Three SEALs accused of committing war crimes in Afghanistan hope to escape court-martial by expanding an evolving legal concept unique to the military — the appearance of unlawful influence by commanders that’s so odious it ruins the public’s faith in the criminal justice system.

“I don’t know how anyone in the general public could look at this without holding their nose,” said Colby Vokey, part of the defense team for the SEAL defendants.

No one denies that something very bad happened at Village Stability Platform Kalach in the Chora District of Afghanistan’s Uruzgan Province on May 31, 2012.

American authorities have long conceded that much of the abuse heaped on bound prisoners inside a SEAL compound came at the hands of Afghan Local Police militiamen wielding sticks and car antennas, with one villager possibly dying after brutal interrogations.


Special Warfare Operator 1st Class Daniel V. Dambrosio Jr. and two Special Operator Chief Petty Officers, Xavier Silva and David N. Swarts, underwent nonjudicial administrative punishment by Capt. Robert E. Smith in late 2012 and they also cleared two internal SEAL review boards.

Called a “Captain’s Mast” in the Navy, the nonjudicial punishment is a far less severe form of justice. The proceedings play out in private, far from public courtrooms and a paper trail citizens can follow.

They ended up in a Naval Base San Diego courtroom six years later thanks to a late 2015 article by The New York Times involving an alleged coverup at Kalach.

On Jan. 19, 2017, Naval Special Warfare commander Rear Adm. Timothy Szymanski charged Dambrosio, Silva and Swarts with assaulting the prisoners. Swarts and Dambrosio allegedly fired their pistols near a detainee’s head.


Swarts also is accused of conspiring with their commander, SEAL Team 10’s Lt. Jason L. Webb, with lying to military leaders about what really happened that night, but the officer isn’t standing trial with his enlisted commandos.

But as their trial started this past week, it seemed the Navy’s criminal justice system was on trial as much as they were. In a series of hearings that started Monday and lasted well into Wednesday night, military judge Cmdr. Arthur Gaston weighed evidence presented by both the SEALs’ criminal defense attorneys and the Navy prosecutor, Cmdr. Andrea Lockhart.

The defense attorneys claimed that Navy commanders engaged in suspicious conduct to bring the SEALs to trial that was so dicey that it tainted the prosecution and put the entire military court system into question by the general public. They’ve called for the charges to be tossed out.

Cdmr. Lockhart has countered that there’s no evidence of unlawful command influence. Even if it existed, she said, an admiral objectively decided that the SEALs should go to trial, with no knowledge of whatever command activity went on behind the scenes.


“These cases are important because they highlight concerns about a systemic problem with military justice. The public must be assured that the prosecution of any service member is fair,” said retired Capt. Lawrence Brennan, the Navy’s former senior admiralty counsel who now teaches at Fordham University’s School of Law.

In the military, a general or admiral is the convening authority for trials on the most serious crimes. The courts are inherently ad hoc and can be manipulated by the senior leaders who order them into existence.

Flag officers pick the charges and later the members of the jury. They also act on clemency and pardon petitions, but rules guide how much pressure a commander can place on the scales of justice before it becomes unfair to the accused.

That’s called “unlawful command influence” and it comes in two varieties: actual influence and the appearance of influence.


Actual influence occurs when a commander improperly manipulates the criminal justice process to negatively affect the fair handling of a case, but that’s not what the defense is arguing in the SEAL prosecution.

They’ve invoked the appearance of unlawful command influence and spent three days unveiling what they say is evidence pointing to it in the Kalach case.

First, there are a series of messages exchanged between the SEALs’ former commander -- now retired Rear Adm. Brian Losey -- and the Navy’s judge advocate general Vice Adm.James Crawford III that occurred in the midst of great pressure from the media, Congress, senior military leaders and their civilian overseers.

Although Losey appeared in early 2016 to be hedging at reopening a probe into the SEALs, Crawford told him that Smith already was being scrutinized for allegedly bypassing traditional investigative processes — possibly sending a warning to junior leaders that the Navy wanted the commandos prosecuted.


The Pentagon blocked Smith’s promotion and he might never pin on a star before he’s forced to retire at the end of the year. A later Navy review found that he did nothing unlawful but his course of action was determined to be imprudent.

In their exchange, Crawford also spoke vaguely about wider issues for the military to consider that went beyond the initial investigation of the four SEALs.

When retired Air Force Col. Billy Lee Little Jr., now a Navy investigator for criminal defense attorneys, met with Losey later to ask about Crawford’s involvement in the case and what he meant by these wider issues, the former SEAL leader allegedly became agitated and fearful.

At one point in the interview, he allegedly snatched a sheet of questions Little brought and scribbled “political,” according to Little’s testimony on Tuesday.


