just reading articles and read about these guys and my blood started boiling. I just lit a fire on Facebook and it took off." Protestors came from places as far away Texas, North and South Carolina, Ohio, Delaware and Maryland. Given more time, I suspect there would have been many more from many farther locations. But time and immediacy were more important than collecting a bigger crowd.

Perhaps the best speech of all was given by Donna Zovka, mother of Blackwater victim Jerry Zovka. We must remember that this subhuman, Ahmed Hashim Abed, was the leader of the jihadists who murdered the four Blackwater employees, partially burned their bodies, dragged them through the streets, and hanged two of them from a bridge over the Euphrates River. She felt some closure at the capture of the men responsible for the murder of her son. She wants to see justice for the terrorist, and exoneration for the SEALs. "It was difficult for me to get here today," she said, "but I am very grateful to these three Navy SEALs. I am hopeful for them, in my heart of hearts, I know they will overcome this and win." I think she's right.

For more details on the underlying terrorist murders which prompted this kangaroo trial, as well as the complaint of the terrorist against the SEALs, see: Next They Came For The Frontline Fighters.

ON A HAPPIER NOTE: I want to wish a Happy Hanukkah to our Jewish friends. It should already be sundown for many of our readers, and the beautiful eight day festival begins tonight. The holiday is a great reminder that if we maintain our faith in God, we will survive whatever can be thrown against us. Let the lights in the temple menorahs burn brightly.

UPDATE: Several of my friends, including some military folks in the know, have pointed out that before the SEALs made their decision to demand a full court martial, the offer had reached the level of an admiral's mast (in other words, a higher level of command decision). I had originally referred to a "captain's mast," which is obviously a lesser command level. I should have brought that up to date in this article, but I failed to do so. My thanks to the pros (I admit my ignorance of most things military when it comes to disciplinary procedures).


Tennessee Jed said...

Thanks for this important post, Hawk. Delta Forces and Seals have my highest respect for the work they do. I sure would hate to see weenies jerk these guys around. I guess the facts will eventually come out, but they should get all the slack in the world. Maybe we need you or even Harmon Raab to defend.

Unknown said...

Tennessee: I taught Harm everything I know, and he still doesn't know anything. LOL

I actually acted as co-counsel in a military trial. It was a very different world. Most of my civilian defense tricks simply weren't available to me. But as for realistic viewing of the real evidence and the entry of truly relevant evidence, it was a great experience. On the other hand, the prosecution wasn't allowed to slip anything in either. Military judges don't search for legal angels on the head of a pin. They look at the facts, and decide quickly. I hope this pattern holds up in the court martials of these three brave men.

StanH said...

God bless these three young men. I agree with the father, if these three warriors wanted that Islamo-Goon dead, he’d be dead, lickety-split. Is it normal for the prosecution to layout their evidence publicly, especially military courts martial? My bet is like you say they expected these young heroes to plead out, and the Obamabots could point out how they hate the military. Oh well…it would seem the SEALs have other plans. Good post Lawhawk you can feel your passion/anger coming through your key strokes.

ScottDS said...

Thanks for the Chanukah wishes!

As for the article, my cousin is a Navy Seal and this whole affair stinks on hot ice (to borrow a line from a Woody Allen movie). The thing that gets me is that the guy they had was a wanted terrorist, not some innocent person from off the street who may or may not have known something.

Unknown said...

StanH: Like you and the SEAL's dad, I'm having a real problem trying to figure out what the government could possibly dream up to make these men guilty of anything. Even if the one SEAL did punch the terrorist, why would he do it at that late date unless he was defending himself? And if he actually did punch him out of sheer sickened frustration, what's that worth? A solid rebuke and a day's pay? I just don't get it.

Unknown said...

Scott: You're more than welcome. Even in this town, God is not entirely forsaken. Each year we have the Macy's Christmas Tree lighting, but what out-of-towners don't know is that in that same part of Union Square, Hanukkah is celebrated as well with the lighting of a gorgeous blue menorah. Unfortunately, I was out too early for the lighting today.

The SEALS don't need to use undue force with prisoners. Those prisoners are fully aware of what a SEAL could do to them if he wanted to. And how you're expected to round up and imprison a bunch of murderous primitives without somebody getting a scratch or other minor wound is totally beyond me. This is bulls--t, pure and simple.

