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Government Has Yet to Provide Evidence to Support Its Prosecution of Navy Seals for Alleged Punching of Terrorist
Tuesday, December 08, 2009
By Fred Lucas, Staff Writer
(CNSNews.com) – Though trial dates have been set for mid-January, defense attorneys for three Navy SEALs charged with offenses arising from the alleged punching a terror suspect in the mid-section said at an arraignment on Monday in Norfolk, Va., that the government still had not provided any evidence in the case.
If defense attorneys do not get the evidence soon enough to review it, it might raise the need for a delay in the trial date, said Monica Lombardi, civilian attorney for Julio Antonio Huertas Jr., 28, who pleaded innocent in military court at the Norfolk Naval Station on Monday. His trial date is set for Jan. 11, 2010.
Lombardi told CNSNews.com that the government provided no time window as to when the evidence will be provided. She told reporters it is “highly unusual” to wait this long for evidence and predicted the trial might be delayed if the defense does not have adequate time to review the evidence.
Matthew Vernon McCabe, 24, deferred his plea at the arraignment on Monday. His civilian attorney Neal Puckett said it is routine for him not to offer a plea for his clients at the arraignment.
“The problem will be whether they provide the evidence soon enough to give us enough time to prepare for the trial,” Puckett told CNSNews.com after the hearing. Typically evidence is provided before the arraignment, he said. Nevertheless, he still expects to be able to go to trial on Jan. 19.
Lt. Col. Holly Silkman, spokeswoman for the Special Operations Command Central (SOCCENT), told CNSNews.com last week that the military was still reviewing the evidence in the case to determine whether it contained classified information.
The charge sheet was only made available to the public late on Friday evening.
The terror suspect who accused the SEAL of punching him in the mid-section is Ahmed Hashim Abed, alleged architect of the murder of four Blackwater USA security guards in Fallujah, Iraq in 2004. The bodies of the four Americans were burned and hanged from a bridge.
The three SEALS are McCabe, 24; Huertas, 28 and Jonathon Elliott Keefe, 25. Keefe’s arraignment was continued.
Huertas is charged with impeding an investigation, dereliction of duty, and making a false official statement. McCabe was charged with assault, dereliction of duty, and making a false official statement. Keefe’s arraignment was continued. He is charged with dereliction of duty and making a false official statement.
The alleged incident happened on Sept. 1 at Camp Schweidler in Iraq, when Abed was already in captivity. If convicted in the special court martial, the SEALs face a maximum penalty of one year in military confinement, forfeiture of two-thirds of their pay for one year, and a discharge for bad conduct.
The three SEALs are facing misdemeanor charges. The military first sought non-judicial punishment, called a “captain’s mast.”
A “captain’s mast” would have spared them any chance of imprisonment but would have severely harmed or possibly ended their military careers, defense attorneys said. So the SEALs refused the “captain’s mast” and opted for a court martial to clear their name, even though the punishment from a court-martial conviction could be more severe.
“It’s hard to be labeled a hero--you heard the list of medals--two tours in Iraq, one tour in Afghanistan,” Lombardi told reporters after the court hearing. “He [Huertas] is confident in his defense team and confident justice will be served.”
CNSNews.com
Defense Secretary Could Face Legal Hurdles to Intervene for SEALs Accused of Punching Terror Suspect
Friday, December 11, 2009
By Fred Lucas, Staff Writer
(CNSNews.com) – Defense Secretary Robert Gates could intervene in the court martial of three Navy SEALs accused of punching one of the most wanted terror suspects and then lying about it. But Gates also could face legal obstacles in overturning decisions made by lower level commanders who chose to proceed with the prosecution.
Last week, 33 members of the House of Representatives, including House Minority Leader John Boehner (R-Ohio), signed a letter to Secretary Gates stating, “We strongly believe that these court-martial proceedings are not warranted and would urge you to review this matter.”
However, Gates could be precluded, at least in the early stages of the case, from intervening because of a court martial rule called “unlawful command influence,” a Defense Department source told CNSNews.com.
The rule states that no high ranking commander may interfere with a court martial or military tribunal conducted by lower level commanders regarding “functions of the court-martial or tribunal or such persons in the conduct of the proceedings.”
Gates or other high-ranking military officials could intervene after the court martial to reduce the penalties, if the SEALs are convicted, under the Uniform Code of Military Justice.
U.S. Navy Seals in training (Courtesy of U S Department of the Navy)
The three SEALs are Matthew McCabe, 24, of Perrysburg, Ohio; Julio Huertas, 28 of Blue Island, Il; and Jonathon Keefe, 25, of Yorktown, Va. McCabe and Huertas were arraigned on Monday and their trials are scheduled to begin in mid-January. They are all facing a special court martial, which would be a misdemeanor, punishable by up to one year in military confinement, forfeiture of pay and a bad conduct discharge.
The terror suspect who accused the SEALs of punching him in the mid-section is Ahmed Hashim Abed, alleged architect of the murder of four Blackwater USA security guards in Fallujah, Iraq in 2004. The bodies of the four Americans were burned, mutilated and hanged from a bridge over the Euphrates River.
“I don’t think he [Gates] can dismiss the charges but he can encourage others to do so,” Sen. James Inhofe (R-Okla.), a member of the Senate Armed Services Committee, told CNSNews.com.
Gates could intervene but would “have to jump through a lot of hoops” to get involved, said Michelle McCluer, director of the National Institute for Military Justice, a non-profit group at American University that helps train military lawyers.
