Commentary Magazine


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.

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