Obama Leaves the Seals Hanging - Legally Speaking

If you need a lawyer, you're on your own.

I previously posted on my unease over the subsequent handling of the bin Laden killing. In the comments, Dean said

The only aftermath bit that kind of bothers me is Panetta saying it was the SEALs' decision on whether or not to kill bin Laden. What? I'm calling bullshit.

This is indeed a problem for the administration. They are opening themselves and the SEALs to potential legal action. Volokh.com, as usual, has sound insight.

This was an armed lethal attack upon a a criminal adversary of the United States in an armed conflict, without cavil or apology. They were sent to attack and kill him as someone who was targetable with lethal force and no warning at any time. Which, as explanations go, and at least as it appears at this moment, does have the virtue of being true, as well as legally sound.

The NGOs and advocates and activist-academics have an instinctive sense for exploitable weakness and go after it; after all it’s part of their job. Brennan (as well as later spokespeople, including Holder) was not direct in stating that of course it was legal to target OBL, legal to target with lethal force, legal to target without warning or invitation to surrender, and that has always been the US legal position.
. . .
Firing on a lawful target, even an unarmed one and even when one knows a human target is unarmed, is not unlawful — that is what potentially happens when one drops a bomb, after all. Refusing to grant quarter or refusing to grant surrender, on the other hand, is a serious war crime.

But if the administration takes the position that this was a kill OR capture mission, the SEALs are now in a tough spot, having to prove that bin Laden "resisted arrest." This is crap. He was a legitimate military target, shooting him on sight is a legitimate order in time of war. But of course, the Commander-in-Chief should be the one making this argument, not a bunch of bloggers.

Military Justice - Third Seal Acquitted

Military justice is sometimes referred to as an oxymoron. However, I can tell you from personal experience that this not so. For the most part, commanders take seriously the need for impartiality and fairness in their proceedings, even during Captain's mast or Article 15, where the rules of evidence are considerably looser than in a Courts Martial. Further, there are many circumstances under which an accused sailor, soldier or Marine can decline Article 15 proceedings and ask for a court martial. This further protects the military member from a biased outcome.

This week the strength of this system was again confirmed when Petty Officer Second Class Matthew McCabe was acquitted for allegedly roughing up a prisoner, the notorious Ahmed Hashim Abed, who had masterminded assassinations of American private security guards in Iraq. P.O. McCabe made the good decision in this case to accept court martial in lieu of Captain's Mast (Article 15), because the convening authority, Lt Gen Charles Cleveland appeared to hold some biases. Now, all three seals that were charged have been acquitted.

Video from McCabe here. Embed fixed, video folows:



I would also add that even though he was acquitted, P.O. McCabe has suffered through an ordeal. He had the real chance of going to jail; his career was definitely interrupted, and his reputation was damaged by the comments of his commanding general, who presumed him guilty. I hope that he is able to resume his career.