Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (28 page)

Like it or not, the American public
loves
the SEALs. They see them as the bravest of the brave, the hard men the US military sends in when the going gets tough. They are regarded as the frontline of US military muscle, the American warrior class who will charge in where others fear to tread, the inevitable spearhead when defeat is unthinkable. They make America proud. And when they die in combat this makes the nation sad. And when they come home in body bags the nation quietly mourns.

If you pick a fight with these guys, you better know precisely what you are saying. Because no one's going to think much of you if you start a fight with the beloved SEALs. And there are two rules to remember: (1) anyone saying anything bad about them is an unprincipled bastard and (2) the SEALs have collectively told fewer lies than General Washington, and if you plan to disbelieve them publicly, you're on the wrong side before you even get out of the starting gate.

In cases such as these, the force of public bias must be carefully taken into consideration. The military is always the loyal servant of the US government, and in turn, the government is elected by the people. And any time either the military or the politicians decide to press ahead against the wishes of the populace, alarms should sound.

Because the public does not like it when high-ranking military officers—whom they trust cautiously—pillory Navy SEALs, whom they trust implicitly. And in this case, it is inconceivable that dire warnings were not heard all over the US Navy's inner sanctums not to mention the Pentagon, the Army, and anywhere else the shrewdest minds were active.

We now know that in the months leading up to the courts-martial senior US Navy legal officers were voicing unease about the forthcoming debacle. In the Naval Legal Service Office (NLSO), Mid-Atlantic, in the Norfolk Yards, wise words of warning were frequently heard.

But the trouble was not only ahead; it was also all around, and the senior officers, doggedly pressing on with the charges against probably innocent men felt that turning back now was impossible. In hindsight
nailing the real problem is simple: the Navy authorities had, with lightning speed, jumped onto the wrong side of this conundrum, believed entirely the wrong people, and found themselves stranded—no retreat. And with every passing week the situation worsened.

It was now edging toward mid-October. And there were not only naval JAGs involved, wanting documents and demanding discovery, but there were also civilian lawyers, men like Neal Puckett and his staff as well as Greg McCormack and his paralegals, who were demanding the statements both from the SEALs and their accusers, requesting the information right now, insisting that everything be made available to the legal teams.

This was clearly enough to put the fear of God into the Navy's legal services, and the delays became legion, particularly as the reliability of the prosecution's star witness, Brian Westinson, was so plainly vulnerable to attack. The prosecution's only other “witness” was the transparently dishonest, world-class liar and murderer, Ahmad Hashim Abd Al-Isawi.

For the first few weeks following the initial requests, there was a kind of Mexican standoff, with the military playing an unrelenting defense, pointing out that the statements of SEAL Team 10 were classified and that the process of declassifying them was long and detailed. And this brought any forward movement to a virtual standstill.

By now there were dozens and dozens of pages, all sworn to, signed, and re-signed by every Navy SEAL who had been anywhere near the prisoner's holding cell in the early hours of September 2. And every one of those written statements declared that no one had hit Al-Isawi, no one had seen anyone else hit Al-Isawi, no one could even imagine a SEAL hitting Al-Isawi, and, yes, each and every one of them was prepared to stand up in a military court and swear to God that their combat brothers, Matt McCabe, Jonathan Keefe, and Sam Gonzales, were innocent of any wrongdoing.

But to the defense teams, the statements remained unavailable. And because no trial or court-martial under US law could proceed without due discovery afforded to the defense, there could be no trial, no setting in which the accused can challenge his accuser. Right now
the defense had no means of examining the evidence offered against their clients. This alone would be quite sufficient to impel any self-respecting judge to throw the entire thing out or, to use judicial language, to abate the court-martial (postpone it indefinitely).

On the one hand, the US military was very obviously nerve wracked about the paucity of their evidence and feared that the civilian defense counsel would rip apart their witnesses, Westinson and Al-Isawi, in cross examination. On the other, they could scarcely withhold the documents for fear that the judge would cancel the court-martial.

There is no record of the personal hopes and demeanor of Major General Cleveland during this time. But there have been suggestions that he was not alone in his quagmire. Perhaps the general was certain in his own mind that the SEALs were guilty and that Westinson and Al-Isawi were men to be trusted.

But it appears more likely that political pressure was being exerted, that the White House was prepared to do anything in its power to avoid another prisoner-abuse scandal on the scale of Abu Ghraib. And this Al-Isawi character was an extremely high-profile character. President Obama had already made it clear that the United States would not shrink from its obligations to act with fairness and justice for all, no matter the nationality or circumstances.

Excessive violence would not be tolerated, and those guilty of unreasonable force against a captured detainee would be brought to task. It would not be unfair to mention here that some people thought President Obama was somewhat obsessed with detainees' rights.

Hauling three SEALs with impeccable military records before a court-martial might cause a local public uproar, but that would not be comparable to an international condemnation of US tactics on foreign soil. That would indeed make life very difficult for the US president and might even cause a demand for a US apology to the Iraqis and the universal anger of the entire Middle East.

Throwing Matt, Jon, and Sam to the wolves would be a small price to pay on an international scale of US humiliation. Unless, of course, you happened to be Matt, Jon, or Sam. In this case the perspective from the Oval Office might very well have been different from that of
most Americans. And there is much to suggest that Major General Cleveland may have found himself caught up on the horns of a very tricky dilemma: to obey the wishes of his commander-in-chief or to sink these tenuous courts-martial without a trace.

The trouble was that it had all gone too far, and now there was no turning back. These SEALs had
demanded
courts-martial because it was the only way for them to clear their names, to prove their innocence in a court of military law. And they had that right. No one could take it away from them.

