Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (26 page)

“I cannot do that,” Jon told him. “I have not lied, and I cannot say I did, because that wouldn't be true either. They've already asked me to lie about a dozen times, and I can't do it.”

Seven thousand miles away, Threatt smiled the smile of the legal predator. Rarely had he interviewed an accused man so plainly not guilty.

“Well, Jon,” he said, “Article 15 is the easy way out for you, the path with the least risk to you personally. The other way is court-martial. And that's considerably more serious, because that can very easily involve jail. For Matthew, on an assault charge, that could mean five years, if the three of you were found guilty.”

“I cannot do anything which requires me to admit any wrongdoing,” replied Jon. “Either by my teammates or by myself. None of us is guilty of anything.”

“And that,” said Threatt, “leaves us with the courtroom. And there you will be given a clear opportunity to defend yourself, and your legal counsel will cross-examine the prosecution's witnesses.”

“So if we want to fight it, we elect to be court-martialed?” Jon had swiftly grasped the situation.

“That is correct,” said Paul. “It's a dangerous course of action because of the obvious downside with a guilty verdict ...”

Jon remembers interrupting: “Paul, there can be no guilty verdict. All three of us are one hundred percent innocent. Every SEAL Team member will stand up in court and speak for us. We already have those assurances. The prosecution has nothing except the word of the master-at-arms kid who deserted his post at least twice during that evening. And he's a nervous wreck. I wouldn't believe him if he told me it was daylight.”

Threatt calmly warned that “trials can go wrong, and innocent men have been found guilty ...”

“Yeah, but no three people in the history of the US Navy have ever been as innocent as us,” replied Jon. “Matt McCabe never laid a finger on that little Iraqi creep. Neither did Sam, and neither did I. Matt didn't lie, Sam didn't lie, and I didn't lie.”

He added that this Westinson character had been wrapped up in cotton wool and protected, encouraged, and even guarded from the very beginning, “ever since he came out with that cockamamie story about Matt,” said Jon. “No one has corroborated it, and no one with a lick of sense believes it. That's all they've got, Lieutenant Threatt. Nothing else.”

“Then, Jon, it's my duty to advise you to go to court-martial. And there I will do everything in my power to defend you. I will come to see you as soon as possible, and you should consider the possibility of retaining a civilian lawyer as well.”

Jon knew nothing about legal expenses in the civilian world. He did, however, understand that it was unlikely to be cheap. “Are we talking $50,000, maybe $100,000?” he asked.

“Very possibly,” replied Threatt.

“Well, my family does not have that kind of money to throw around, and I really do not want to involve my family. The shame of my situation would be bad enough.”

“In this case it's possible the money may come from somewhere unexpected,” said the naval lawyer mysteriously. He would elaborate no further. But already there was a seed planted in his mind.

Somewhere deep within him, Threatt knew the American public was capable of rising up in fury when they heard that three heroic Navy SEALs were being court-martialed in Iraq for allegedly punching the local mass murderer—the same man who in 2004 had publicly strung up the bodies of four US citizens after having shot and burned them alive—the Butcher of Fallajuh, no less.

Jon hung up the telephone and waited to consult with Matt and Sam. By the time they met, all three of them had spoken to naval lawyers, and it was decided they should make one last-ditch effort to get out of all this with a plea to the highest authority.

They each requested a General's Call—a far less serious meeting with General Cleveland than Article 15. This was a meeting at which they could once again protest their innocence without signing a written confession, which was, in truth, abhorrent to them all—to Matt, because he had not whacked anyone, to Sam who knew darned well Matt had not whacked anyone, and to Jon because of the lies.

But all of this swiftly became irrelevant, because the request to plead their case in front of Major General Charles Cleveland was refused. And that concluded phase one of their ordeal. On the night of September 25, 2009, the three SEAL petty officers, Matthew Vernon McCabe, Jonathan Keefe, and Sam Gonzales, formally requested courts-martial, a drastic step in anyone's fight to establish innocence.

A court-martial was the only avenue left open to them, as Major General Charles Cleveland would neither listen to nor even see them. And thus far the only intellectual drift any of the SEALs had seen from the General's henchmen was either accusatory, disbelieving, manipulative, or occasionally scornful. A meeting with Cleveland was a dead end.

For the first time Jon, Matt, and Sam understood they must go to trial and plead their case in a room of strangers, before a judge and/or jury.

Still, at least the strangers would be neutral, which was a sight more than anything they had encountered thus far. And certainly they realized that a naval court-martial was an extremely serious matter, its origins stretching back to the days of sail, to the eighteenth century, when it adopted procedures from the 1749 British Naval Code.

Since 1865 there have been US naval officers belonging to the Judge Advocate General's Corps. And today there is a worldwide organization of 730 JAGS providing legal and policy advice to the secretary of the US Navy in all matters concerning military justice.

The JAG Corps' official insignia incorporates a silver “mill rinde,” the ancient French symbol of justice for all, under the law. Its purpose was to keep the great stone wheels of the flour mills separate and even, and thus it represents the fine balance the law must observe between the accused and the accuser. The English law also adopted the old iron mill rinde as a symbol of even-handed judgment.

Which all sounded excellent to Jon, who, right now, had his own JAG. Even in their short phone conversation, Threatt had made it very clear that he believed in his client's innocence.

But Matt was scared. He had now been told how dangerous it was to appear before a court-martial on a charge that could lead to prison, but he saw no way out. He understood he may need a substantial amount of money to fund his own defense and did not have the slightest idea where to turn.

The fact was he had no one. And he might very shortly owe a law firm $100,000, which he did not have and, in the foreseeable future, had no way of getting. He did, however, understand he could not go into a courtroom charged with beating up a high-profile Iraqi prisoner without a civilian attorney in his corner.

