The SEALs were offered non-judicial punishment for their alleged crimes (called a Captain's Mast in the Navy), but they turned it down in favor of courts-martial. While technically not an admission of guilt, accepting a Captain's Mast is generally tantamount to one. Presiding officers very rarely find the accused sailors innocent, and they often impose effectively career-ending punishment instead.
Even if the SEALs prove their innocence in courts-martial or back the command down into dropping the charges, their careers might be ruined anyway. The problem is the military’s reliance on the justice system to address command problems. If these SEALs did, as accused, punch a captured terrorist and bust his lip in the course of arresting and transporting him, there ought to be a less dramatic way of dealing with the issue than the slippery slide to courts-martial.
Several years ago, in the midst of the Haditha hearings, I proposed in Proceedings Magazine (“Make the Military Justice System Fairer,” November 2007) a “good faith exception” to courts-martial. This would apply in cases where a warrior technically runs afoul of complex rules of engagement, but where there is evidence that the servicemember acted in the honest belief that he or she was properly performing his or her duties. Published guidelines could establish alternative means of discipline and victim compensation short of dragging in the judicial system.
Of course, my recommendations were ignored.
We will have to await a more detailed accounting of the facts in the SEALs’ case to make a truly reasoned judgment regarding their guilt or innocence. But the point is that unless there is a lot more here than initial reports suggest, this is not a matter that should involve the military justice system.
That last point should be obvious to all. The fact that it isn’t obvious to military judicial leadership points to a problem that needs to be solved, post haste.