Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (39 page)

It was as though Judge Carlos recognized that the SEALs did have special license that sometimes empowered them to kill their enemy, no questions asked, because the mortal dangers they so often faced were too great to tolerate anything less.

And on this Friday afternoon in Norfolk in March 2009, he listened carefully to the outline of the case—how a sailor guarding the detainee in the hours after his capture claimed to have seen Matt McCabe punch a terrorist while Jon and Sam watched. And now the distinguished petty officer 1st class, Sam, stood accused of dereliction of duty, impeding an investigation, and making a false official statement.

The defense stated that four other SEALs, including the detachment commander and a Navy corpsman present on the day of the alleged assault disputed the guard's claims. And now, five months into the investigation, they learned that they too could face prosecution. As a result, they hired a lawyer and requested immunity before testifying in the three cases that had gone forward. And now, without giving any reason, Major General Charles T. Cleveland had denied those requests.

Judge Carlos responded by confirming he did not understand that decision. He said the testimony of the five witnesses would shed doubt on the guard's allegations. Not granting the immunity, he ruled, is either an attempt to gain tactical advantage over the defense or evidence that the government is overreaching.

Just as important, Judge Carlos ruled, is that the expected evidence would be exculpatory—that it would clear the defendants of guilt. Documents the men submitted about what happened between 5 a.m. and 8
A.M.
the day after Al-Isawi's capture, Judge Carlos said, make clear that the guard was occasionally left alone with the detainee.

The men's refusal to testify under their Fifth Amendment right does not mean they have anything to hide, stated the judge. And he cited Supreme Court rulings, noting that one of the Fifth Amendment's basic functions “is to protect innocent men ... who otherwise might be ensnared by ambiguous circumstances.”

Judge Carlos gave Cleveland until March 24 to provide immunity to the five witnesses. He added, “If this does not happen, this court-martial will be abated”—the legal term for indefinite postponement.

It was, of course, the second time Judge Carlos had made a significant ruling in favor of the defense. In January, after the government indicated it would not bring Al-Isawi to the United States to testify in Sam Gonzales's court-martial, the judge moved the trial to Baghdad on the grounds that the petty officer had the right of confrontation—to face his accuser.

And now, by the second week in March, SO1 Gonzales had his court-martial set for Baghdad at a similar time to that of Jon Keefe. Judge Carlos would preside over both of them. Matt McCabe's much more serious court-martial would take place afterward in Norfolk, Virginia, in May, in front of a different judge.

That Friday evening, March 12, the court papers were forwarded to the convening authority, General Cleveland at MacDill, Florida, as well as to various officials in the Pentagon. There were, subsequently, many tortuous conversations on that following Monday morning all over the US military's legal departments. But the decision was already made. Denying the requests for immunity was now pointless, because without this there would be no court-martial. Judge Carlos had ensured that.

And Monday was the day of the Ides of March, the fifteenth day, the date when the great Caesar was stabbed in the back twenty-three times right there in the Roman Senate by men he believed were on his side. Somewhat wryly, Matt said later he understood more or less how Julius felt.

And now the cases did appear to be turning in the SEALs' favor. And several things happened—all pretty good—in quick succession:

       
1. General Cleveland, with no options whatsoever, granted immunity for the five SEALs, freeing them to testify on their brothers' behalf.

       
2. At a fundraiser in Scottsdale, Arizona, Graham Ware's organization to support the SEALs raised almost $20,000 for the SEALs' defense fund.

       
3. In case anyone thought that Matt and Jon had “tricked” their first polygraph, they both took a new supercharged lie-detector
test—not military, but nonetheless the last word in polygraph technology, said to be the only modern test ever devised—virtually unbeatable.

The test was administered by the Virginia Polygraph Service (VPS), located, appropriately, in Fairfax County, home of the one man for whom a polygraph would have been strictly irrelevant, George Washington. The VPS designed a very specific test, made especially to show whether Matt whacked Al-Isawi.

One of the finest lie-detector men in the country, Jerry F. Shockley, a twenty-one-year veteran of the Alexandria Police Department, was in command. A man with more than forty separate qualifications in technique and advanced developments plus innumerable awards from the Virginia/Maryland areas, the former detective lieutenant concentrated on two no-nonsense questions:

       
1. Did you strike Ahmad Al-Isawi in the midsection?

       
2. Last September 1 did you strike Ahmad Al-Isawi in the midsection with your fist?

To both of these Matthew McCabe answered a blunt, firm “No.” And in conclusion Detective Lieutenant Shockley wrote,

The above questions were asked on three polygrams utilizing the Backster Zone Comparison Test technique. At the conclusion of the examination there were no significant physiological responses. It is my professional opinion that Mr. McCabe was being truthful when he answered those questions.

—Jerry F. Shockley

(March 17, 2010)

SO2 Keefe, who was equally as open and straightforward as Matt had been, had a slightly more torrid time at the hands of the lie-detector team. He had already taken and passed two nonofficial tests, but this was a modern power-polygraph.

They fitted electronic wires all over Jon and placed him in a chair with special butt pads and motion sensors, never telling him that one sharp clenching of the butt signified a bare-faced lie. They told him to sit still, restricting all movement. Thus installed, he moved only his eyeballs, scanning his interrogation room, looking up at the high one-way glass windows through which he knew a full squadron of agents and “detectives” were observing him.

One of his only two comforts was the presence of his two lawyers. Paul and Greg were right back there somewhere with their own window, watching for the slightest hint of unfair tactics. The other was the fact that he never told lies. Whichever way anyone looked at this scenario, it was one hell of an expensive way to establish something that obvious.

