Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (29 page)

And this produced a ray of hope—that Secretary Gates would find a way to “discourage” the prosecution from going ahead, even if it were against the wishes of his commander-in-chief.

Because if Gates could not slam his fist on the table and demand an end to these plainly suspect courts-martial of three American heroes, then no one could. And the three SEALs would simply have to try to raise the money and defend themselves against a shockingly unfair world.

Meanwhile, October turned into November, and the miracle was that no word of the forthcoming courts-martial had leaked. The charges were formally issued to all three defendants during the last four days of October, and the pure malice surrounding how these papers were served came as a major shock to both Matt and Jon, despite that they had become pretty accustomed to malice by now.

They were suddenly informed, in the middle of a working morning, that they were to report to the Navy legal offices at the Norfolk Base but that they were not to travel in the same vehicle, as this is banned for personnel on serious charges.

So they went separately and were ordered to report to an enlisted clerk, E3 pay grade, who was standing in the stairwell. Jon went first
and was formally handed the charges that threatened to destroy his life. Matt had to wait, and then he too was ordered forward to face this clerk of inferior rank and receive the documents his accusers prepared.

“Once again,” said Jon, “we were treated like men who have already been found guilty of something. There was no dignity for us, standing in the stairwell, being summoned to have these disgraceful charges handed to us.”

At this point the trials were scheduled for January, with times and places to be decided. And what preceded those trials, through the late fall and early winter, was some kind of daily living hell for the three SEALs, now firmly established as total outcasts from their own tribe. They were restricted to Virginia Beach except to visit lawyers. Each one of them was scared they might lose their homes in order to pay the legal fees, the sum total of which were not yet known.

Returning home after such a tour of duty is traditionally a time for the continuing development of Team members' careers—professional development at the SEAL schools for snipers, JTAC/comms, and breachers. Everybody else was going, but not Jon, Matt, and Sam. They were not allowed to progress through this critical phase of their education, where careers were made and men were raised up to be the best they could possibly be.

Those schools represented a SEAL's gateway to the future. And they were denied to the three accused men. All of the SEAL platoons were trying to help them, writing letters of recommendation their behalf. The commander who ran Troop 3, under which stands both Echo and Foxtrot Platoons, did everything in his considerable power to place Matt, Jon, and Sam in the correct educational strata.

But their status was already being controlled at a two-star level, way above the authority of any SEAL commander, and the result was predictable. Every application was turned down, even though Jon was already slotted to attend sniper school. There were no proper duties for the accused men, nothing until the charges against them were either proven or cast asunder.

But deep inside the Navy legal offices there was already serious consternation about the cases, especially bringing Al-Isawi to the United States to face the men he had so spectacularly accused of beating him.

Every defendant has a right to confront his accuser in a court of law, and the military court is no exception. No one with a lick of sense would believe
anything
Al-Isawi said, and the Justice Department had compounded the issue by granting all terrorists appearing in a US court of law the same rights as a US citizen.

That meant Al-Isawi, if faced with withering cross-examination by attorneys like Neal Puckett and Greg McCormack, would be entitled to identical protection as any American. His own lawyers would be swift to step in:
“With respect, may I remind your honor that Mr. Al-Isawi is not on trial here? And he has the right of refusal to answer that question.”

None of the Navy JAGs looked forward to that, whichever side of the fence they occupied. And the senior command was quickly discovering that Al-Isawi would serve everyone better if he stayed in Iraq, especially for Matt's trial. Neal Puckett would plainly make short work of the unmarked, unharmed Iraqi who claimed he'd received the mother and father of a beating from a big, bad, mean Navy SEAL. After all, the judge might throw it out, right then and there.

Week in and week out, the demands for full discovery came in from the defense lawyers, who so far had received access to nothing. Rumors of this deadlock continued to circulate through the Norfolk Base and the nearby Navy SEAL headquarters. Literally hundreds of personnel were fully aware of the situation, and most of them were not only angry, but they were also aware of the apparent dangers to everyone on active SEAL combat missions.

If it could happen to guys like Matt, Jon, and Sam, it sure as hell could happen to anyone else. And the three Team 10 guys had been forced to hire expensive lawyers—top US advocates who could go into a court-martial and fight for their clients. It did not escape Virginia Beach SEALs' attention that in these early years of the twenty-first century all Special Forces might soon need lawyers, at least they would if they were expected to fight an enemy.

It was merely a matter of time before this seething naval tragedy kicked its way out of the military strongholds of southeastern Virginia and into the public print and airwaves.

It finally happened around noon on Tuesday, November 24, 2009. Fox News broke the story nationwide, a tad opportunistically, beneath the headline:

NAVY SEALS FACE ASSAULT CHARGES FOR
CAPTURING MOST WANTED TERRORIST

This was nearly true. But plainly inaccurate. The assault charge against Matthew McCabe was not for capturing the Butcher of Fallujah; it was for allegedly giving him a whack in the stomach several hours after he was brought into SEAL custody.

Still, FoxNews was operating on a leak, and leaks have their own brand of frustration: wonderful information but not enough of it. They are sufficient for a news organization to run with the story but insufficient to lay out, chapter and verse, what actually was happening.

What do we do? Run with scant detail? Or make a few things up, fill in the gaps as best we can, and then stand behind the confidentiality of our source who, plainly, in time-honored journalistic traditions, can never be revealed.

