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Friday, May 13, 2016


As a former active duty military JAG officer and civilian defense attorney who exclusively handles military cases, I have had the great fortune to interact with some of the most remarkable military members who are not only deeply dedicated to our country, but who have served, and sacrificed for, our country with incredible distinction and honor.  One such individual is my client Navy SEAL Rear Admiral Brian Losey, who is about to complete his tour as Commander of the Naval Special Warfare Command (NSW, under which are the Navy SEALs).

Any words I choose will likely fail to adequately capture the service of RDML Losey over the decades, and other current and former military members are coming forward to publicly rebut the recent negative public narrative about RDML Losey.  One of those individuals is Admiral (Ret.) William McRaven.  He, of course, is another of those remarkable military members, and his public support of RDML Losey is just one more example not only of what an exceptional officer and leader Admiral McRaven is/was, but how strong and independent military officers don’t blindly accept what is politically expedient.

First, some background and an explanation.  Normally, because this was an administrative matter, the details would not be publicly discussed.  However, because of the public statements and misinformation about it, particularly by Congress and some of the complainants in the case, I feel compelled to correct the public record.  

RDML Losey received the assignment promotion to NSW Commander at Naval Base Coronado after the saga of the case I represented him in, which included unjustified reprisal allegations and a slanted DoD IG investigation out of his previous command in SOFAFRICA.  The case arose after a baseless and anonymous complaint was made regarding the purchase of a plane ticket for RDML Losey’s daughter. 

That original anonymous IG complaint was immediately discredited, as the evidence clearly showed the ticket was privately purchased.  Trivial case closed.  The IG considers such an allegation, however, to be a “protected communication.”  And, commanders are prohibited from reprising against someone who they "suspect" made a “protected communication,” no matter how spurious the “protected communication” was.  As such, in order for there to be reprisal, there has to be a “protected communication” and the commander must “suspect” the "victim" of the alleged reprisal made that protected communication.  That is a very important predicate issue in this case.    

Although there was a limited population of individuals who would have known of his daughter's travel, that simply narrowed down who might have made the complaint. But the law of mathematical averages about "could haves and maybes" does not equate to the legal term of "suspecting" a particular individual.  

RDML Losey did not "suspect" any of the individual “whistleblowers” (as they’re being called in various press stories and Congress) who made the baseless protected communication.  These individuals were a clique of unit members who were disgruntled over the performance expectations and scrutiny of the new commander. Whoever made the original anonymous complaint (protected communication) had to be sufficiently ignorant to make not only a patently false allegation, but one so quickly and easily refuted by simple proof of purchase. Our best guess was it was someone other than those in the clique of complainants in this case and, according to reporting, it apparently was someone other than those in the clique of complainants in this case.  

Because the information available to RDML Losey did not rise to the level of "suspecting" any of the reprisal complainants of having made the ridiculous protected communication, the reprisal allegations should have been unfounded from the beginning.  But, the IG had their own interpretations, and they ignored the credibility and motive issues of the complainants.  Then, when RDML Losey took legitimate actions as commander to address performance and conduct issues of those within the clique of complainants, those actions were incorrectly construed by the IG as reprisal. 

The Navy did not blindly accept the conclusions of the DoD IG’s investigators, however, and justifiably assigned RDML Losey to his next important command of NSW at Coronado, and he was nominated for his second star.  For this, the Navy received unfair public criticism, to include by politicians who seem to take sport in publicly condemning any military commander or action they don’t agree with or that doesn’t serve their political agenda (see, for example, USAF Lt Generals Susan Helms and Craig Franklin).  The political noise then drowns out the truth.  Ultimately, the politics of RDML Losey’s case have resulted in his promotion to a second star being lost because politicians in Congress have promised not to confirm his nomination.     

As RDML Losey’s service as NSW Commander comes to a close, his case remains a topic of political rancor…but a more balanced public debate is finally surfacing.  Here is a link to an earlier Stars and Stripes article on the case:

In that article, they at least note that my rebuttal to the DoD IG “accused the inspector general of ‘investigative improprieties’ and being ‘fatally tainted by bias.’”

In response to a recent press inquiry, I provided the following on-the-record statement about RDML Losey and his case:

“RDML Losey has had a long and distinguished military career marked by his dedication to his units and their missions. As a commander, RDML Losey has always taken seriously his duties and responsibilities to do just that – command. In that vein, the actions at issue that RDML Losey took as a commander were based on his duty as a commander to hold members of that command accountable for their performance and conduct.

I will not go into specifics regarding the situation and I cannot speak to what actions the Navy has taken in response to this case, or their reasoning. However, in response to the slanted political narrative in this case, I will say the following…

I took strong issue in this case with the manner in which the IG investigations were conducted, to include my belief that there was a predetermined outcome that information was being gathered and/or interpreted to support. I also took issue with the motives and credibility issues of those witnesses I believed to be involved in making these claims. I maintain my belief that their baseless claims were made to shield themselves from accountability for their performance and conduct issues, and to attack a commander who was holding them accountable.

Politicians sometimes make highly charged agenda-driven statements that are based on incomplete or inaccurate information, or slanted interpretations that fit a certain narrative. For example, we see such slanted and inaccurate political statements about sexual assault allegations in the military justice system, and the impact of these political statements is literally destroying the military system as a system of justice and fairness.

Similarly, in RDML Losey’s case, there is a slanted and inaccurate political narrative that seems to ignore the facts and common sense interpretations. This includes ignoring the credibility and motive issues of those making claims against RDML Losey, and ignoring RDML Losey’s duty to command the previous unit at issue.”

