June 2
Judge won’t dismiss charges against SEAL for ‘undue command influence’ despite prosecutor’s own words
Tuesday, May 4, 2010 at 9:21AM Jury selection begins in a Norfolk (Va.) court on Tuesday for Petty Officer 2nd Class Matthew McCabe.
First some background: McCabe is accused of punching an alleged terrorist and making false statements about it. The only visible evidence of the punch amounts to a cut lip and the punch was allegedly thrown long after McCabe and fellow SEALs brought in a man suspected of planning and implementing the murders, burning and desecration of bodies of 4 contractors in Fallujah in 2004.
Yesterday Capt. Moira Modzelewski, the military judge hearing the case, refused to dismiss charges against McCabe although two of his fellow SEALs charged with making false statements and dereliction of duty (for not preventing the alleged punch many believe never happened in the first place) have been acquitted.
If it sounds complicated, that’s because it is. But the founder of a Facebook group formed to support the SEALs made a good point on Tuesday. And I’m betting there’s ample evidence for dismissal grounds in transcripts from the first two trials, especially in the prosecutor’s closing statements in the other SEALs' trials in Baghdad.
David Lussier, founder of Support the Navy SEALs Who Captured Ahmed Hashim Abed, wrote, “This is pure speculatation on my part but after reviewing Article 37 of the UCMJ -Unlawful command influence. This section seems to directly apply to SO2 Matthew McCabe’s case: ‘A convening authority who exhibits an inflexible attitude toward disposition or punishment.’"
This is in addition to the idea raised on Monday by one of McCabe’s attorneys who asked for dismissal because of ‘undue command influence.’ The attorney referenced a Fox News program that suggested the general was “under pressure from his superiors.”
That claim is in line with what is called ‘The Ten Commandments of Unlawful Command Influence,’ specifically Commandment 5: “NO OUTSIDE PRESSURES MAY BE PLACED ON THE JUDGE OR COURT MEMBERS TO ARRIVE AT A PARTICULAR DECISION.”
There has been much speculation that charges were filed purely for political reasons.
And one of the most glaring appeared in print in an Associated Press story after the first two SEALs were acquitted. The wire service reported: “In his closing argument, [prosecutor Navy Lt. Cmdr. Jason Grover] pleaded with the jury to hold Huertas responsible as an example of ‘why we're better than the terrorists.’”
That may seem a bland statement. In reality this is a leftwing talking point, a trickle down from current Washington policy to appease the enemy, even if justice is trumped by doing so.
Further illustrating the politics in this situation is the fact the wire service quoted a so-called human rights group, “Against the backdrop of the Abu Ghraib detainee abuse scandal and the 2007 Nisoor Square shootings of 17 civilians in Baghdad, allegedly by Blackwater guards, the SEALs verdict marks another blow to America's image in Iraq... ’These trials are just propaganda for their justice and democracy,’ sneered Abdul-Rahman Najim al-Mashhadani, head of the Iraqi human rights group Hammurabi.’”
How's that for propaganda and undue influence?
The Hammurabi group was part of the scandalous coverage and propaganda effort in the Haditha cases.
Modzelewski, Circuit Judge of the Navy Marine Corps Trial Judiciary’s Central Circuit, in denying the request said there was “no evidence whatsoever of any pressure from the chairman of the Joint Chiefs,” cited by the defense attorney. She refused to dismiss the charges.
Yet evidence of undue political influence is right there under her nose, in the prosecutor’s own words. ‘Why we’re better than the terrorists’ is a leftwing talking point that is propaganda. If we weren’t better than the terrorists, the alleged terrorist the SEALs detained would be missing significant body parts and desecrated as the enemy desecrated contractors who were performing duties that were part of a broader effort to conclude an unpopular war hampered and prolonged by Washington politics.
Modzelewski should have dismissed charges against McCabe.
If I were the defense attorney, I’d be combing the transcripts of the earlier SEAL trials. It’s likely there’s more political puffery within the prosecutorial statements and even the questions, suggesting there was indeed ‘undue influence.’
Did possibilities for 'undue influence' exist in power beyond that of the Joint Chiefs?
Reader Comments (2)
Excellent peice Kay! We have learned many things from this horrid miscarriage of justice. One of the most shocking is the fact that when our military goes into battle or completes a mission - they are treated as criminals by the very people who sent them in. We learned that not only do the brass turn their backs on them they refuse to follow the very laws written pertaining to the case.
I have been outraged continiously with their "politics". A medical doctor finds no signs of abuse in the two previous trials. He even went as far as to say it could have been a cold sore. The only witnesses to back up this alleged crime is Martino who had already lied a couple of times and should have lost crediability and the terrorist who operates from a hand book that suggests he hurt himself & cry abuse. He even testifies he had a bag over his head so how could he see who did what? I mean if you want to go out on that limb - it could of been Martino & lied so many times to cover himself.
This case from day one has been build on the word of a liar & a terrorist. They say we are the ones misguided with false information & media misreporting the incident. What could we expect them to say when they basically have been caught openly disregarding laws and honing politics into a case that is poorly built on the words of such weak witnesses!
Oh sweet lady - I could spout all day about this but I came to read your excellent, informative publication & tell you that you are appreciated for your dedication to report the accurate information on this travesty to justice and the American way of life.
Kudos again to you.
Rhia, thanks. I wish the defense could try again for the 'undue influence' position. I really think that is the case with all these trials. I think that influence extends beyond the general. best, kay