Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (46 page)

But Reschenthaler came back, more determined than ever, and argued that the jury would see the medals anyhow, as Sam Gonzales was permitted to wear his uniform and display all of his ribbons. Furthermore, he pressed, no one would know what act Sam had undertaken, only that he must have had a reputation as an excellent SEAL to earn that medal in the first place.

Judge Carlos had heard enough. He stepped in and snapped, “Enough! That's enough. Guy, just get me a list of his awards and I'll read them to the jury.”

Lieutenant Commander Grover for the prosecution was on his feet immediately: “But sir ...”

Judge Carlos would have none of it. “I would say,” he stated, carefully, “that a Bronze Star with a combat ‘V' is evidence of a good military character. It's coming in.”

He turned back to Reschenthaler and asked, “Can you get me the list?”

“Sir,” replied the attorney, frantically looking for copy paper, “we do not have any paper, and we cannot get set up with a printer.”

“You mean the government has not provided you with any of that?”

“No, your honor.”

“Well, what do you have? Anything?”

Reschenthaler dived into his jacket pocket, trying not to laugh. “I have these napkins from the DFAC [dining facility—cafeteria].

“Fine, fine,” said Judge Carlos, casting his eyes heavenward. “Write them on there, and give the list to the clerk, and we'll get the awards on the record.”

Reschenthaler scribbled away on the napkin and then handed it to the judge directly, with an appellate exhibit number. And so passed
into the official court-martial record the formal list of Petty Officer Sam's combat decorations, right there on the napkin.

“That was important,” said Judge Carlos. “Thank you, Guy.”

Jury selection took place immediately afterward, and six “good men and true” were sworn in. And once more, things broke well for the defense. Every juror had been serving in Iraq. Every one of them knew the creed of the
Manchester Manual
by heart and understood what it meant to every al-Qaeda prisoner, trained as they were right from recruitment to lie flagrantly if captured.

Reschenthaler and Carmichael had both considered that manual—what it meant and its clear and obvious dishonest creed—to be of such importance that in preparation for this trial they had recently taken the trouble to attend a conference focused exclusively on the little book.

The junior attorney from Pittsburgh had long considered his JAG mentor, Lieutenant Commander Carmichael, the finest litigator he ever met in the US Navy's JAG corps. And he listened carefully to one of Carmichael's lifelong certainties about courtroom know-how: “If you're going in there with even the slightest chance you may end up in an argument on any subject, no matter how apparently insignificant, make sure you know a whole lot more about it than the guy on the opposite table.”

Thus, Carmichael and Reschenthaler were experts on that manual. And when the time came to fight for its inclusion in the trial, they both knew they had to win. It took no time at all to convince the judge they were right; it rarely does when two attorneys understand precisely what they are talking about.

In this case the trick was to get the
Manchester Manual
entered into evidence via judicial notice so that no authentication would be necessary in court—no proving, for instance, that the defense hadn't written the book themselves.

And when, finally, the Lombardi team left the grim legal building in the desert, with its blast-wall defenses against the possibility of an al-Qaeda bomb, they were able to look back at several months of quite-notable pretrial victories. Six times, on either side of the world, they
had pleaded with Judge Carlos for a decision in favor of Sam Gonzales. And each time they had come away with precisely what they wanted.

There were the two Norfolk motions: (1) the request for immunity from prosecution for the five witnesses who would stand up in court for the accused SEALs and (2) the rights of the three accused SEALs to confront their accuser in open court.

Both granted.

Then there was in Iraq (3) the
Manchester Manual
and its judicial inclusion and (4) the argument over the definition of good military character and Sam's medals on the napkin.

Both finding for the defense.

And there was (5) Lieutenant Kadlec's failed plea on behalf of the government that the defense team should not harass his star witness.

Denied in favor of the defense.

And finally (6) the undeniably skilled work of Reschenthaler when he demonstrated, to the judge's obvious consternation, the prosecution's unreasonable behavior in not providing the defense with even basic office supplies.

The defense had not lost one yet. And, to misquote Commodore John Paul Jones, they had not even begun to fight. Because the real enemy was not yet over the horizon.

11

TWO VERDICTS IN THE IRAQI COURTROOM

Ten Navy SEALs will swear by all that's holy that Matthew McCabe did not strike the prisoner, not one of the SEALs struck the prisoner, no one lied, no one threatened, and no one covered up any aspect of the evidence.

S
even months and twenty-two days had passed since those fateful hours in the dark, small hours of September 2, 2009, when the men of Echo Platoon had frog-marched the handcuffed al-Qaeda murderer Al-Isawi out of his desert stronghold.

Seven months and twenty-two days since Petty Officer Sam Gonzales had stood alone, beneath the sinister watchtowers of the terrorist garrison and quietly called in the three SH-60 Seahawks to airlift the Team and their prisoner out of this menacing jihadist outpost.

And now he was still on the outer reaches of that very same nine hundred thousand-square mile Arabian Desert, and the sand on his boots was identical, light and blowy. But this was not quite such a wasteland. Before him was an American military courthouse, and he must cross a wide main road to get to it.

He was not armed, yet to him the building was about a hundred times more dangerous than Al-Isawi's quarters had ever been. Because inside that building there were people trying to destroy him personally.
Three highly trained military attorneys were prosecuting him, Sam, on behalf of the government of the United States of America.

