I have some sympathy with Warren Kozak’s complaint regarding the prosecution of three Navy SEALs charged with beating Ahmed Hashim Abed, a captured terrorist of al-Qaeda in Iraq. Kozak is surely right that in World War II and other wars, U.S. troops often committed war crimes for which they were not prosecuted—the most common being killing enemy soldiers trying to surrender. But I also have some sympathy with the decision to court-martial the SEALs. While the captured terrorist richly deserved to be executed, not just beaten, the SEALs were expressly ordered not to abuse prisoners and may have violated their orders. They also are accused of lying about their acts, which would be another violation of the honor code by which these men live.
Why not simply allow them to throw a few punches on the sly and get away with it? The biggest reason is discipline—the need to ensure that our fighting men and women follow orders and don’t become rogue operators. But there is also an operational need to prevent freelance abuse of detainees, which could make it harder to interrogate them and, if publicized, result in a negative public-relations blowback a la Abu Ghraib. I believe that interrogators should have the freedom to use some “stress techniques” against high-level detainees if absolutely necessary to draw out information, but this has to be done in a carefully controlled setting with higher-level approval—it should not be left to the discretion of angry soldiers or sailors.
The fact is, this is not World War II. We are fighting a very different sort of war with very different rules. One of the differences: SEALs are not draftees who, for better or worse, made up the ranks of the armed forces in World War II; they are highly trained professionals who are expected to follow orders. That doesn’t mean they should be harshly punished, but nor can the higher command simply overlook their excesses, especially when they (probably foolishly) refused a non-judicial punishment by their commanding officer and insisted on a trial.