Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (35 page)

So far as the defense lawyers were concerned, this was all very well. But their clients had also provided them with accurate accounts of the “incident” from the very beginning, right from the opening meeting at Danny's. And it was stark in the minds of all three accused SEALs that on that morning Westinson had never admitted to seeing anything of the kind and never once even suggested he had seen Matt punch the terrorist.

And both Matt and Jonathan remembered something else: at first Westinson admitted he had been absent from his guard post twice, but later stated it had been three times. In the SEALs' opinion this was because he considered, momentarily, it was more favorable for him to
have been missing for as long as possible, during which time someone else may have thumped Al-Isawi in the stomach. The longer the absence, the wider the range of Westinson's alibi.

And now, set before them, the lawyers could read Westinson's rewrite, rethink, rehash statement, made in the camp at Ar-Ramadi when he was not in front of a group of hard, disciplined SEALs who were listening to every word. There, while he worked on that September 15 rewrite, he had free literary rein.

And boy! Had that account ever changed from those stammering accounts he gave in front of everyone in Danny's recreation room. Under intense interrogation from NCIS Special Agent John Stamp, Westinson's re-interview was based on a specific set of questions:

       
1. How long were you gone from the screening facility before you observed McCabe, Keefe and Sam?

            
I left once to go get medical paperwork, once to put the rifle away. I was away from the detention facility approximately five to 10 minutes before returning, to find Sam, McCabe and Keefe inside with the detainee
.

       
2. What did you first see?

            
I saw Sam, McCabe and Keefe standing three feet away from the detainee. The detainee was facing them, standing up against the wall. He did not appear to be in any distress
.

       
3. What did you first hear?

            
I did not hear anything out of the ordinary when I returned to the detainee facility
.

       
4. Is there a sign in the log book?

            
No. No video either
.

       
5. Describe the exact positioning of McCabe, Gonzales, and Keefe when you entered.

            
Al-Isawi was standing up, facing McCabe, Gonzales and Keefe, with his back to the wall. He did not seem distressed. Gonzales, McCabe and Keefe were three feet away from him
.

       
6. What did they say to you when you entered?

            
I don't remember anything being said
.

       
7. What did you say to them?

            
Nothing
.

       
8. Did it appear like something was going on? What did you first think when you entered?

            
Yes, because I saw Sam looking out of the door, as if making sure no one saw, that would report what they were doing. When I walked in I didn't think anything was going to go on, as if me being there would deter them from doing anything to the detainee
.

       
9. Why would they be in there?

            
They had no reason to be in there. With past detainees the Team guys would poke their heads in to look at a detainee but I'd never seen them abuse detainees before
.

       
10. What was Al-Isawi doing?

            
He was just standing there
.

       
11. Was he sitting or standing?

            
Standing
.

       
12. Did Gonzales, McCabe or Keefe have their hands on Al-Isawi in any way? Helping him stand?

            
No, I didn't see anyone touch him until McCabe hit him
.

       
13. Did you ask Gonzales, McCabe, or Keefe what they were doing?

            
No
.

       
14. Where were Gonzales, McCabe and Keefe when McCabe struck Al-Isawi? Were they holding his arms?

            
They were in the same position I pointed out earlier. McCabe just reached out and hit him
.

       
15. How long were you standing next to McCabe before he struck Al-Isawi? Did McCabe say anything before he struck Al-Isawi? Did Gonzales and Keefe say anything either right before or after the punch?

            
I was standing next to McCabe less than a minute before he hit Al-Isawi. McCabe didn't say anything before he hit him. After the punch, Gonzales and Keefe laughed, and Keefe yelled at the detainee, like a roar. As they were walking out, Gonzales said, “That's enough. He'll get more later.”

       
16. Was there any other conversation that took place in the screening facility, other than what you have already told me about?

            
No
.

       
17. Has anyone attempted to influence your statement? Has McCabe, Gonzales or Keefe spoken to you since you observed the assault? If so, what did they say?

            
Sam wanted to write my sworn statement with me. That's what was the breaking point, what led me to report it. He also told me, “That guy fucked himself up, you're being very unprofessional right now,” after he saw me hanging around the TOC. And after the meeting with the Lieutenant the day this happened, Sam said to me, “Get in there with those guys and get your story straight.” Sam was referring to the entire SEAL Team, and to the medic, Paddy
.

       
18. What did you think when you saw blood on Al-Isawi's lip? Did you tell anyone about it?

            
I was scared but I didn't think it was from McCabe's punch. I don't think that injury could have happened from a blow like that. I thought that before I got back from putting my rifle away one of those three did something to Al-Isawi to cause the injury to his lip
.

       
19. Did you ever speak to Al-Isawi? Did Al-Isawi ever say anything to you?

            
I yelled at him to wake up once, when he was trying to fall asleep
.

       
20. When the Lieutenant and Sam returned to clean up Al-Isawi, what did they say about the blood? Did they speak to Al-Isawi? Did Al-Isawi say anything to them?

