The debate concerning Lt. Col. Stuart Scheller, the Marine Corps officer that openly criticized the Joint Chiefs of Staff over the Afghanistan withdrawal, continues to prove my title point. For those of you not following it, here are the basic details:
- Lt. Col. Scheller produced a video where he expressed outrage over the suicide bombing in Afghanistan that killed 13 service members, as well as the withdrawal from Afghanistan in general
- He was relieved of command (he was in charge of the Infantry Training Battalion in Camp Lejeune, North Carolina) pretty soon after. He tendered his resignation after that.
- The details here get murky, but at some point he was ordered to go to mental health screening. He then continued to post videos and content, despite being ordered not to.
- The military placed him in pre-trial confinement, and he is scheduled for an Article 32 hearing next week.
For those that don’t know, and Article 32 hearing is where a military prosecutors argues before a judge about what charges a service member will face. The defense will argue against those charges, and the judge will send the prosecutor a letter saying what charges he thinks there is enough evidence to meet probable cause. Pre-trial confinement simply means the defendant sits in a jail cell until the Article 32 hearing, at which point the judge will recommend whether they remain there or not before trial.
Because of how the military chose to handle this case, its going to stay in the news for a long time. Plenty of other officers have resigned in protest, but they have pretty much all dropped out of the news. Unfortunately, the military services will take a black eye on the Scheller case, even if they win. People have already pulled this into the political arena, and once something is political, it tends to stick around. That’s a no-win situation for either side, because already people are making connections to Lt. Col. Vindman (remember him!?!) and his very different treatment.
Nobody wins here…except Lt. Col. Scheller. I’ll make my prediction here: Lt. Col. Scheller comes out of this with a military retirement and a nonsense charge on his record, and a subsequent request removes even that.
First, everyone is going to be glued to the news about his Article 32 hearing. The prosecutor has a pretty easy job here, since Scheller posted everything online. Open and shut right? Wrong. Any good defense attorney is going to fight tooth and nail to pick apart the arguments. Was Scheller really ordered to stop posting online, or was it a suggestion? Was the order in writing? Was it official? Was it done via official methods? It’s the defense attorney’s job to cast doubt into the charges.
Ultimately, some charges are going to get preferred, meaning Scheller will get charged with something. Likely, it’ll be Article 92 (failure to obey a lawful order) that will be the main and hardest charge to fight. The defense attorney’s next job is to drag this case out. Everyone that would sit on a court martial for Scheller right now is senior to him and likely angry over how he posted on social media. The defense is going to want time to pass, and lots of it. So we’ll see a lot of discovery requests and a lot of motions. We won’t have a court martial until summer of 2022. A good defense attorney will work hard to have it drop out of the news.
By that point, even if Scheller is found guilty of something, it’s unlikely he’ll be dismissed from service. Instead, he’ll then go to a Board of Inquiry (BOI) to determine if he should stay in the Marine Corps. That process might wrap up by the end of 2022. He should be at 18 years in the Marine Corps, and thus so close to retirement the BOI will likely recommend retention until 20 years. The Marine Corps certainly won’t promote him, but if he wants, he can finish serving and then leave. Granted, this assumes he wants to stay, since he could simply resign and walk out. But by pushing for a court martial, we almost guarantee that Scheller will get a chance to retire.
Now, what could the military have done differently? Simple: accept his resignation immediately, put him on terminal leave, issue him a Letter of Instruction and call it a day. Then, when Scheller makes statements about Afghanistan, let him talk. If you’re smart and issue detailed, written orders, Scheller will probably incriminate himself multiple times, and as any police officer will tell you, once someone starts talking, it’s only a matter of time before that person says something incriminating. Once you have a massive body of evidence, then you can release a statement that says something like this:
“Lt. Col. Scheller announced his resignation from the Marine Corps, and the Marine Corps accepted it and issued him a timeline so that he could quickly turnover and transition to civilian life. The Marine Corps supported him, like we support all our Marines, and tried to ensure Lt. Col. Scheller could transition without issue or delay. Unfortunately, instead of following these instructions to prepare himself for civilian life, Lt. Col. Scheller continued to engage in activity that violates the UCMJ, despite repeated written orders to the contrary. Because of his actions, we are now pursuing charges via the Court Martial system.”
Now, people will still cry foul, and anyone that wanted to use Scheller as a political weapon against the Biden administration is still going to do that. But the people in the middle, the ones that normally want folks to follow the law and don’t like politics in general, those people will read the above statement and think “Sheesh, what was Scheller thinking?” It’s a simple way of shifting blame. You don’t have to argue his points, and you won’t win by doing that. People don’t trust our generals and admirals (doesn’t help when they have hostile work environments), and trying to argue about the finer points of Afghanistan isn’t a winning plan. Instead, you deal with people like Scheller by giving them exactly what they want. From a prosecution point of view, Scheller is golden material, because he will literally write your case for you.
Now, I’m not saying the Marine Corps, or Scheller, are wrong. Maybe the Marine’s have a good reason to push charges and put him in pre-trial confinement. They have more information than I do. But pre-trial confinement over social media posts will get conflated with “punishment over mean tweets,” and you couldn’t have written a more political talking point if you tried. I’m also not saying Scheller is wrong. Many of his points are valid, which is why the greater danger is all the service members that will leave over the next 4 years as fallout from this and other decisions.
Watch Scheller’s case over the next year and let’s see how my prediction plays out. And remember, nothing I say should be construed as official positions or policy of the Department of Defense, Department of the Navy, or any other government agency. I’m just a poor author writing about my personal opinions, so you should buy my book from Amazon to help me out.
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