Commentary Magazine


Topic: Ahmed Hashim Abed

Misbehaving SEALs

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.

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.

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Law Versus Proportion (and Plain Sense)

The Special Operations Commander for Central Command (SOCCENT) has a truly distasteful situation to steer through. The man in question, Army Major General Charles Cleveland, has brought charges against three Navy SEALs who seized a notorious Iraqi terrorist in September. The terrorist, Ahmed Hashim Abed, was behind the brutal murder of American civilian security guards in Fallujah in 2004. Producing a “fat lip” as evidence, he complained to Iraqi authorities that he had been roughed up by the SEALs. Military investigation of the incident produced the charges.

The blogosphere is thundering with justifiable indignation over this, and some perspective may be useful. It is, first of all, superficial to characterize the military’s motive for charging the SEALs as “political correctness,” an analysis that implies a self-conscious rejection of common sense and reality to avoid political retribution or to reap political reward. There is a deeper and genuine conflict at work here, between the rule of law, applied with meticulous honesty, and our sense of proportion and decency. This is a recurring conflict in all civilized societies: there are times when no reasonable man thinks the punishment fits the crime, even when there is little disagreement that a crime as defined by law has been committed.

The plain fact is that according to U.S. national policy, enforced by the Uniform Code of Military Justice, it is a felony-level crime for our soldiers to give detainees bloody lips in the gratuitous manner with which the SEALs are charged. That policy itself may well be an exercise in political correctness, but carrying it out is merely the enforcement of discipline.

The convening authority would not bring charges unless his legal advisers thought there was enough evidence for conviction. Much as I think he would hate to, my guess is that General Cleveland has preferred charges because, by the letter of the Uniform Code of Military Justice (UCMJ), the case merits prosecution. We mustn’t dismiss as irrelevant the paramount imperative of discipline in military operations. If the SEALs did beat Abed unnecessarily, the point for the military is not that Abed got a fat lip but that the SEALs breached discipline — and that is even more intolerable in Special Ops than in other branches. Indiscipline gets friendly forces killed and jeopardizes crucial missions.

The SEALs, all enlisted petty officers, have done what they can to obtain a just outcome. They were originally offered “non-judicial punishment,” a summary proceeding in which their commander could have administered, essentially, only a wrist-slap. But in their “zero-defect” community, a wrist-slap ends the hope of promotion. As is their right under the UCMJ, they chose court-martial instead, which will entail airing evidence before a military jury. Their preference here is almost certainly not a calculation but a belief: a belief in the intrinsically just character of their fellows in uniform.

I hope the SEALs are acquitted. That would be the just outcome. For a breach of discipline on the order implied here, the commonsense remedy is for the commander to put his men at attention, yell at them for half an hour, deny them some liberty, and give them some extra duty. But our national policy dictates another, disproportionate approach. I’m not sure how a civilized society avoids such confrontations entirely, but I will say this: juries have rescued the accused from the law before, and if anything will accomplish that for the SEALs, it’s a panel of their comrades in arms.

The Special Operations Commander for Central Command (SOCCENT) has a truly distasteful situation to steer through. The man in question, Army Major General Charles Cleveland, has brought charges against three Navy SEALs who seized a notorious Iraqi terrorist in September. The terrorist, Ahmed Hashim Abed, was behind the brutal murder of American civilian security guards in Fallujah in 2004. Producing a “fat lip” as evidence, he complained to Iraqi authorities that he had been roughed up by the SEALs. Military investigation of the incident produced the charges.

The blogosphere is thundering with justifiable indignation over this, and some perspective may be useful. It is, first of all, superficial to characterize the military’s motive for charging the SEALs as “political correctness,” an analysis that implies a self-conscious rejection of common sense and reality to avoid political retribution or to reap political reward. There is a deeper and genuine conflict at work here, between the rule of law, applied with meticulous honesty, and our sense of proportion and decency. This is a recurring conflict in all civilized societies: there are times when no reasonable man thinks the punishment fits the crime, even when there is little disagreement that a crime as defined by law has been committed.

The plain fact is that according to U.S. national policy, enforced by the Uniform Code of Military Justice, it is a felony-level crime for our soldiers to give detainees bloody lips in the gratuitous manner with which the SEALs are charged. That policy itself may well be an exercise in political correctness, but carrying it out is merely the enforcement of discipline.

The convening authority would not bring charges unless his legal advisers thought there was enough evidence for conviction. Much as I think he would hate to, my guess is that General Cleveland has preferred charges because, by the letter of the Uniform Code of Military Justice (UCMJ), the case merits prosecution. We mustn’t dismiss as irrelevant the paramount imperative of discipline in military operations. If the SEALs did beat Abed unnecessarily, the point for the military is not that Abed got a fat lip but that the SEALs breached discipline — and that is even more intolerable in Special Ops than in other branches. Indiscipline gets friendly forces killed and jeopardizes crucial missions.

The SEALs, all enlisted petty officers, have done what they can to obtain a just outcome. They were originally offered “non-judicial punishment,” a summary proceeding in which their commander could have administered, essentially, only a wrist-slap. But in their “zero-defect” community, a wrist-slap ends the hope of promotion. As is their right under the UCMJ, they chose court-martial instead, which will entail airing evidence before a military jury. Their preference here is almost certainly not a calculation but a belief: a belief in the intrinsically just character of their fellows in uniform.

I hope the SEALs are acquitted. That would be the just outcome. For a breach of discipline on the order implied here, the commonsense remedy is for the commander to put his men at attention, yell at them for half an hour, deny them some liberty, and give them some extra duty. But our national policy dictates another, disproportionate approach. I’m not sure how a civilized society avoids such confrontations entirely, but I will say this: juries have rescued the accused from the law before, and if anything will accomplish that for the SEALs, it’s a panel of their comrades in arms.

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