Three U.S. Navy SEALs now face military criminal charges arising from an allegation that the Iraqi insurgent who led the 2004 ambush, killing, burning, mutilation and hanging of four American contractors was punched in the gut.  If they are convicted, they could be sentenced to up to a year in prison, lose up to two-thirds of their pay for a year, lose all rank and receive a bad-conduct discharge from the Navy. Such a conviction would remain on their records for life.

The Navy SEALs (SEAL stands for Sea, Air and Land) are among the most highly-trained, sharply-honed instruments of national security our armed forces can produce. They are given the toughest assignments in the most dangerous and remote regions in the world—and they wouldn’t have it any other way. They take pride in being the best and most professional warriors on earth.  As the saying goes, “If you are an enemy of the United States and you have a SEAL team after you, you can run, but you’ll just die tired.”

In September 2009, Special Warfare Operators Matthew McCabe, Julio Huertas and Jonathan Keefe were assigned a mission to locate, capture and return a mass murderer who had been at or near the top of the war’s most-wanted list since 2004. They completed the mission and thus became national heroes—even though they remained largely unknown. In fact, we would not have known their identities but for the advice of senior military lawyers.

Shortly after the insurgent had been detained, a bloodstain appeared on his clothing and he complained of having been hit in the gut by his American captors. Rather than handling the matter with a stern warning to avoid any future appearance of impropriety, the allegation was brought to the attention of a senior military lawyer.  The commanding general decided to take stern, formal disciplinary action which would have ended the careers of all three of the SEALs.  That disciplinary action, known as Article 15 Non-Judicial Punishment (NJP), carries with it a right to refuse to accept the punishment.  All three SEALs separately and independently refused because it seemed to them that they would be denied a fair and impartial hearing; apparently they had already been determined to be guilty. Rather than thinking through all of the other alternatives available, the senior legal advisor recommended that the general refer these cases to prosecution by court-martial. This action ensured that the public would become aware of the case.

There is good news and bad news about this. The good news is that America has now learned about the heroism of these three brave American warriors who captured one of the Iraq war’s most notorious monsters. For that, they should have been awarded medals. At least, they are now being showered with admiration and appreciation by patriotic Americans across the land. However, the bad news is that by mishandling the response to a comparatively minor allegation, the special warfare community and the public in general have roundly condemned the senior leaders in charge of the war. No one in America should condone mistreatment of detainees during wartime. It is the policy of the United States that detainees be treated humanely. We have to adhere to that policy regardless of whether our enemies choose to violate the laws and conventions of modern warfare. But there should always be a level-headed, military commander’s evaluation of the seriousness of any allegation of mistreatment before deciding what to do about it.

This incident and its mishandling by senior military lawyers should serve as a negative example. Readers should compare it to the mishandling of the cases of Army LTC Allen West in Iraq in 2003 and CPT Roger Hill in Afghanistan in 2008. The introduction of lawyers onto the battlefield and in some cases, embedding them into battalion staffs, has created both a false sense of security and an over-reliance on lawyers by unit commanders.

Military legal advice is most often slanted toward invoking the full military legal process, like the court-martial system. Part of that tendency is an effort by military lawyers to justify their value to the commander. But the main part of it is because that is the only tool with which they are expertly familiar. For example, if you are a hammer, most problems tend to look like nails. With a precious few exceptions, military lawyers have not been, nor will they ever be, combat commanders. Military commanders do best when they are in their roles as leaders using traditional techniques to maintain good order and discipline. The case against these three brave Navy SEALs makes clear that military commanders at all levels would do better to solve problems using traditional leadership techniques rather than by resorting to advice from their lawyers.