That mind-set was not unique to Fox, which deserves massive credit for getting ahold of the story before anyone else, instantly jumping onto the correct side of the argument, and leading the way for everyone else to follow in their wake.

What Fox did was, as Sherlock Holmes would have concurred, elementary. All of their journalistic instincts told them that the US Navy was a gigantic force to set itself against three guys—hardworking, brave, and loyal patriots. These men were Navy SEALs, America's elite commandoes. So as far as Fox could see, they stood alone against a new foe whose resources were practically limitless.

But not any more they didn't. FoxNews came up with a story with a slant crafted to touch the heart and soul of every American. They wrote it with immeasurable skill. Just the names touched a thousand heartstrings—Matt, Jon, and Sam, proper American boys from Ohio, Virginia, and Chicago: every father's beloved son, every family's quiet hero.

Fox laid it right out. The three SEALs had secretly captured one of the most wanted terrorists in Iraq, the alleged mastermind of the murder and mutilation of four Blackwater USA security guards in Fallujah in 2004, “and now three of them are facing criminal charges.”

After just one paragraph the battle lines between the media and the US Navy were drawn. FoxNews understood the American public would
never
put up with this. And once they'd established Al-Isawi's dishonesty, right at the top of the broadcast, they unleashed the cavalry: “Now, instead of being lauded for bringing to justice a high-value target, three of the SEAL commandoes, all enlisted, face assault charges and have retained lawyers.”

They listed the charges against Matt, Jon, and Sam and then interviewed Neal Puckett, who stated, “The SEALs are being charged for allegedly giving the detainee a punch in the gut.”

Neal proceeded, ingenuously, to add fuel to the FoxNews fire, adding, “I do not know how they are going to bring this detainee to the United States and give us our constitutional right to confrontation in the courtroom. ... We have terrorists getting their constitutional rights in New York City, but I suspect they're going to deny these SEALs their right to confrontation in a military courtroom in Virginia.”

Again, this was the image of the unstoppable power of the Pentagon—utilizing the law, crushing the SEALs' rights, and indulging in unfair bullying in the most ruthless possible way. Against their own, no less. Puckett had spread his arms wide, a study in bewilderment and fair play. And this very neatly covered up that hickory-tough seam that runs through the heart of every trial lawyer.

FoxNews was well on top of the situation. Unlike the defense lawyers, they had somehow obtained the official handwritten statement of one of the SEALs, made only three hours after Al-Isawi was captured and was still being held at the SEAL base at Camp Baharia prior to his removal to Baghdad.

The SEAL had confirmed his actions: shower, breakfast, and a quick look at the detainee. “I gave him a glance over and then left,” he had written. “I did not notice anything wrong with the detainee, and he appeared in good health.”

FoxNews did not know at the time precisely how many similar accounts there would eventually be. And they switched their attack to the Army, connecting to Special Operations, US Central Command, where Lieutenant Colonel Holly Silkman confirmed that the three SEALs had been charged and courts-martial had been scheduled for January.

Central Command would not discuss the detainee, but that was not essential. FoxNews quickly found out precisely who he was and compelled a naval legal source to confirm that the military had been “tracking the guy for some time.”

They described the Fallujah “atrocity”—“ambush,” “burned bodies,” “dragged through the streets,” hanging of the bodies on the bridge, all by “Al-Isawi, the ringleader.”

They finished with a flourish, reminding the world of the military's nerve-wracked attitude to the words “detainee abuse.”

At which point the cat was well and truly out of the bag. Newsrooms, both print and broadcast, all over the country were now on the case. Generally speaking they could hardly wait to highlight the US Navy's “outrageous” conduct in going after their own heroes for possibly taking a swing at a detainee of such obvious evil as Al-Isawi.

And in the very week when all of this was happening—interviews, opinions, experts, solutions, media advice, counteradvice, and counter-counteradvice, the Pentagon continued to move ahead with its prosecution. On December 7 the three SEALs were formally arraigned in a military court in Norfolk.

By some mysterious force the public had found out about the arraignment and somehow gathered outside the gates to the Norfolk Base, hoping, along with the massed ranks of the media, to meet Matt when he emerged. And there Matt found his father, Marty, talking to Donna Zovko, the mother of one of the slain Blackwater contractors. She had driven from Cleveland, Ohio, to stand with the other supporters in the crowd, many of whom were carrying banners.

One of them, a Navy veteran from Virginia Beach, was Richard Berndt, who had been there since 6
A.M.
with a sign that read,
YOU FOUGHT FOR US—NOW WE FIGHT FOR YOU.

“I just feel I owe these guys everything I can give them,” said Richard. “They just need our support.”

Matt himself, immaculate in his uniform, looked astonished at the size of the crowd, some of whom wanted to know whether he and his two teammates had really whacked the terrorist.

And he replied without flinching: “No. The answer's no, point blank.” And then his father introduced him to Donna, and the SEAL told her: “I can't begin to imagine the pain you have endured for so long. I only hope that the capture of this guy brings a bit of closure.”

He stayed for a few minutes, but by then the media were growing restless, firing questions from all angles, and no SEAL wishes to hang around them for long. He just thanked everyone, climbed into a vehicle, and returned to base.