In desperation he called his father and explained what had happened. He had no idea whether his grandfather had anything close to sufficient cash, but he had to start somewhere. He did not know whether Jon might somehow come up with the money, but the McCabes almost certainly could not. Of that he was sure. Neither could Sam's family. Matt had no idea what he and Sam would do.

“So far as I could see,” he recalled, “I either found a way to raise
tens of thousands of dollars or I might end up in the friggin' slammer. Beautiful, right?”

Matt's grandpa said he would, of course, help, but he could not raise anything like $100,000. And all three of the SEALs now understood the gravity of their situation. They tried to find details of the court-martial procedures on their computers, but it was not easy.

They did, however, discover there were three types of court-martial: summary, special, and general, the last being easily the worst, as it could not only impose dishonorable discharge, imprisonment, or even have officers fired, but it could actually sentence a man to death for certain offenses.

The summary court-martial was for relatively minor charges of misconduct and usually involved either a reduction in pay or a month in jail. The three SEALs had indications that their own case was anything but minor. The military was regarding it as a potential Abu Ghraib all over again, and the prospects were not pretty.

None of them thought they'd be whisked through a summary court-martial, but they did think they might land the special court-martial, the intermediate level–trial system. This involves a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers forming a jury. This court could remove two-thirds of a man's pay for a year but, on the bright side, was not empowered to impose a sentence of longer than one year's confinement.

What they did not know was that their request for a court-martial trial had sent a chill of apprehension through the upper reaches of the US High Command in Iraq, both Army and Navy. The words “prisoner abuse” doubtless caused obvious consternation.

And there was plenty of consternation, as seen when General Cleveland's staff did everything they could to persuade the SEALs to change their minds. But there was no trust there any longer. Matt, Jon, and Sam believed they would be cajoled and lied to. Essentially they had had enough. And the Army command at Qatar had little option but to allow the case to roll ever upward.

There's no point in allowing such a matter to take any other course; sending it upward takes the responsibility with it. Which was why,
only four days later, an official communiqué was transmitted to General Cleveland's office, “pursuant to his request to dispose of the allegations of misconduct by SO2 Jonathan Keefe, SO1 Sam Gonzales, and SO2 Matthew V. McCabe.”

It read,

I release jurisdiction to you, and authorize you to dispose of these matters in any manner you deem appropriate. This includes the authority to convene courts-martial at any level, up to and including General Courts-martial, and to refer charges concerning these individuals to any court-martial.

Signed: David Petraeus, General, US Army

“Four-star level, right?” said Matt, a touch sardonically, when he was informed. “No bullshit. From a phantom bang in the guts, straight through to the death penalty. That's what I like about the Army—no half-measures.”

Three days later the critical document was sent from Special Operations Command Central, MacDill Air Force Base, Florida. It was headed, SPECIAL COURT-MARTIAL CONVENING ORDER 1-09. And it was signed by Charles T. Cleveland, Major General US Army, Commanding:

A special court-martial is convened and may proceed at Naval Base Norfolk, Virginia, or any authorized place as directed with the following members:

Captain G. O'REGAN, U.S. Navy; President;

Commander J. TORRES Jr., U.S. Navy;

Commander K. L. ICARIUS, U.S. Navy;

Lieutenant Commander C. R. LARSON, U.S. Navy;

Ensign B. J. BEYER, U.S. Navy; and,

Chief Warrant Officer 4 A. D. BOWER, U.S. Navy.

The Army might have taken over the reins of the proceedings, but it remained a US Navy issue. The exchange of letters between Generals Cleveland and Petraeus had nailed it all down. Matt, Jon, and Sam
would stand trial in a naval courtroom, and if recent events were any guide, they would probably be tried separately.

That meant three separate courts-martial, at withering expense. But expense was no object in this case, not in the military's relentless search for political correctness, for being seen publicly to have done the right thing—protecting a prisoner's human rights—and being seen to have punished the “miscreants.” Which is all very fine if they are indisputably guilty.

But if they are not, that search for political correctness may prove catastrophic. Especially if Threatt's instincts proved correct: the American public and media would loudly disapprove of heroic US Special Forces being dragged through the military justice system on the word of a notorious al-Qaeda terrorist.

That kind of uproar could cause lasting humiliation for the men who had elected to charge the three SEALs. And in the fullness of time, it may prove to be a thoroughly regrettable course of action, from which it might take years to recover.

Meanwhile it all remained a deep secret inside the confines of the military. And the only humiliating that was going on was directed squarely at Matt, Jon, and Sam.

The day after General Cleveland's court-martial letter was delivered, SEAL Team 10 vacated Camp Schwedler and embarked the aircraft for home, Virginia Beach, with their tour of duty in Iraq completed. The three SEALs facing court-martial did not go with them, however, and this caused their families to be very concerned.

Instead, the three men were ordered to continue their back-breaking menial tasks on the Qatar base, one of which was to load by hand several tons of old furniture onto dump trucks. “That was a bit of a killer, four hours at a time in 130-degree heat,” said Matt, who added wryly: “But the really great part was the US Army never once made us work with a ball and chain around our ankles.”

The truckloads of furniture were not all. There was, on the base, a gigantic warehouse, the size of two football fields, and the three SEALs were made to sweep it out, by hand with brooms, from end to end until it was free of dust and sand.

They were then transferred to the gymnasium and made to clean and sanitize the equipment. They cleaned bathrooms and laundry rooms—“stuff that had not been done in a year,” said Matt. “Just for the record, we completed the lot in one week. I mentioned before, no one can do anything better than us.”