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November 27, 4:25 AMLexington Military Headlines ExaminerWilliam

According to multiple reports, three United States Navy SEALs have been charged in connection with an alleged assault on a suspected terrorist. The three SEALs have requested trial by court-martial instead of non-judicial punishment (NJP). The difference between the options is that a court-martial is similar in nature and process to a civilian criminal court, guilt must be proven before a ruling is made, while NJP is simply stating both sides of the case to a judge (the commanding officer) who generally delivers a ruling in the same sitting as the case being stated. Court-martial can involve many of the same process requirements as civilian criminal court proceedings, while NJP usually is completed, from presentation to ruling, within the same day.

In NJP, the commanding officer hears the complaint, receives an oral summation of the service member from the chain of command, reviews the service record of the service member, may ask the member for his / her input on the matter, and then either dismisses the case or hands down a “non-judicial punishment.” Some examples of NJP are restrictions on personal liberties (confinement to quarters, not allowed to go to certain establishments, not allowed to leave base, etc.), additional work requirements, forfeiture of pay, reduction in pay grade, correctional custody and confinement on bread and water. NJP offers the unit commanders the option of being able to punish unit members for bad behavior while retaining the option for the member to continue his / her career, although frequent NJP will greatly impede progress, it won’t result in the member being separated from service or incarcerated.

The choice of the SEALs to pursue a court-martial is based on the limited options for them at NJP. It should be noted that, legally, the defendant still retains certain rights at NJP, but in reality, those rights are often misunderstood and downplayed. NJP hearings are held at the discretion of the unit commanders, who often designate one day a week or a month where they will hear the cases, depending on the size of the unit. Often, there are multiple drug or alcohol cases and occasionally a smattering of other offenses, and most of the time, the evidence is solid and it is a simple matter to resolve the case quickly and move on to the next. However, in a case such as the one the SEALs are being presented with, it is a toss-up with respect to how smart it is to ask for court-martial.

If they are guilty at NJP, they could be demoted, fined, and have their liberty taken for a short period of time, but the most significant part of NJP is that it doesn’t go away, it becomes a part of the service record. It stays with the individual for the rest of their career, which may be severely stunted by NJP.

If they are guilty at court-martial, they could be demoted, imprisoned and separated from the military with any of a number of less than honorable discharges, none of which are desirable, and almost all of which create problems for finding a job after any period of incarceration is completed.

As far as the actual case goes, the evidence, if any, witnesses, and statements are still being reported, but most reports seem to indicate that the “victim” was apprehended by the SEALs and turned over to Iraqi law enforcement or military police, to whom the “victim” made the allegations of abuse, and was then returned to U.S. custody. The U.S. military holds itself to a very high standard with regard to treatment of prisoners and detainees, so it is highly likely that any harm brought to the “victim” was incurred during apprehension of the individual, where the fight or flight reflex is triggered for most people, or during transport to a holding facility, during which the “victim” may have attempted to escape.

That is where the objective observations end for this article.

Many reactions to this event have been expressions of outrage at the accusations aimed at the SEALs, and some have called for the SEALs to be awarded the Congressional Medal of Honor. While I agree that the SEALs should be rewarded instead of punished, receiving a CMH for the apprehension of this dirtbag would be way off. The CMH is awarded for “conspicuous gallantry and intrepidity at the risk of life above and beyond the call of duty,” not for being told to go to 123 Bravo Street, Dirtville, Iraq and arrest a guy who fits a certain description or looks like a person in a photo or answers to , which is well within the “call of duty” for these guys. I’m not saying the SEALs aren’t fierce warriors or that these SEALs in particular are not worthy of respect and admiration for their bravery. I’m just trying to keep their actions in perspective. Too often, ridiculous assertions are countered with equally ridiculous counter-assertions, and in this case, a possible prison sentence is being countered with the CMH.
One writer asked whether three NYPD officers would be held to the same standard, if they were to beat a suspect in custody. There are numerous ways in which these two situations differ, but I will agree on the principle that no individual should be abused by any law enforcement official, nor any person acting as or on the behalf of a law enforcement official or agency.

However, what the public does not know about the apprehension of terrorists in Iraq or Afghanistan is that there is usually a significant investment of time and resources used to track a “target.” The special operations units are the final link in the “target evaluation and prosecution” chain, as they are the individuals designated to take action to capture or kill the target. The recommendation to capture or kill is based on intelligence estimates about the target’s intelligence value (can the target provide info on other targets, etc.), but the final decision rests with the special operations team tasked to action the target. Sometimes a target is harder to apprehend than assessed and it is necessary to kill the target, or to abort the mission.

The comparison to law enforcement, under these circumstances, may seem indistinguishable to a casual observer, but it is necessary to remember that Navy SEALs are not glorified police officers, they are elite warriors, trained to kill as the rule, not the exception. The individual they apprehended was not a U.S. citizen that stole jewelry from someone’s house, he was the mastermind of the deaths of four U.S. patriots who were murdered and defiled after death in a public spectacle. While it is certainly possibe that the SEALs simply walked up and knocked on the door and asked the guy to come with them, I’m going to say the apprehension of this person was somewhat more involved, and that quite possibly the individual was struck during his arrest. Much in the same way police officers often have to chase and physically restrain someone, these SEALs probably encountered some amount of disagreeable behavior on the part of the “victim.”

I have seen pictures of detainees that had multiple lacerations to the head and face and multiple broken bones, and when asked how the injuries were obtained, the apprehending team leader reported that the individual had jumped through a glass window from the second floor of a building in an attempt to evade capture. So, yes, it’s quite possible that this individual slipped while running, or that he spat upon one of the SEALs, eliciting a “butt-stroke” response, where the non-lethal end of rifle is applied directly and severely to the face or head of a person resisting the orders being given.

Personally, I believe the SEALs would have been well within their authority to simply execute this terrorist, and if they had done so, I would not have lost a wink of sleep over it. The only sleep I lose now is caused by thinking the reputations of these brave men may be adversely affected by the ridiculous assertions that a murdering terrorist was slapped in the mouth at some point during his apprehension or detention. Lucky for the terrorist, his proof (a fat lip) can’t be self-inflicted...