            
When the Lieutenant mentioned the wound to Sam, he said, “Do you think this could have happened on extract?” meaning during Al-Isawi's capture. Sam was acting like he was feigning ignorance of the injury
.

       
21. Is there anything else I should ask you about?

            
I think he was abused by other SEALs but didn't see any other abuse
.

       
22. Did you see anyone else walking around or toward the detention facility while you were leaving to get your medical paper work or put your rifle away?

            
When I left the detention facility the first time to get the medical clipboard, I saw SO2 Higbie riding on a quad runner in the direction of the screening facility. I did not see him go to the screening facility though. When I was coming back with the clipboard, I noticed Higbie leaving
the facility. He said to me, “Nothing happened back there. Relax,” as he was leaving. At that time I looked in on the detainee, and he seemed to be in no distress. Also, Paddy was there, and I don't think he would have let anything happen to the detainee. I didn't see anyone coming or going from the detention facility. when I went to put my rifle away. When I was coming back I did not see anyone coming or going from the detainee facility. When I got back to the detainee facility is when I saw Sam, McCabe and Keefe in the room with the detainee. Paddy was right outside the door to the detention facility when I went inside. He would have heard if the detainee was being abused while I was gone. I only left the detainee twice
.

This was the Westinson rewrite. And when the lawyers read it the battle lines were truly drawn. For it contradicted every inch of the other statements that the men of Team 10 had written out under oath. Not one of them had seen anyone harm the detainee, and the medic had declared him unmarked except for, later, the tiny abrasion on his lower lip.

And worse yet for Westinson, none of them believed that any member of a SEAL Team would do such a thing. And no one but no one thought it possible that any SEAL would deliberately lie about such an incident.

Any and all them were prepared to testify to the excellent characters of the three accused. In short, no one thought there was a snowball's chance in hell that Matt McCabe had struck the prisoner Al-Isawi or that Sam and Jon had stood by and then lied about it.

This meant that either MA3 Brian Westinson was lying or the SEALs were lying, as their statements were diametrically opposed. And the jury would have to decide whom they believed.

By this time, with two of the courts-martial already scheduled for January, and with so much more work to do, a two-month postponement was permitted. There was a growing sense that the mighty clash of wills over a minor punch that may or may not have landed on the detainee was shaping up as one of the great legal confrontations of the age and was likely to end up as one of the most expensive.

And already, almost fourteen weeks before anyone was going into court either in Iraq or the United States, there was an enormous point of law that was elbowing its way into the very forefront of the cases: the government's refusal to allow Al-Isawi to be brought to America to testify. However, General Cleveland had approved the defense lawyers' rights to take deposition from the Iraqi prisoner.

But attorneys Puckett, McCormack, and Monica Lombardi, who had recently joined the defense team, were all of the opinion that this violated an enshrined right in a US court of law that the defendant has the right to confront his accuser. And right here the general was wading in deep waters.

In the first week of the New Year Puckett wrote a firm letter under the heading, “Re: Request of deposition of Mr. Ahmad Hashim Abd Al-Isawi.”

It read,

Dear General Cleveland,

I received your letter of January 7th, 2010, approving the taking of deposition of Mr. Ahmad Hashim Abd Al-Isawi. I am disappointed that you have approved this request without requiring trial counsel to demonstrate why Mr. Al-Isawi cannot be produced. As the court-martial convening authority, you are the natural arbiter of disputes between the prosecution and defense.

The issue in dispute here is one of serious consequences. It is the right of an accused to confront his accuser. That right is enshrined in our Constitution under the Sixth Amendment. Yet, without any demonstration by the Government of an attempt to produce Mr. Al-Isawi, you have permitted the prosecutors to usurp a fundamental constitutional protection of SO2 McCabe. Ironically, it is a right for which SO2 McCabe was willing and ready to fight, and make the ultimate sacrifice.

If Mr. Al-Isawi is in the custody of Iraq authorities, you could have invited him to attend and coordinated his travel documents through the Department of State. We recognize that such coordination may be
difficult, but difficulties do not justify denial of a constitutional right to an accused.

Instead of coordinating his travel, you have decided to depose Mr. Al-Isawi in Iraq. A deposition instead of a live testimony means that court-martial members will not have an opportunity to assess the witness's demeanor, watch his mannerisms, and, most importantly, ask him questions. By denying the court-martial members an opportunity to fully participate in the court-martial process, you are also denying SO2 McCabe a fair opportunity to defend himself and confront his accuser.

In light of your decision to deny our client his full constitutional rights to confront his accuser, and in consideration of SO2 McCabe's right to a speedy trial, we hereby withdraw our request to have Mr. Al-Isawi produced, and agree to enter into a stipulation of his expected testimony.

Puckett signed the letter and had it dispatched to MacDill Air Force Base. This probably delighted General Cleveland and whosoever his political guardians might have been because, at last, they were rid of the threat that some legal curveball might be delivered that would compel them to produce Al-Isawi in the United States, with all the rights and privileges of a regular US citizen, including the ability to plead the Fifth.