AndrewPrice said...

This whole thing is despicable. This is called a show trial -- where our government tries to show how great it is by destroying someone who didn't do anything. This stinks.

Unknown said...

Andrew: I couldn't agree more. This trial is worthy of a nation like Saudi Arabia or Iran. Great nations don't have trials for their heroes who have volunteered to face death to keep their fellow citizens from harm. And until now, America never had military show trials to promote a pacifist, cowardly, and suicidal political agenda. The diseased minds behind this action leave me shaking with anger and disgust.

HamiltonsGhost said...

Lawhawk--I wouldn't have the courage even to sign up for what the SEALs, Green Berets and Rangers do. But even if I did have that much courage, only to find out that if I did my job well, I would be put on trial for it, I sure as hell wouldn't sign up. I suppose it shouldn't surprise us since these same people love prosecuting police officers for "police brutality" while letting the criminals go free. They're just extending their reach. This is both disgusting and frightening.

Unknown said...

HamiltonsGhost: It's the same mentality. Police brass tend to be politicians looking to move up by stepping on their cops. Non-combat military brass are also politicians looking for the same thing by stepping on their troops. And right now, with the Obama nutcases in power, that means getting yourself out in front by persecuting their troops for being mean to the innocent followers of the religion of peace.

StanH said...

You’d expect nothing different from Barry and his leftist minions. In the liberal eyes Muslim goons are natural ally, in knocking America down a peg or two, “the enemy of my enemy is my friend.” I know that’s an extreme statement, but I can’t couch the prosecution of these American heroes in any other way, in my mind. They’re working for the other team! We must remember these are the same creatures, that think it’s a swell idea to bring the trial of KSM, and his cohorts to NYC …breathtaking, …the stupidity of both actions. We are definitely in a parallel universe.

Unknown said...

StanH: I really am not sure that they consider the jihadists as "allies," though almost nothing would surprise me with these creeps. I just don't think they take them seriously. The're not enemies, they're merely friends we haven't met yet. And those "exceptions to the rule" that Islam means peace are nothing more than common criminals who need to be put on trial in civilian courts in America no matter where they were captured and no matter whether or not they were in uniform and identifiable legal combatants.

Bush was guilty of the self-deception about the dangers of Muslim hatred and how widespread it really is. But he never decided that a terrorist was really just a criminal even when caught on a foreign battlefield. That took the crazed thinking of an administration obsessed with criminal process rather than winning victory in asymmetrical warfare.

The Obamists don't really want the jihadists to win. They are simply willfully blind to the fact that their desire to show the terrorists how fair we are only emboldens them and creates a win for them because we chose to take actions that will inevitably cause us to lose. You don't try to befriend a mad dog. You shoot it.

Unknown said...

Lawhawk, I think the travesty of trying to punish the SEALs for doing their job is part of that same mentality. Whle we're showing how "fair" we are with their favorite terrorist masterminds, we also show that we won't tolerate the least physical contact by our military with those violent terrorists. Trials for men doing their jobs, and velvet glove treatment for the terrorists. What next--suites at the Waldorf-Astoria for the top terrorists and the Tijuana jail for our troops?

Unknown said...

CalFed: You almost make me want to become a terrorist and get captured in the middle east. It's really almost that bad. And you're right. It's the same mentality that brings illegal combatants and conspirators from overseas battlefields to be tried in our notoriously defendant-friendly civilian courts. The concept of innocent until proven guilty is a purely Anglo-American theme which even civilian courts in Europe don't apply. The rules of court which protect that legal concept were never meant to apply to terrorists captured outside the boundaries of the United States, and more importantly, until now if the terrorist or foreign agent was captured on American soil.

patti said...

i can say with certainty, that had i caught them, they would have had far worse. i say they got off lucky with their puny split lip. it infuriates me beyond words that these fine men have to endure this circus. and the dad is right, had they wanted to harm him, it could have easily been done during capture and then would we be here? doubtful. there's a saying here in texas, "do right and suffer the consequences." it's shameful that by doing their jobs, a job the us government trained them for, by doing the right thing, they will suffer. that the terrorist got these upstanding men as captors, again, is their damn good luck.

and i second your motion: let the lights shine bright. god is with us.