Sam Gonzales of Chicago, Illinois, had given up trying to work out precisely why. Or what he had done to deserve it. The problem was that this particular Navy SEAL was not like the others. For him there was no life beyond the Teams, only blackness.

The SEALs were his lifelong ambition, his reason for living, his pride, his happiness, and his love. If it all suddenly ended, he had no idea what would become of him. In truth, he did not really care. He kept going because he believed that Reschenthaler, Lombardi, and Carmichael would somehow get him out of it. And to that end, he was already hoping for a new deployment when he returned to SEAL Team 10.

For the others, that was a possibility. But there were many, many people involved in this case who were about ready to quit the US Navy and head for the hills. Lawyers and combat warriors alike were mortified by what was happening to the three accused men, and some of them were, albeit subconsciously, considering civilian life.

Sam was different, though. For him there was nothing else. To resign from the SEALs was beyond his comprehension. He lived—and always would—for the discipline, for the sound of a new magazine snapping into the breach of his rifle, the planning, the stealth, the defeat of his country's enemies.

And the sight of the Stars and Stripes right there on his battle patch sent a shiver of patriotism through him every time he pulled on his body armor. He wore that patch next to his treasured Trident—his symbolic badge of honor, which he slept with, under his pillow, every night of his life. Sam Gonzales was not like the others.

He understood as well as any of them what a guilty verdict would mean, if these strangers somehow decided he had been “derelict” in his duty and had indeed lied to his superiors to cover up some crime that he knew perfectly well had not been committed.

It was the disgrace that mattered to him most. And in the end he was at their mercy. Now in the burning heat of this Baghdad spring day, he walked across the street, flanked by Lombardi and Reschenthaler, like a nineteenth-century French nobleman headed for the guillotine.

A fusillade of machine gunfire or even a flying bomb was all part of Sam's job description. And he could deal with those. But the treacherous ambiguity of the courtroom, the insinuation and inference, would probably prove beyond him, and he gripped Lombardi's arm as they walked through the corridors of the US military's Baghdad legal building.

The case began shortly before 2
P.M.,
and as promised, a contingent from SEAL Team 8 was present. Whatever had happened on their night mission, it had not stopped them showing up in support of Sam Gonzales, and they sat shoulder to shoulder in the gallery.

Judge Tierney Carlos, presiding over the large courtroom from a somewhat majestic raised dais, sat at the head of a wooden staircase.

The prosecutors' table was placed on the left of the courtroom looking at the judge, closest to the jury. And there, Lieutenant Commander Jason Grover would be seated next to Lieutenant Nicholas Kadlec, with the lady Reschenthaler referred to as the “Ice Maiden” on the right.

Lombardi's table for the defense was set on the right-hand side of the courtroom. And as soon as they arrived, she placed Sam at the far end. Lombardi herself sat between Reschenthaler and Carmichael. None of it was by accident. This was courtroom strategy, and it ensured that when members of the jury looked across at the uniformed Navy SEAL, they would see him face-on.

They would also quickly grasp that Sam was seated right next to a stand-up, decorated lieutenant commander, a graduate of the US Naval Academy, who quite plainly believed in him. And also in his innocence. Everything counts in these highly combative courtroom clashes.

And already the defense counselors had to make a knife-edge decision. They would not call Sam Gonzales to the stand. SEALs are not famous for their guile except in battle. They are trained to fight hard, with maximum cunning and ruthless execution. When they speak they speak plainly—no innuendo, no confusion, and no economies with the truth.

That's what a SEAL is: uncompromising in his views, unbreakable in his personal code, and, unhappily in this case, inclined to think that
everyone else is like him—with the exception of the enemy, none of whom can be trusted one yard.

Because of this, a skilled and devious prosecutor would trip up Sam Gonzales, trapping him into one of these all-too-familiar courtroom techniques:

       
You mean you don't know?

       
Well, not really
...

       
Then it could be true?

       
I suppose it could
...

       
But you just said you thought it could not be?

       
Well
...

       
So you weren't really telling me the truth, were you, Petty Officer Gonzales?

       
Well, I believed I was
...

       
Do you mean you're uncertain of the difference between the truth and lies?

That's what is known as a brutal cross-examination. It has nothing to do with right and wrong; it has to do with the courtroom skill of the attorney and the inexperience of the witness. It's harsh, often unfair, and Lombardi was not going to have it inflicted on Sam. Like his great buddy, Carlton Milo Higbie IV, but for different reasons, Sam would spend this trial on the bench.

Lombardi arranged the court papers in front of her, and some she pushed over toward Carmichael. Sam averted his eyes when he saw the top one, headed
”THE UNITED STATES
v.” and then his own name and rank. This was the one with which he could never come to terms. Because throughout his working life he had been prepared to die, any time, any day, for the United States of America.

And now it seemed he was up against his own side. It was the only part of this whole trouble that more or less reduced him to rubble. And his lower lip tightened as he caught sight of it again:
THE UNITED STATES OF AMERICA
v.
SAM GONZALES.
He guessed it was not much different for the other two, Matt and Jon. They too were perfectly willing
to die for their country. Otherwise none of them would have been SEALs in the first place. For all three of them, those words on the official charge documents were a never-ending dagger through the heart.