Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (36 page)

It cannot be overstated how seriously US law enshrines this right of the accused. In 2004 the Supreme Court made a decision in the
CRAW-FORD
v.
WASHINGTON
case that rewrote the standard for determining when the admission of hearsay statements in criminal cases is permitted under the
CONFRONTATION CLAUSE
of the Sixth Amendment.

This means, broadly, that no lawyer can walk into a US courtroom with a prepared, written, sworn statement from a witness. Because it can be deemed hearsay. The person who made that statement has to be present, right there in the witness box, to utter his words before the judge and jury, prosecution and defense.

Those words are deemed sacred in the search for truth. And no matter how fastidiously any statement has been prepared and sworn and witnessed, it simply will not do. Because nonappearance means the words may be interpreted as hearsay.

This 2004 decision was a momentous change to the law, one of the most defense-friendly decisions in many, many years. It underscored the right to cross-examine witnesses and potentially disallowed hearsay evidence, which courts had permitted for the past twenty-five years.

The ruling astounded attorneys all over the country.

It was such a legal milestone that it brought a brand-new word into the lawyer's vernacular. From that moment on, March 8, 2004, attorneys, when faced with sworn statements from potential no-shows, would thunder,
“CRAWFORD!”

And even General Cleveland had to pay attention to that. Though standing on the government's decision to keep Al-Isawi in Iraq, he had absolutely no choice about letting the defense lawyers loose on him to conduct a cross-examination. And making matters infinitely worse was the fact that as this legal quagmire was proceeding, there was a newly released statement from Al-Isawi.

All of the defense lawyers, JAGs, civilians, and paralegals were studying this new statement. The recorded first exchange between the prisoner and his military interrogators was the first sight the lawyers had at the direct accusations being leveled against their clients, the SEALs.

In the hours immediately after the incident two special agents from the Camp Cropper Criminal Investigation Division (CID) Office, Military Police Battalion, Baghdad, had sat Al-Isawi down and proceeded to have their linguist/interpreter fill out seven pages of Arabic writing, as dictated by Al-Isawi.

The typed-up account, translated into English, was now presented to the defense lawyers. It read,

September 1st at 2.30
AM
the American and Iraqi forces broke into my house and arrested me, and then took me to their camp. They interrogated me at one room, and then took me to a different room where I was assaulted and abused by the American forces, by hitting and kicking on sensitive areas on my belly, and shoulder. They were hitting me by the hands and foot.

Questions and Answers: [spelling errors not corrected]

       
Q
: Do you know who hit you?

       
A:
I don't know because I was blindfolded
.

       
Q
: Do you know what you were hit with?

       
A:
I was hit by hands and foot
.

       
Q
: Were you hand cuffed?

       
A:
Yes
.

       
Q
: Do you know you were hit by a man or woman?

       
A:
A man
.

       
Q
: How do you know?

       
A:
I can recognize his voice
.

       
Q
: Do you have any injuries from that man who hit you?

       
A:
Yes. I was hit on my face and shoulder
.

       
Q
: Do you have any other injuries from that man?

       
A:
Yes. I was kicked so hard on my bellay
.

       
Q
: Were you hit on your bellay by fist or foot?

       
A:
By foot
.

       
Q
: How do you know you were hit by foot?

       
A:
Because it was very strong hitting
.

       
Q
: Were you provoked by that man?

       
A:
No.

       
Q
: Did you understand what that man was saying to you?

       
A:
The only word I understood was the f-word, and he said a lot more words that I cannot understand
.

       
Q
: Did you do anything as reaction while that man Was hitting you?

       
A:
I did not do anything because I was hand cuffed, but after I was fell to the ground, that blind-fold moved a little bit so I saw the man's foot in front of me
.

       
Q:
When was the last time you slept before you got hit?

       
A:
About an hour before the hitting
.

       
Q
: Were you scared after they broke into your house?

       
A:
Yes
.

       
Q
: Did you get any medical or Madison treatment after hitting?

       
A:
I was only examined by the doctor and he told me that he will bring some Madison but he did not
.

       
Q:
Can you describe how strong that pain in your stomach was?

       
A:
It was very strong pain especially for the first three days, and then it's gone

       
with first week
.

       
Q
: Special Agent was ordered to withhold the day and time and location of completion of this statement from you. Do you have any objections?

       
A:
No.

There would be a great deal more to come because, as Puckett's letter to the general had so strongly intimated, the defense attorneys for all three accused Navy SEALs would be traveling to Iraq for a possibly revealing chat with the Butcher of Fallujah, who now claimed “prisoner abuse.”