Unknown said...

Patti: The next time they corner one of these murderous jihadists on the battlefield, armed, out of uniform, and under no discernible authority, the sequence should be: "Stop!" BANG! "Or I'll shoot."

And I'm only half-joking. That would be perfectly acceptable under all known rules of war, the Uniform Code of Military Justice, the US Constitution, and The Geneva Conventions. Only if the soldier has already captured the terrorist and taken him into custody does he have to start worrying about the legal niceties of humane treatment (whatever that means to the wusses back at HQ and in DC). I think the conclusion is obvious. I know what I'd do if I had the stones to get out there and do what these bold warriors are doing. But then again, they're gentlemen. I'm not.

Unknown said...

For those of you who have some hopes that intervention from a sympathetic Secretary of Defense Robert Gates might change the picture, I have a link that tells you why Gates, certainly no Braveheart, is between a rock and a hard place on the issue. The two strongest prevailing legal opinions range from "he can't do it," to "it would be so difficult as to be unlikely that he would do it." I lean toward the latter opinion. See what you think: Legal Hurdles.

patti said...

law: i had the opportunity to meet gates when he was the president at texas a&m university. i wasn't impressed with him then and i am not impressed with him now. (funny note: during an open house there, i peeped into his kitchen cabinet and discovered a big box of fruit loops. still makes laugh. the maid caught me looking and had a laugh with me. true story)

Unknown said...

Patti: That's a very funny story. From what I've seen of him, Gates is a decent enough guy, and though he doesn't seem to grasp fully how the military works, he seems genuinely to care about the troops. But he's swimming with sharks now, and he's more of a tuna. He'll never swim fast enough to get ahead of the sharks who want to destroy our capacity to defend ourselves.

Unknown said...

In keeping with our policy of printing the truth, here are some details regarding the difference between a captain's mast and an admiral's mast:

"Mast" is an administrative proceeding where a senior officer in the chain of command can impose non-judicial punishment (NJP)
for disciplinary offenses that do not rise to the level of a court-martial. It is also referred to as Captain's or Admiral's Mast depending upon the rank of the individual leading the proceeding.

Authority to impose non-judicial punishment is granted under Article 15 of the Uniform Code of Military Justice (UCMJ) and is used by all the services. The Marine Corps refers to the proceeding as "office hours" while the Army and Air Force refers to it as an "Article 15." The UCMJ is contained in Chapter 47 of Title 10 of the United States Federal Code (Federal Law).

Additionally, there are also instances where sailors can be recognized by a commanding officer for outstanding performance at mast. Such a proceeding is called a "meritorious mast."

Nonjudicial punishment (NJP) is a leadership tool providing military
commanders a prompt and essential means of maintaining good order
and discipline. NJP is permitted by Article 15, UCMJ (Section 815 of
Title 10, United States Code) and is governed by Part V of the Manual for Courts-Martial and by service regulations. NJP proceedings may be known by different terms among the Services, such as "Article 15," "Office Hours," or "Captain's Mast," but the purpose of NJP, and for the most part its procedures, are common among the Services.

Prior to imposition of NJP, a service member must first be notified by the commander of the nature of the misconduct of which he or she is accused, of the evidence supporting the accusation, and of the commander's intent to impose NJP. The commander will then hold a
hearing at which the member may be present. The member may also have
a spokesperson attend the hearing, may present evidence to the commander, and may request that the commander hear from certain
witnesses. The commander must consider any information offered
during the hearing, and must be personally convinced that the member actually committed misconduct before imposing punishment.

The maximum permissible punishments depends on the rank of the accused and that of the officer conducting the hearing. Permissible punishments for officers can include forfeiture of pay (up to ½ of one month's pay per month for two months), restriction to base or to the ship (up to 60 days), arrest in quarters (up to 30 days), and a

If the member considers the punishment to be unjust or to be
disproportionate to the misconduct committed, he or she may appeal
to higher authority. The appeal authority may set aside the
punishment, decrease its severity, or deny the appeal, but may not
increase the severity of the punishment.

Receipt of nonjudicial punishment does not constitute a criminal

Hat tip to my old friend and business associate John Bryant in Southern California. Is it snowing there yet, John?

Jirvin said...

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