Nonetheless, there was disquiet down in the NLSO Mid-Atlantic headquarters on Maryland Avenue, deep inside the Norfolk Base. But that disquiet was surpassed in the branch offices in Little Creek's Naval Amphibious Base and NAS Oceana in Virginia Beach. Because men of Special Warfare Command surrounded these legal offices, and as the month of October proceeded there was a rising anger among the SEAL community that they were somehow being betrayed.

Senior legal counselors, some of whom had spent a lifetime in the US Navy, firmly believed that even if the prosecutors were correct and Matt had given this captured murderer a bang in the slats, the American public, with its irritating surfeit of common sense, would say, “So what?” And then: “At least Matt McCabe didn't cut off his head or shoot him or burn him alive in a car and then mutilate him and drag his body through the streets before hanging him from the Hampton Roads Bridge. What do we care if he gave him a short punch in the guts that never even left a mark? And now you want to court-martial Matt, the assault Team leader that captured the terrorist? Are you out of your minds?”

Over and over senior lawyers warned of the dangers the prosecutors faced. Even if they were right (hugely doubtful), they were in a no-win situation. If the court found the three SEALs not guilty, the Navy would be subject to utter ridicule. If they were found guilty and punished, there could be riot conditions all over the country.

However, in the minds of several Navy JAGs there was one great hope: Robert M. Gates, the twenty-second US secretary of defense, appointed by President George W. Bush in December 2006 and still serving under President Obama.

Secretary Gates, former director of the CIA and deputy national security adviser to President George H. W. Bush, was renowned for his capacity to make balanced, fair, and reasonable judgments. Some people believed he was the best defense secretary in the history of the United States and that there was no way he was going to allow the US Navy dragged through the mire on this one. If he wished to, some thought he could overrule and order the court-martial proceedings to stop.

Secretary Gates had vast experience in making sound judgments. He was a former president of Texas A&M University and had served under James A. Baker III, President Reagan's former chief of staff who also cochaired the Iraq Study Group (ISG) in 2006, which had prepared the most important documents on the Iraq War. Gates knew the country along with its endless difficulties. He also understood the criminal brutality of men like Ahmad Hashim Abd Al-Isawi. Many naval lawyers were confident Robert M. Gates would not tolerate these almost-farcical courts-martial.

But inside the Pentagon there was already the beginning of an enormous dichotomy involving the office of the secretary of defense. Even as early as mid-October there were few legal officers in the Pentagon who were not acquainted with the burgeoning uproar surrounding the phantom whack in the stomach Matt McCabe had not delivered.

Although technically the secretary of defense could intervene, no one could recall that ever having happened before. If he did step forward and overrule the lower commanders, he would probably need to take control and claim full authority before convening his own military court. He could not, however, dismiss the current charges out of hand, but he could most certainly encourage others to do so.

Basically Secretary Gates would have to jump through a whole lot of hoops, and that would probably contribute to a bigger public outcry than the one already anticipated as soon as the media got ahold of the story.

The fact was that there were very definite legal obstacles standing between the military boss and the potential action of overturning decisions made by the lower-level commanders, who preferred to proceed with the prosecution.

There was a court-martial rule that prevented intervention under the heading of “unlawful command influence.” This rule stated that no high-ranking commander may interfere with a court-martial conducted by lower-level commanders regarding the “functions of ... such persons in the conduct of the proceedings.”

Secretary Gates could, however, step in after the court-martial to reduce penalties. But in this case the secretary's lawyers would doubtless advise against this. It was the “unlawful command influence” that really stood in the way. For the high command to start telling lower commanders to do this, that, and the other in a court-martial case, would, strictly by the book, be illegal.

The military legal process in the case of judicial punishment is commander-not prosecutor-driven as it is in the civilian legal process. During the very early discussions the highly influential Frank Gaffney, former assistant defense secretary in the Reagan administration, stated that in his view the problem stemmed from an early policy decision by the Obama administration.

“I cannot,” he said, “imagine anyone in uniform, JAG officers included, supporting this prosecution.” Gaffney thought that the whole issue was “not inconsistent with the Justice Department's decision to try 9/11 terrorists in US civilian courts, with full constitutional rights.”

He added that some people may need reminding that “these terrorists are killers.” Capturing them may bring vital intel, which may save American lives. “If we cannot get the intelligence out of these people,” he said, “that may
cost
American lives.” It was, of course, a thinly disguised compliment to the SEALs' desert mission, led by Matt McCabe.

All of which left the Republican Robert Gates in a somewhat awkward spot. And all the while the requests for the documents of discovery poured relentlessly through the doors of the Navy's legal department. And no one appeared to know what to do—whether to hand them over to the lawyers or hold back and hope something might break in the prosecution's favor.

And all through these turbulent yet fruitless weeks, Jon recalled driving over to his lawyers' offices several times a week and waiting
for the statements to arrive, especially the ones from the SEALs, the ones from “my brothers, who all swore to God we were innocent.”

Jon's principal civilian lawyer, Greg McCormack, was standing shoulder to shoulder with the Navy JAG Paul Threatt, demanding to see and examine all the statements made by Brian Westinson, upon whose hesitant words the entire case for the prosecution rested.

The same applied to Matt and Sam—back and forth to Alexandria and Virginia Beach, getting nowhere, trying to stay calm, trying to ignore the possibility of conviction and ultimate disgrace for a crime no one had committed.

In fact the longer this standoff went on, the more certain the defense teams were that the issue was already in front of the highest authorities in the land. It was inconceivable that neither the White House nor the offices of the defense secretary were being kept up to pace with the proceedings.