Admiral McRaven’s defense and support of RDML Losey has been unwavering and powerful. His comments appear, for example, in the following articles:

In discussing political attacks on the military, Admiral McRaven first described RDML Losey, in part, as follows:

“…I have known Losey for more than 30 years. He is without a doubt one of the finest officers with whom I have ever served. Over the past 15 years no officer I know in the SEAL Teams has given more to this country than Brian. None. As a young officer he was constantly deployed away from his family. After 9/11, he was sent to Afghanistan in the early days to help fight the Taliban. From there, Losey participated in the final march to Baghdad and then stayed in country as a SEAL Task Unit Commander. Afterward he served as the deputy and then the commanding officer of SEAL Team Six during more tough fighting in Afghanistan.

Later he was posted to the White House in the Office of Combating Terrorism. He made rear admiral in 2009 while at the White House. He was subsequently sent back overseas to Djibouti, Africa, to do a 15-month month isolated tour as the commander of all U.S. forces in the Horn of Africa. As a result of that successful tour, he was given command of Special Operations Command, Africa (SOCAFRICA)…”

Later, Admiral McRaven makes the following crucial observation:

“…Although we in the military understand the absolute necessity to serve and respect our civilian leaders — and every good leader understands and appreciates the value of anonymous complaints to ferret out bad leadership — we also need civilians to understand that a strong military, particularly an all-volunteer one, needs the support of our civilian leaders, not the constant refrain of disrespect that seems so common in today’s political narrative.

Last month, after the decision to rescind Rear Adm. Brian Losey’s promotion recommendation became public, Losey addressed his junior officers. Instead of being angry and bitter over the outcome, Losey had nothing but praise for the Navy and the nation for which he has served so long. He encouraged the young officers not to get discouraged about the ruling against him, but to recognize that this is the greatest military in the world and we are fortunate to be part of it.

I would echo Losey’s sentiments. But to keep this the greatest military in the world, to preserve the strong civilian-military relations we have so long enjoyed, we must recognize that respect works both ways. Every time an individual lawmaker’s political agenda undermines the integrity of the men and women in the military, we weaken the fabric of the uniform…”

Now, an article has been published by Kim Dozier with The Daily Beast, that sheds more public light on the case, and provides more balanced details:

The Daily Beast details include describing some of the complainants’ credibility and performance issues. These were issues RDML Losey was attempting to address in SOFAFRICA, but which the IG incorrectly deemed reprisal – in what largely seemed like an attempt by the DoD IG to hang another high ranking trophy head on their wall. When Vice Chief of the Navy, Admiral Michelle Howard, reviewed the case, she apparently found that RDML Losey had taken appropriate action against the complainants. Her opinion is one of many that is ignored in the agenda-driven vitriol of politicians.

Finally, in rebuttal to the slanted political narrative that existed to date, Montana Congressman and retired 23-year U.S. Navy SEAL Commander Ryan Zinke defended RDML Losey on the floor of the House today:

Video of Rep. Zinke’s speech:


I rise today in support of Admiral Brian Losey, the current Commander of Special Warfare Command, our nation's top U.S. SEAL. He's entrusted with the honor of commanding all SEALs, all special boat units, and all support staff across this great country and across many theaters.

I’ve had the privilege of serving with Brian Losey at SEAL Team Six, Red Team. I can tell you, Brian is an outstanding officer, but it's the obligation of every officer to take action when he sees wrong; and Brian Losey did just that. He saw a problem and took action. He took decisive action because he knew the actions of others around him were wrong. Once again an entrusted, entrenched bureaucracy was allowed to hide behind threats, hide behind whistleblower, hide behind rules that were intended to protect command and not to erode it.

And yet those accusations discredited a great officer and the head of the United States Navy SEALs. I understand these [whistleblower] protections are important and they are necessary. But we cannot allow such protections to go against accountability and against the sanctity of command. In this case, the Navy reviewed the investigation on Admiral Brian Losey. They found him to be innocent and wrongly accused. I’ve seen the evidence and went through line by line. I fully support the Navy's conclusion and believe they were properly reviewed in this case. The DoD had different conclusions, and I believe those DoD conclusions from the IG are flawed and are cherry-picked.

Admiral Losey is highly regarded by his subordinates of all Special Navy Warfare community, and all SEALs who have served with him and under his command. This includes the Navy SEAL standing before you. I’ve known this man and his family for 30 years. Let me just give you a snapshot of Admiral Losey’s leadership, under his command of Navy Special Warfare.

The SEALs and those under his command have:

· Executed 654 total missions, have killed 461 high-value targets. every one of those targets, if given a chance, would do grievous harm to our nation.

· Have captured 60

· Wounded 32

· Rescued an American hostage

· Deployed an average of 250 days of a year

In 2015 alone in Iraq, Navy Special Warfare and its components were responsible for killing or capturing over 3,000 enemy combatants.

Admiral Losey personally deployed to Operation Inherent Resolve, Operation Enduring Freedom, and the 30 countries -- and deployed to 30 countries. Forces under his command are deployed to 70 countries across this great globe. They advance security capability, train over 6,000 of our allies.

Mr. Speaker, America, our men, women, and children, both at home and abroad, are able to sleep at night due to the leadership of Admiral Losey and those forces he commands. Admiral Brian Losey, I thank you for your dedication to command. I thank you for all you have done for the community, for the United States Navy, and for our grateful nation.”

I wholeheartedly second the statements of Rep. Zinke and Admiral McRaven. Thank you, RDML Brian Losey, for your exceptional service to, and sacrifice for, our country over several decades. Thank you Admiral McRaven and Rep. Zinke for your exceptional military and public service and for your public support of RDML Losey.

The shame of it all is not simply that an extraordinary Navy officer’s promotion has been lost and his reputation has been unjustly attacked, but that politicians have once again damaged the military with statements and actions that were, at best, ill-informed/considered and, at worst, intentionally slanted and agenda-driven.

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.

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