9

US GOVERNMENT DENIES IMMUNITY

When I saw the document, which stated, top left, UNITED STATES V. JONATHAN KEEFE, S02, US NAVY, I had to leave the room, because I thought I was going to be physically sick. I was gone for about twenty minutes. My lawyer probably thought I'd killed myself.

T
here are a lot of decks in the US Navy—quarter decks, gun decks, foredecks, flight decks. But in January 2010 there was a brand-new one entering the seamen's lexicon: the stacked deck. Because by now the government was preparing to erect yet another roadblock right in front of the accused Navy SEALs.

The government's stacked deck involved the necessary statements of the five SEALs who were ready to stand in a courtroom, any courtroom, and swear to the innocence of Matthew McCabe, Jonathan Keefe, and Sam Gonzales. They were the platoon lieutenant, Jimmy; Petty Officers 1st Class Rob and Eric; Lieutenant Junior Grade Jason; and SO2 Carlton Higbie.

All five of them had walked across that dark and lethal desert on the fateful night of September 1, walked alongside Matt, Jon, and Sam, not knowing whether they were headed into a quiet, sleeping al-Qaeda
camp or into the jaws of hell. Eric had walked alone, out in front of Matt, wide to the right of Jon, point man for column two.

Carlton had walked close to Sam, who had a hair-trigger grip on the comms. Jimmy was right there with them, armed to the teeth and in command. And now the US government was ranged against them all, seemingly determined to ruin Matt, Jon, and Sam. The government was preparing to deny immunity from prosecution to the other five if they dared to stand in court and speak up for their blood brothers in combat.

This was a truly shameful episode. The five SEALs not being charged—yet—had, through their lawyers, requested immunity during any court appearance, as none of them wanted an aggressive prosecutor, steeped in the tricks and wiles of the courtroom, to trip them up.

All five of them were smart as hell, but they knew little of the law; however, they knew only too well the treatment so far meted out to Matt, Jon, and Sam in the long weeks while the military was attempting to wring confessions out of them. Most of them knew, blow by blow, how government legal officials had spent hours threatening and promising, doing anything they could think of to get an admission, almost forcing the SEALs to sign documents that would confirm that Matt had whacked the murderer and that the other two had lied, cheated, and schemed to get him out of it.

The request for immunity from prosecution was normally routine, so no one expected the requests to be denied. But this case was different, way different. The government appeared to believe there were no holds barred.

And soon, they would learn, the government was prepared to deny their routine request for immunity. The lawyer representing the five SEALs, however, would make it plain: the Team 10 witnesses were not going anywhere near a courtroom until they were given guarantees that they too would not end up in the same boat as the three accused.

As the lines were drawn over the immunity issue, there was a weird and angry silence from the government. And all three defense teams
were left to reflect on the inordinate set of circumstances that had dominated this case from the very first moment Ahmad Hashim Abd Al-Isawi had opened his mildly damaged mouth with his poisonous accusations against US Navy SEALs.

And from then on the SEALs had been up against it. There was the alacrity with which they had effectively been determined guilty, removed from their base, stripped of their armor and weapons, separated from their teammates, made to live with the Iraqis, do menial work, act as servants to other SEALs, and be disbelieved at every turn in their road.

There were the countless times when Jon Keefe had been asked to turn against his friend Matt McCabe and admit he had watched him strike the prisoner. There were the failed attempts to get them all to sign documents admitting to their “crimes.” And there were the absurdly long delays in providing the defense with routine discovery documents essential for any trial.

And what about the sudden refusal to bring Al-Isawi to the United States so that Matt McCabe should have his constitutional right to face his accuser and confront the “evidence” against him? How about the government's obvious ploy to ensure that defense counsel could not cross-examine this known liar in an American courtroom witness box?

And how about the public uproar? The heavyweight legal opinions being flung at Major General Cleveland? And what about the demand from the US Congress that this entire prosecution be abandoned? And the obvious wish of the American people to have this case thrown out, regardless of whether Matt had walloped the terrorist. There were hundreds of thousands of cyberspace messages evoking nothing but fury and suggesting that no one in the entire country would have given a short damn if Matt had shot the terrorist and been done with it.

Thousands of ordinary people were contributing thousands of dollars to finance the three SEALs' defense. But all to no avail.

The government seemed determined to find them guilty. And now there was this latest hurdle—nonimmunity for the five Team 10 SEALs who wished to testify on their brothers' behalf.