Afterward Jon's lawyers felt polygraph analysts were treating him with suspicion. In the NCIS test he was polygraphed three times for two hours, and each time was accused of trying to trick the machine.

“They told me I was trying to slow down my heart!” he remembers. “Accused me of being very calm! Told me I was trying to beat the system. I had no idea what they wanted from me. I just gave them the complete truth in answer to their questions. How could there possibly be any suggestion of a lie?”

In the end they sent Jonathan's results to the FBI in Washington. One opinion stated he was trying to control his breathing, and one paragraph claimed he was taking only four breaths a minute instead of the average human rate of thirteen. “It was a good thing I didn't slow down my heart at the same time,” he said. “I'd probably have dropped dead right there next to the polygraph.”

The final conclusion caused the military to infer they could not trust the results. Nonetheless, the officer gave the same conclusion as the one for Matt: “It is my professional opinion, that Mr. Keefe was being truthful when he answered those questions.”

The findings of the ex-Virginia policeman arrived in time for Graham Ware's rally for the SEALs in Scottsdale. Matt attended, and the lie-detector exonerations were announced eight times by elected Republican Congressman John Shadegg, the lawyer son of Arizona's
Steve Shadegg, who managed Barry Goldwater's 1952 and 1958 US Senate campaigns and organized the Draft Goldwater Movement in the 1964 presidential campaign.

Congressman Shadegg, former chairman of the Republican Study Committee, like so many other SEAL supporters, was a distinguished politician. And he spoke for all three of the accused men, asserting that the American public must know the findings of those lie-detector tests.

He also told the large gathering: “The prosecution of Matthew, Jon, and Sam sends the most terrible message to young men and women across our nation who may be thinking about serving their country, that we would second-guess them in the performance of their duties. I believe the charges should not have been brought, and they should be dismissed.

“This whole incident is an outrage!” shouted the Arizona congressman to the cheering crowd. “Rather than being charged, these young men should be
thanked.”

In the annals of these forthcoming, drastically expensive trials, March will go down as a pivotal month—the days when the military judge made plain his intolerance of certain prosecution tactics, when the revelations of the killer lie-detection system were announced, when the prosecution realized that there were important members of Team 10 who would flatly refute the allegations of the government's star witness not to mention those of the terrorist himself and, of course, that the laws of the United States would not allow them to be bullied and frightened out of making proper courtroom appearances.

March was the month when it was settled that Jon and Sam would be court-martialed separately in Baghdad in late April. Matt's trial would be a few weeks later in Norfolk, without Al-Isawi being present. His attorney, Neal Puckett, had agreed the terrorist need not be called.

But March heralded the emergence of a new and significant force in the trial of the senior petty officer Sam Gonzales of Blue Island, Chicago. Sam was a dedicated Special Forces warrior who harbored only one wish: to prove his innocence and then to continue climbing the ladder of command in the Teams. This new fighting force—lawyer Guy Reschenthaler—had, as the weeks went by, developed a determined devotion to Sam's cause.

Reschenthaler was only twenty-seven and had just returned from his six-month tour in Iraq, where he had spent most of his time in the middle of knock-down-drag-out courtroom battles in which the authorities were trying to jail or execute some of the most dangerous terrorists in the Middle East.

And now, stranded in the Navy's legal department, he was just facing up to a new career—defending sailors, Marines, and Coast Guardsmen on charges of DUIs, theft, and sexual assault. For the former lion of the Baghdad prosecutor's desk, this stacked up especially drearily against the desert dramas of beheadings, mass production of illegal explosive devices, mass murder, and acts of terrorism.

Perhaps there were those who sensed that Reschenthaler was becoming steadily more bored by his new life, despite many courtroom appearances. But someone, somewhere in the Navy Legal Service Office decided he had better get into a case that would spark his interest and talent.

When he was added to the defense team, it had already included one member of the JAG corps, Lieutenant Commander Andrew Carmichael, who was working with the other defense attorney, civilian lawyer Monica Lombardi, out of her private practice in Virginia Beach. The case file was presented to Reschenthaler, containing all the known details about the three SEALs accused of abusing a star detainee plus lying, dereliction of duty, and false statements.

“Yessir,” muttered the Pittsburgh-born Reschenthaler to himself, “I could get seriously into this.”

Thus, the heavily built, slightly bored graduate of the renowned Duquesne University School of Law became embroiled in one of the most high-profile courts-martial in recent memory—and at a huge cost.

“Resch,” as he was inevitably known, shed a penetrating light on Sam's character when he recalled the moment they first met. Armed with his case brief, the young lawyer called his new client over at the SEAL base and says he spoke to him with unrestrained awe. “He was a Navy SEAL, right? And around here that's about the closest anyone gets to being a superhero.”

Later that day the phone rang, and the front desk told him: “Lieutenant, I have SO1 Gonzales here to see you.”

Resch recalls giving his shirt an extra tuck, sharpening himself up, and walking down to the waiting room, where he pushed open the door and said, “Mr. Gonzales?”

At which point a short muscular man stood up and put down his newspaper. He was not in uniform and wore a long-sleeve shirt with a navy pullover, jeans, and old flip-flops. He grinned, offered his hand, and said, “Hi. Just call me Sam, Lieutenant.”

They walked back to the office, where the automatic lights had already gone out with politically correct efficiency.

“You don't need to turn 'em on, sir,” said Sam, in a low voice. “I'm a SEAL, and we're used to working in the dark. Just leave 'em off, Lieutenant. I like it better this way.”

The lawyer already knew the SEAL Teams operated permanently on first-name terms, and he asked quietly for the petty officer to relate his side of the prisoner-abuse story.