“Political — that’s what we’re talking about. That’s why this looks bad,” defense attorney Vokey said.

The New York Times story sparked a request from U.S. Sen. Claire McCaskill, D-Missouri, for information on the Kalach case partly in order to blunt a renewed attempt by fellow senator Kirsten Gillibrand, D-New York, to remove the authority of military commanders to try sexual assault and other serious cases, such as war crimes.

Retired Naval Criminal Investigative Service supervisor Mark O. Fox also testified that in early 2016 he sent out an email saying that there was significant “E-ring interest” in what happened at Kalach.

The outer wing of the Pentagon, the E-ring, houses the offices of the Secretary of the Navy and a host of four-star officers.


In early 2013, after he was cleared by Smith of the crimes, Swarts ran into Rear Adm. Szymanski during training at Virginia’s Ft. Story.

In his testimony, Szymanski agreed that he told him, “Hey, I’m glad that all got cleared up and worked out.”

Four years later, he charged him with war crimes.

Szymanski conceded that critics might have valid questions about how all of the Navy actions in the Kalach case might appear, but insisted that he based his decision on new witnesses uncovered by investigators and strongly insisted that he never thought of Smith’s fate when deliberating on what to do.


“I’m not looking for promotion,” he said.

Playing out behind the scenes was a secret probe by the U.S. Department of Justice, which defense attorneys also say was prodding the Navy to do something.

On Tuesday, the criminal defense attorneys revealed that federal prosecutor Michelle Pettit quietly led a grand jury probe in San Diego that put two of those new witnesses against the SEALs on the stand but triggered no indictments.

Pettit has been linked to another controversial case involving Crawford — the investigation of several SEAL trainers following the May 6, 2016, drowning of Seaman James Derek Lovelace in a Navy pool.


In July, whistleblowers submitted a slew of internal Navy records to The San Diego Union-Tribune. They included an email sent by Navy Capt. Donald King — the staff judge advocate for San Diego’s Navy Region Southwest — to Pettit and Blair Perez, the executive assistant U.S. attorney for the Southern District of California.

King wrote that Crawford had “ordered a second look” at his team’s recommendation to forgo charges against SEAL trainers who were present when Lovelace died, a decision reaffirmed at every other layer of the Navy.

Both Perez and Pettit are military attorneys in the Navy reserves, with Pettit also serving as an appellate judge on the Navy Marine Corps Court of Criminal Appeals, which raised concerns from the criminal defense attorneys in the Lovelace case, too.

A memorandum of understanding between the U.S. Department of Justice and the Pentagon gives DOJ primary authority over all criminal matters, but the civilian agency routinely cedes it to the military.


When asked by the Union-Tribune whether Pettit was acting as a commissioned military officer during the Kalach grand jury probe or as a civilian federal prosecutor, SEAL defense attorney Vokey, a retired Marine, said, “That’s what we’d like to know.”

“We have no comment on this. Thanks,” wrote U.S. Attorney’s Office spokeswoman Kelly Thornton in an email on Wednesday.

In her spirited rebuttals before Cmdr. Gaston, prosecutor Lockhart cited murky language in the emails between Losey and Crawford and lambasted the criminal defense team’s case as long on speculation and conjecture but short on proof.

“There’s no other evidence that he did anything in this case,” she said about Crawford.


And even if everything in the defense’s argument were true, she added, there’s already been a fix.

The court-martial was ordered by Navy Region Southwest commander Rear Adm. Yancy B. “Lurch” Lindsey, a career aviator who knew nothing about Capt. Smith or the SEALs when he deliberated on the evidence culled by the multiple investigations. No one is suggesting he’s biased, she said.

That’s an important point, according to Robert Feldmeier, an attorney who specializes in court-martial appeals at the New York-based firm of Tully Rinckey.

A former soldier who later prosecuted cases and served as an intelligence law attorney for the National Security Agency, Feldmeier wrote the winning appeal in U.S. v. Boyce, a landmark but controversial military case decided last year that guided the arguments of both sides throughout the week on the Kalach case.


“Boyce doesn’t support the defense here but the court can examine the matter,” Feldmeier said by telephone.

In Boyce, the court could see that a general removed a subordinate because the Secretary of the Air Force had lost confidence in his ability to court-martial alleged sexual criminals. But there’s nothing like this in the Kalach case.

Instead, the defense team is trying to expand the legal theory by saying key influential senior leaders, like Crawford, can exert inappropriate pressure on admirals like Losey, guiding a case toward prosecution when it might have faded away.

“The appeals courts are becoming more and more concerned about the political influences and pressures that are playing on convening authorities,” Feldmeier said. “They’re looking with less and less favor on arm twisting, overt or otherwise.”


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