“Technically, the secretary of defense could, but I can’t name a single case where it has actually happened,” McCluer told CNSNews.com. “And in order for that to happen, he would basically have to take control, take that authority to convene a court from all the lower-level commanders.”
Section 822 of the Uniform Code of Military Justice includes the president and the secretary of defense, along with various commanders, as those who may convene a general court martial. Section 823 states that anyone who can convene a general court martial can also convene a special court martial.
McCluer’s view that this is highly unlikely differs slightly from the Defense Department source, who said it could not be done.
But recognizing the influence rule, McCluer said it is likely that Gates’s lawyers would advise him against intervention.
“He would be butting up against what is called unlawful command influence,” McCluer said. “If someone higher in the chain than the commander referring the charges, if they tell someone lower in the chain, you must do X, Y and Z, it’s basically illegal.”
The unlawful command influence rule specifically states: “No convening authority or commander may censure, reprimand, or admonish a court martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings.”
Further, the rule states, “No person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority's judicial acts.”
McCluer used an example, “a case of a commander saying, ‘nobody under my commander better testify on behalf of Airman Dirtbag,’ or something like that, because it just chills the whole justice process.”
“It’s a commander-driven justice system, not a prosecutor justice system like in the civilian world,” she said.
However, the problem might not be from the lower level, said Frank Gaffney, a former assistant defense secretary in the Reagan administration. Rather, be believes it is part of the Obama administration’s preoccupation with detainee rights.
“My guess is, left to their devices, the Navy would have handled this in a way consistent with their policies and traditions,” Gaffney told CNSNews.com. “The problem, I suspect, is with the secretary of defense or with the administration. I can’t imagine anyone in uniform, JAG officers included, supporting this prosecution.”
He said this is not inconsistent with the Justice Department’s decision to try 9/11 terrorists in U.S. civilian courts with constitutional rights. Further, Gaffney believes if more sailors or soldiers face prosecution, it will become difficult to recruit people for dangerous missions and more challenging to gain intelligence.
“These terrorist are killers -- capturing them may bring intelligence value and may save American lives,” said Gaffney, now the president of the Center for Security Policy, a conservative think tank.“It may put American lives unnecessarily at risk if we can’t get the intelligence out of these folks.”
CNSNews.com
It's 'Absolutely Ridiculous' to Prosecute Navy SEALs Over Alleged Punching of Terrorist, Says Former JAG Lawyer Now Serving in Congress
Wednesday, December 16, 2009
By Fred Lucas, Staff Writer
(CNSNews.com) – A former military lawyer now serving in Congress called the court martial of three Navy SEALs who captured a terrorist suspected of killing four Americans “absolutely ridiculous.”
Rep. Tom Rooney (R-Fla.) served four years in the U.S. Army’s Judge Advocate General (JAG) Corps and served as the special assistant U.S. attorney at Fort Hood, Texas, prosecuting all civilian crimes at the post. He later taught constitutional and criminal law at the United States Military Academy at West Point.
He believes the SEALs case represents a larger systemic problem. The SEALs are accused of allegedly abusing terrorist Ahmed Hashim Abed by supposedly punching him and then lying about the incident. Abed is the reported architect of the murder of four Blackwater USA security guards in Fallujah, Iraq in 2004, the bodies of whom were burned and hanged from a bridge.
“Never before in the history of this country, as much as now, does somebody [in the military] have to wonder is this going to get me thrown into Leavenworth for the rest of my life?” Rooney told CNSNews.com.
“Certainly, we want to take the high road, and we want to have the highest standards,” he said. “But we also need to have clear rules of engagement. That’s incumbent on us to maintain the leadership role, and the Department of Defense. And court martialing three SEALs for maybe or maybe not punching some guy in the stomach without any kind of corroborating evidence I don’t think is sending the right message.”
The three SEALs are Matthew McCabe, 24, of Perrysburg, Ohio; Julio Huertas, 28, of Blue Island, Ill.; and Jonathon Keefe, 25, of Yorktown, Va. Each is charged with dereliction of duty for failing to protect the terror suspect, Abed, and with making false statements.
McCabe is charged with assault for allegedly punching the terror suspect in the mid-section, while Huertas is charged with impeding an investigation. They face up to a year in military confinement and a bad conduct discharge if convicted.
The government has not produced evidence for the defense, the defense attorneys said. However, McCabe’s attorney, Neal Puckett, told CNSNews.com on Tuesday that he has an unconfirmed report that the evidence is in the mail. Puckett said he has not yet received it.
Rooney was one of 40 members of Congress who signed a letter to Major General Charles Cleveland, commander of the U.S. Special Operations Command Central, asking him to drop the charges.
“I think it’s absolutely ridiculous,” said Rooney. “The line between being given a medal and being court martialed nowadays is not discernable. It’s just so frustrating for me as a former judge advocate, as somebody who taught the laws of war at West Point. Our job is to advise commanders on what lawful targets are and what the rules of engagement are, and what you do toward prisoners who are detainees.
“I’m not saying that Abu Ghraib was not an absolute disaster, because it was,” Rooney said. “But that doesn’t mean that we have to kowtow to every little complaint that somebody might make that may or may not be valid and threaten non-judicial punishment or judicial punishment to these SEALs when the only evidence we have of any mistreatment is from the detainee himself,” he added.
“So I just think it’s unfortunate that we seem, we want to justify to hold our own people accountable when there is a lot that should be celebrated about the people in uniform,” Rooney said.
