Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (48 page)

Nonetheless, the prosecution called MA3 Westinson to the stand and carefully walked him through his part in the events of September 2, 2009. Both naval officers, Grover and Kadlec, were probably not loving the prospect of Lombardi's forthcoming cross-examination.

Lombardi then rose from her chair and began her interrogation of Brian Westinson. Her position in this part of the court-martial was calculated. She would appear softer, less inclined to intimidate the witness than either Carmichael or Reschenthaler, and she began in a steady, deliberate, and not unfriendly way.

Lombardi talked to Brian about his background, his hopes, his ambitions, which included his aim to become a California Highway Patrol officer. But slowly she proceeded to the timeline that she and Reschenthaler had drawn up—the interlocking of Westinson's various versions and the times and places he had specified. Hardly any of them seemed to dovetail properly.

And Lombardi kept “looping”—walking him along that line, establishing his version, and then flashing back to another version, a conflicting account. In short order Westinson was all over the place, and
Lombardi, with a touch of characteristic flamboyance, was marching around the courtroom, pacing, demonstrating her anguish at these contradictions.

One of Lombardi's favorite comments is, “C'mon, I'm a typical New York Italian—we speak with our hands!”

And right now her hands were working overtime—sometimes spread wide apart in mock bewilderment, sometimes pointing to the document in her hands, sometime gesticulating to emphasize a decisive point. And like all experienced trial attorneys, she was swift to pounce upon the dramatic. When Westinson began to elaborate on the viciousness of the beating Al-Isawi had taken at the hands of the SEALs, especially Matthew McCabe, she was at her best, muttering, just loud enough: “Oh my God, how awful.”

By the time Lombardi was all done with Brian Westinson, this case had swerved away from the government, and it would never really swing their way again.

Grover then called the terrorist Al-Isawi to the stand, and immediately the three defense lawyers thought he had this one all wrong. Because of Reschenthaler's experience in the interview room, they all knew the interpreter was hopeless—an elderly Egyptian who was a bit deaf and spoke in a remote Egyptian dialect.

Grover, an excellent litigator but with a courtroom arrogance about him, quickly began using big words and long-winded sentences to impress the jury. Defense counsel thought it was a disaster because the translator could not understand much of it and was thus unable to communicate with Al-Isawi.

The jihadist in the witness box, dressed in a bright yellow jumpsuit with his hands bound in front of him, was plainly lost at sea, particularly as he somehow believed Reschenthaler was not only his best friend but also his lawyer. Twice he looked over to Reschenthaler, seeking guidance. Both times the young Pennsylvania attorney averted his gaze and lowered his head so the jury would not catch on he had buttered up the mass murderer now standing in the box.

Al-Isawi's obvious confusion was a triumph for the defense. The terrorist had been telling lies on a world-class scale for more than seven months, adhering to the doctrine of the
Manchester Manual
, and
Reschenthaler was relentless in his thoughts. He believed the government had refused him his excellent translator out of pure spite, and now they were paying for it with this Egyptian. Reschenthaler thought it entirely likely that Judge Carlos might in the very near future use one of his favorite words: “Dopey.”

Finally the prosecution was finished with Al-Isawi. And Reschenthaler stepped up for the cross-examination. He was careful to call him “Hashim,” his surname, at all times—no “Mr.,” as he was careful to show this killer no respect whatsoever.

And then in stark contrast to Grover, Reschenthaler began to speak in short, deliberate sentences—no long words, nothing to confuse the translator: “Let's go back to the beginning, shall we? And get out the entire story.”

And from there he moved to the long story of the “horrible” beating that Al-Isawi claimed he had suffered. Reschenthaler coaxed out of him the whole graphic description—the barrage of kicking while he was on the ground, the steel-capped boots, and the blows to the head and stomach. The jury sat stunned by this tale of cruelty.

Reschenthaler had been sympathetic, trying not to look at Lombardi, who virtually winced at every detail of the pounding Al-Isawi claimed he had received. Reschenthaler guessed she probably looked like Lady Macbeth right then, but he kept his eyes on the terrorist.

And then he pulled out his trump card. He produced the photographs taken in the couple of days following the “horrific beatings.” The clear shots that showed Al-Isawi had hardly a mark on him except for the cold sore.

“May it please the court, I would like to publish these photos to the jury.”

He personally handed them to the president and, for the record, stated, “I am now handing the jury the photographs which depict that ‘horrific' beating.”

“OBJECTION!” Grover was on his feet. “Counsel is commenting on the evidence.”

Reschenthaler was waiting for that one. And he answered quickly and loudly: “Your honor, excuse me, I am showing the jurors the photos.”

The judge ignored the objection and allowed the defense to proceed. And by the time anyone could make further comment, the jury was looking at the pictures. If anyone had been badly beaten up, it was surely not Al-Isawi, who was unmarked. Lombardi saw at least three of the jurors roll their eyes in disbelief.

It was one of those courtroom moments. The government's case had taken a body blow. The terrorist, who everyone hated anyway, had been proven to be a liar of the highest ranking. His entire evidence must have been a total fabrication. His allegations against the Americans were palpably, obviously false.

And the old Jefferson High wrestling star came rumbling in for the kill, pressing home the point about the “dishonest” SEALs.

“And I believe the Americans stole money too?” he said, his voice redolent with sarcasm.

“Yes, yes. Six thousand dollars.”

“Was this your money?”

“No, my mother's. She was saving it for the Haj. She worked hard, selling jewelry for years, to send me on the pilgrimage.”

“Are you aware that the money found at your home was all numbered, marked consecutively?”

The jury picked up on it. But the interpreter was confused, and Al-Isawi did not get it: it was counterfeit money, used to fund acts of terror.

Reschenthaler asked the question again. “Are you aware ...”

