Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (34 page)

It was signed by Dan Burton, with copies to Hon. Barack Obama, Hon. Robert Gates, Admiral Mike Mullen. And, of course, it never even tackled the most likely possibility—that none of the three SEALs were guilty of anything.

In essence, the trials of the three SEALs were still all military: the court-martial, the major general, the SEAL base, the Navy JAGS, the Special Forces, the commanders, the master chiefs, and the Armed Forces' term for a prisoner: “detainee.”

But politics was shouldering its way into the fight with every turn in the road. Representative Burton had rightly marched into the debate some of the most influential men from the Capitol. And the names Gates and, occasionally, Obama were part of the conversation.

Leading conservative writers were in there, swinging hard at military leaders, and conservative publications were making their stand against what they recognized as injustice. Even liberal US newspapers were taking a swerve en masse to the right, demanding fairness for the SEAL heroes.

And Puckett, Matt's civilian lawyer, albeit a former US Marine lieutenant colonel, suddenly ratcheted everything upward by writing a thoughtful but tough article in the most revered conservative publication in the country,
Reflections
magazine, the voice of the new conservative movement of the twenty-first century.

This beautifully written monthly stated its case with passion. And it quoted William F. Buckley Jr., founder and editor of the
National Review
, claiming the same mission statement: “To stand athwart history, yelling stop.”

And onto this shining platform of right-leaning intellect stepped Puckett, welcomed by one of the most demanding editorial boards in
the world, one that was avidly pro-military and absolutely not in favor of court-martialing courageous and patriotic Navy SEALs.

Indeed, in this rapidly developing uniformed farce, the high commanders fell right into the magazine's catch-all of “sporadic and weak resistance preferring power to principle,” perhaps even floundering under the “ideological juggernaut of liberalism,” which, in the end, is wrong about just about everything.

Like most of the country,
Reflections
saw the military condemnation of the three SEALs as nothing short of disgraceful. And they reminded the Washington lawyer of the words of their patron saint, the father of Western conservatism, Edmund Burke, who once memorably declared, “All that's necessary for the forces of evil to win the world, is for good men to do nothing.”

The Edmund Burke Institute, for which
Reflections
is the flagship publication, was firm in its general resolve: “We refuse to do nothing. We will fight for what is right, true and good. This is the rock upon which we take our stand.”

Thus, their team endorsed Puckett to help them make that stand, explaining to an important readership precisely what was at stake. When he filed his thoughtful prose, they headlined it:

NAVY SEALS DENIED JUSTICE

And after he briefly described the circumstances that led to the accusation and the dangers that Matt, Jon, and Sam now faced, he characterized the military's response:

The commanding general decided to take stern, formal disciplinary action, which would have ended the career of all three of the SEALs ...

Rather than thinking through all of the other alternatives available, the senior legal advisor recommended the general refer these cases to prosecution by court-martial. This action ensured that the public would become aware of the case.

The significance of this arched piece of writing was that Puckett was both a Marine officer and a trial lawyer. Who could possibly be
more qualified than him to make this judgment? And therein lies the rub of this puzzling legal conundrum: so many wise and experienced people were thinking in perfect harmony and urging General Cleveland to rethink and cancel all charges against the SEALs.

But somehow there was an obdurate and irrational determination at work here. It was a strange obsession to nail them at all costs, with no obvious benefit to anyone, certainly not to the reputation and public standing of the US Armed Forces.

Right now, in the brand-new year of a brand-new decade, in a relatively new century, half the country was waving angry fists directly at the Pentagon. It was a very long time since that much public rudeness had been hurled at senior officers and officials, a long time since the military had conducted any operation with such a chilling lack of common sense.

And because the public was not having it, Jon Keefe's lawyer, Greg McCormack, decided that one sensible move might be to have his client take a polygraph test, which, though not always admissible as evidence in court, would nonetheless provide substantial validity to Jon's known character and truthfulness.

Greg's staff hired a well-known licensed Virginia polygraph examiner, Andrew M. Casey, to conduct the tests on Jonathan, who readily agreed to undergo them. Examiner Casey's report says,

The main issue under consideration was whether or not KEEFE was truthful when he stated he did not lie to NCIS Special Agent Stamp concerning the alleged abuse of detainee Al-Isawi. During the pre-test interview, the facts of the case were discussed, and all questions were reviewed by him.

RESULTS: Throughout each polygraph chart there were no apparent physiological indications of deception when KEEFE answered “No” to the following questions:

Did you lie when you told Special Agent Stamp that you didn't see anyone abuse or mistreat Al-Isawi?

Did you see anyone abuse or mistreat Al-Isawi?

Was Al-Isawi abused in your presence?

OPINION: Based on the above, it is my opinion that NO DECEPTION WAS INDICATED.

McCormack immediately fired off a request to General Cleveland at Special Operations Command Center, MacDill Air Force Base. It asked that the Naval Criminal Investigative Service at the NCIS Norfolk Office administer a new, more expansive and thorough polygraph examination to SO2 Keefe.

The general wrote back that he hereby granted that request, but in addition to the three questions indicated, the polygrapher would ask Jonathan questions concerning his knowledge of the source of Mr. Al-Isawi's injuries and about his efforts to influence the investigation.

This was a fascinating clash of viewpoints. McCormack understood with 100 percent certainty that Examiner Casey was equally sure that Jon was telling the absolute truth. In the lawyer's opinion there was not a cat-in-hell's chance that any polygrapher on the planet could possibly trap his client into revealing he had told a lie.

General Cleveland may or may not have grasped this. Because if the military wheeled in one of the country's best polygraphers and put Jon Keefe through the ringer, employing every known technique in the book to trap him—and then come up blank—that would surely do the government's case no good whatsoever.