“No...”

Reschenthaler walked over and showed the jurors pictures of the money. He knew he was pushing the rules of evidence, leading the jury with the close-ups. But he desperately wanted Grover to object again on behalf of the government while he was laying into the terrorist.

Reschenthaler looked young, very young, and the plan was to entice the big, bad government to object, show them beating up on a young American attorney while protecting a terrorist. Because if they did, Lombardi's team scored major points. And if they didn't, Reschenthaler was about to run roughshod over the prosecution in this courtroom.

As it happened, Grover and his team did not take the bait, so Reschenthaler was free to question Al-Isawi at will, nailing down the pure farce of the beating and proving beyond a doubt the colossal lie about the money.

Reschenthaler had always planned to conclude the cross-examination with a significant flourish, and now he asked the question that might, ultimately, seal Al-Isawi's fate and would almost certainly save Sam Gonzales.

“Isn't it true,” he asked, “that you, Hashim, are the mastermind behind the Blackwater Bridge Massacre?”

Like Carmichael, he'd renamed the Fallujah bridge over the Euphrates in the interest of expediency, but almost everyone in the courtroom knew precisely what he meant. He said it quickly in order that the translator could not possibly follow. Reschenthaler was still determined that the government would pay for hiring a different translator.

To hell with you, government
, he thought.
You give me this guy instead of my linguist, well ... we'll just see how that works out
.

At this point the translator threw his hands in the air and said in broken English: “Sorry—I ... I no, I don't hear good.”

Grover himself had been the man who had very cheerfully denied the request for the top translator, and now Reschenthaler stared hard at him before replying, “That's okay. I'll repeat it slowly.”

And he turned to the jury, looked at them squarely, and asked, “Isn't it true ... [paused for translation] ... that you were ... [pause] ... the mastermind ... [pause] ... behind the ... [pause] ... Blackwater Bridge Massacre?”

By now the jury were hanging onto Reschenthaler's every word, and he walked back, theatrically, to his chair before Al-Isawi could respond. The translator finished, and the well of the courtroom was empty. Everyone was seated, and Al-Isawi said, “No. No.”

“Thank you,” said Reschenthaler politely. “No more questions.” After a forty-five-minute cross-examination by the youngest lawyer in the room, the terrorist now stood before the court forever branded as a thunderous liar.

The government's case against Petty Officer Sam Gonzales was, by any standards, in desperate trouble.

And the SEAL knew it. He only just suppressed a smile as he leaned forward and said to Reschenthaler, “Nice job, sir,” which is just about the highest praise SEALs hand out to anyone.

And nothing much improved for the prosecution as SEAL after SEAL came into the witness box and swore under oath that none of them knew anything about Matthew McCabe striking anyone. Each one of them attested to the exemplary character of Sam Gonzales, and most expressed admiration for the quality of his military conduct and competence.

The longest testimony next to that of Westinson was from Lieutenant Jimmy, who provided detailed background to the mission and a well-constructed timeline for all events that morning and beyond.

Also in the witness box was Lieutenant Jason, who had walked in the left flank that night and then joined the heavily armed rear guard while Matt and the guys stormed the Al-Qaeda stronghold.

Jason, who had stood in the shadows with his fire Team, with his machine gun ready, would not utter one word against Sam Gonzales and had nothing but praise for the senior petty officer who had walked across the desert carrying the critical comms in Objective Amber.

As for the allegation that Matthew had attacked the terrorist and that Sam had lied about it to his superiors, well, Lieutenant Jason found it difficult to dignify that with a straight answer. But his smile and contemptuous shake of the head said a thousand valuable words to the jury.

He might just have well have asked the prosecutors: “Are you guys actually nuts?”

Carmichael next called HM1 Paddy, knowing that this was a vital witness because he was not a SEAL but a corpsman, and he too disputed the theory that the SEALs had somehow gotten together and lied.

He stood on the stand and stated flatly that the SEALs had already gone to bed by the time he examined Al-Isawi, so any injury must have happened after they had vanished for sleep.

The SEALs last saw the prisoner at 0500, and Paddy himself had examined him at 0600, when he was most certainly not injured. There-
fore, it must have happened after that, and the only person with Al-Isawi after 0600 was Westinson. So, as far as this senior medic could see, that minor injury on the lip was either caused by Weston or had been self-inflicted.

There was even more evidence in support of the self-inflicted theory, as seen when Carmichael called the base's oral surgeon, a US army captain, to the stand. The doctor said flatly the wound on Al-Isawi's lip looked like a canker sore, an aphthous ulcer, and the terrorist had bitten the top off it and then sucked at it to make it bleed.

The prosecution came back with a good cross-examination, asking whether it could have come from any other way. And the doctor replied that it could have come from a “fall from a chair, where you hit your lip on the way down.”

But Carmichael immediately recrossed and asked whether the wound could have come from a severe blunt-force trauma, like a punch or boot to the face. The doctor said definitely not a boot and very unlikely a punch, because this would have caused much more severe damage, with bruising around the mouth. This was not in evidence.

Carmichael's final question was decisive: “Doctor, in your professional expert opinion, was that mysterious gash on the terrorist's lip self-inflicted?”

“Yes.”

But the battle to prove whether Westinson was reliable swayed back and forth. The prosecution, somewhat surprisingly, called MC1 Lynn Friant. Reschenthaler thinks Grover's strategy of calling up a defense witness was designed to keep the other side surprised. And, indeed, Friant testified for the prosecution that Westinson was concerned about the incident from the very beginning. However, under cross-examination by Reschenthaler, she was able to elaborate, saying that Weston told her: “My parents won't love me anymore.” There were several other slightly bizarre comments emanating from the master-at-arms, who was claiming his future was already ruined.