The military and the intelligence services, especially the Navy, have a tempestuous and sometimes embarrassing history with this curious little electronic device, which, while the subject undergoes some kind of fourth-degree interrogation, records physiological activity, blood pressure, heart rate, pulse rate, respiration, and skin conductivity.

There had been many great triumphs and a few perfectly cringe-making failures. The US government had its own grandiose name for the lie detector test: a psychophysiological detection of deception (PDD) examination. And prosecutors love to have it tucked in their brief file so long as it proves the defendant has told a few whoppers.

In a way they could not afford to polygraph SO2 Keefe, but they could also not afford not to. The memory of the horrendous trial of former US Navy Chief Warrant Officer John Anthony Walker, a
communications specialist who spied for the Soviet Union from 1968 to 1985, is the reason for this dichotomy.

During his time conducting this profitable enterprise, Walker helped the Soviets decipher more than one million encrypted naval messages. He organized a spy operation involving several Navy personnel, an operation the
New York Times
reported in 1987 as “the most damaging Soviet spy ring in history.”

After Walker's arrest Caspar Weinberger, President Reagan's secretary of defense, stated that Walker gave the Soviets information that allowed them access to weapons, sensor data, naval tactics, and terrorist threats as well as surface, submarine, and airborne training, readiness, and tactics. The Soviets essentially knew where every US submarine was patrolling at all times. In the event of war Walker's treachery would have resulted in enormous loss of American lives.

And a simple lie detector test could have stopped the whole thing. Because Walker, despite certain people's suspicions, never took a polygraph test. His Soviet masters had instructed him never to accept any form of promotion that required one. He actually refused promotion because of this.

Walker, the bearded former crew member in the nuclear-powered fleet ballistic missile boat USS
Andrew Jackson
, was badly short of cash, so he simply walked into the Soviet Embassy in Washington one afternoon and sold a top-secret document for several thousand dollars, and this in turn led to a permanent salary from Moscow of up to $1,000 a week.

He was judged responsible for the North Korean capture of the spy ship USS
Pueblo
in 1968. And as a critical supervisor in the comms center for the US fleet's Atlantic submarine force, he betrayed the entire US Sound Surveillance System (SOSUS) underwater surveillance system to the Soviets, who immediately altered their submarine propellers to reduce cavitation and, thus, detection.

Naval experts estimated that Walker and his team provided enough code-data information to sway the balance of power between Russia and the United States during the Cold War. When he was finally arrested—exposed by his angry ex-wife for nonpayment of alimony—
he observed, rather jauntily, that “K-Mart has better security than the Navy.”

And the US Navy never quite recovered from that, regularly reaching for the lie detector at the slightest suspicion of espionage inside their warships or dockyards. Walker, after plea-bargaining, got life in jail, but his right-hand man received a sentence of 365 years in a Californian state penitentiary.

The polygraph played some role, either positive or negative in most of the big US espionage cases of the past fifty years. The grotesque and drunken CIA double-agent Aldrich Ames admitted being “terrified” of the lie detector while he was spying for the Soviet Union. But the KGB kept him straight, told him to relax, and Ames beat the polygraph twice in 1986 and 1991. The Wisconsin-born traitor did not, however, beat the US court system, and he was jailed for life in 1994, having fatally betrayed many, many US agents.

Another lethal CIA spy for the Soviet Union, Harold James Nicholson, suddenly failed an agency polygraph test in 1994, and this led to his immediate arrest and jailing for espionage against the United States.

One of America's worst traitors was the Chicago-born Robert Hanssen, who spent twenty-two years working for the FBI but simultaneously spying for the Soviet Union and, later, Russia. They caught him in the end, and Hanssen pleaded guilty to thirteen counts of espionage.

He was sentenced to life imprisonment, without parole, in a high-security Colorado penitentiary. He told his captors that no one
ever
asked him to take a polygraph test. If they had, he confirmed, it might have made him think twice about spying, even though he earned an estimated $1.4 million from Moscow Station.

Thus, the US military has a love-hate relationship with that demonic electronic apparatus. They dared not ignore it for fear of the same torrent of abuse that hit the CIA and the FBI over Walker and Hanssen, both of whom were never required to take one. And then there was Ames, who beat it, and Nicholson, who was trapped by it.

When Greg McCormack made his request on behalf of Jonathan Keefe, General Cleveland had to risk it. But the lawyer rightly understood
there was no danger whatsoever to his client, and he welcomed the opportunity despite the extra questions the government was preparing in order to try to trap the big SEAL from Virginia.

Meanwhile almost all of the other lawyers involved in the SEALs' defense had spent much of the Christmas and New Year vacations poring over the sworn statements to which they now had access. And the one that truly preoccupied them was the long NCIS interview with Brian Westinson, made on September 15 but kept under wraps for three months until the government delivered it to their legal offices on December 15.

This statement was made during a re-interview. Westinson had made an earlier report on September 5 in which he stated, in writing for the first time, that he had witnessed Matt strike the detainee on the left side of his abdomen with a closed right fist, and this caused him to fall to the floor onto his right side, with his legs pulled up in the fetal position.

Westinson wrote that he was shocked and scared at seeing this happen, and the three SEALs, Matt, Jon, and Sam, noticed his surprise.

Westinson had recorded that Jonathan said to him: “Don't feel bad for this guy. He killed a lot of Americans and two team guys.” Westinson had added that he personally picked up Al-Isawi from the floor and set him in a chair. “He was still bound with his hands behind his back,” the MA3 wrote. “And he was wearing a mask covering his eyes and nose. I observed blood coming from his lip.”