Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (31 page)

Congressman Mike Coffman from Colorado's 6th district, a former infantry officer in the US Marines, placed his signature right next to Congressman Wittman's. Another Virginia Republican, Frank Wolf, as a former Army lawyer and practicing attorney, was also among the strong supporters of Duncan Hunter's petition.

The Texas congressman, Kevin Brady, was another powerful supporter and did not think the SEALs should be dragged into a courtroom after their exemplary behavior on the mission. In fact, Congressman Brady was possibly not enthusiastic about anyone going into a courtroom, as his own father, a South Dakota lawyer, was shot dead in one when Kevin was only twelve years old.

The Republican Tom Rooney, grandson of Art Rooney, founder of the Pittsburgh Steelers, was another big supporter of Congressman Hunter's petition. A former Army JAG, Rooney taught constitutional and criminal law as an assistant professor at West Point. He served in the famed US Cavalry Division and was a special assistant US attorney at Fort Hood in Texas.

Congressman Rooney knew military law from A to Z. And he believed that Matt, Jon, and Sam were being prosecuted by their own side based on dubious evidence.

The petition was sent by congressional courier directly to the Pentagon. But subsequent events suggest it was transferred from the office of the defense secretary to the convener of the courts-martial, Major General Charles Cleveland, who commanded Special Operations Central Command from MacDill Air Force Base in Florida.

This surprised no one because, as hot potatoes go, this one would deep-fry the palms of your hands. The upshot of all this was that Congressman Hunter was informed that a letter should be sent directly to the Major General because he had been given free rein to handle the courts-martial any way he saw fit.

And so, six days after the first letter, the congressmen went back to work, and this time there were forty-one signatures—eight more influential voices. The new letter read,

Dear General Cleveland,

We are writing to express out strong disagreement with the decision of your officers to pursue first a non-judicial punishment, and now a full court-martial against three Navy SEALs—Matthew McCabe, Jonathan Keefe and Sam Gonzales—on charges of assault against Ahmad Hashim Abd Al-Isawi—at one point one of the most dangerous terrorists in Iraq.

In March 2004, Fallujah, Iraq was a hub or insurgent activity. Four American civilians working as contractors were ambushed and killed; their bodies were mutilated and burned, then dragged through the streets and hung from a bridge over the Euphrates River—one of the most horrific outrages perpetrated on Americans in the last decade. The man widely identified as the mastermind of that attack, as well as other attacks on United States and coalition troops in Iraq, is Ahmad Hashim Abd Al-Isawi.

For over five years Al-Isawi evaded capture until Matthew McCabe, Jonathan Keefe and Sam Gonzales finally brought him to justice. Instead of being hailed as heroes, these brave Americans are being vilified for allegedly assaulting Al-Isawi once he was in custody. First, press reports raise significant doubts about whether Al-Isawi was actually in SEAL custody when his alleged minor injuries occurred.

Second, al-Qaeda's own handbook instructs their operatives to allege detainee abuse if detained by American forces. In fact, al-Qaeda operatives are trained to self-inflict injuries for the sole purpose of accusing US forces of abuse. We've seen many cases of this since the conflicts in Iraq and Afghanistan began.

General, surely you agree that we are in a war that we must win. Our military personnel are putting their lives on the line every day trying to track down terrorists who want to indiscriminately kill Americans. Our troops and your SEALs need to be bold and decisive in combat; not looking over their shoulder, fearing legal jeopardy for every action or gesture.

In this case in particular there is more than enough doubt as to whether these SEALs committed any wrongdoing at all. In our opinion, prosecutorial discretion should have been exercised. Failing that, we
respectfully and strongly urge you to exercise your leadership authority, stop the impending court martial, and exonerate these men.

We await your prompt response.

CC: Hon. Barack Obama, Hon. Robert Gates, Adml. Mike Mullen.

It was signed by Dan Burton, the influential Republican representative from Indiana's 5th district, plus forty-one other congressmen. And although none of them thought the president was likely to step in and put a halt to the rumbling juggernaut of legal procedure, it was also obvious that Robert Gates had essentially stepped aside. The four-star Admiral Mike Mullen was, however, a real hope.

As chairman of the joint chiefs and just beginning his second term, he was the highest-ranking officer in the US Armed Services. A former commanding officer of the guided missile cruiser USS
Yorktown
, Admiral Mullen was a US Navy man through and through. There was nothing he did not understand about the service that wears dark blue.

He had served for forty-three years after graduating from the Naval Academy, Annapolis, rising to command the US Second Fleet in the North Atlantic and subsequently holding the office of chief of naval operations. Now aged sixty-three, Admiral Mullen was every sailor's champion.

In the opinion of Congressman Hunter there was a genuine chance he might declare from his exalted position that, in the interests of the Navy's public reputation, and its duty to provide proper anonymity to its front-line operators, these courts-martial should not proceed.

The letter was dispatched to the great offices of state and to the Florida offices of Major General Cleveland, who replied swiftly, as indeed anyone would, after receiving a letter from the US Congress. His response read,

Dear Representative Burton,

Thank you for your letter expressing your and your colleagues concern regarding the pending Courts-martial of Petty Officers Gonzales, McCabe and Keefe. I understand your interest in these cases and can
assure you that I am committed to protecting the rights of the Sailors who have been accused.

Regrettably it appears that your perception of the incident is based on incomplete and factually inaccurate press coverage. Despite what has been reported, these allegations are not founded solely on the word of the detainee, but rather, were initially raised by other US service members.

Additionally, the alleged injuries did not occur during actions on the objective, as is also being widely reported in the media. A medical examination conducted at the time the detainee was turned over to US forces determined that his alleged injuries were inflicted several hours after the operation had ended, and while in the custody and care of the US at Camp Schweidler's [
sic
] detainee holding facility.

While the assault and resulting injury to the detainee were relatively minor, the more disconcerting allegations are those related to the Sailor's attempts to cover up the incident, particularly in what appears to be an effort to influence the testimony of a witness. All of these allegations were fully investigated by the Naval Criminal Investigative Service (NCIS).

As you have likely read, I chose to deal with this incident administratively via non-judicial punishment pursuant to Article 15 of the UCMJ. However, Petty Officers Gonzales, McCabe and Keefe elected to exercise their UCMJ rights to refuse such a hearing. I have attached previously released, redacted copies of the charge sheets in the hope that they will clarify the allegations surrounding this incident. These charges were drawn from information disclosed during the course of the investigation. The release of any further information at this time would be inappropriate as it might prejudice the outcome of the trial.

I take my military justice authority and responsibility for maintaining good order and discipline very seriously, as I have in six commands previously. Discipline and integrity are primary factors that make our US Special Operators such an effective fighting force. The abuse of a detainee, no matter how minor, creates strategic repercussions that harm our nation's security and ultimately costs the lives of US citizens.

I must ensure that the service members under my command abide by the laws passed by Congress and follow the lawful orders of their superior officers. When there are reasonable grounds to believe that
an offense has been committed, and that a specific individual in my command has committed that offense, it is my duty to take appropriate action to not only ensure justice is done, but also to maintain good order and discipline.

It is these factors that led me to refer these charges to Special Courts-martial. I assure you that the rights of these Sailors are being protected and they will have all of the facts of the case presented and reviewed fully by an impartial panel.

Sincerely,

Charles T. Cleveland MG, US Army Commanding

It was, of course, an enormous disappointment, not least because neither the president, the defense secretary, nor the head of the Armed Services seemed inclined to lift a finger to support the three accused SEALs.

Also it would have been reassuring if the Major General had at least known how to spell Camp Schwedler, named for another decorated Navy SEAL, Petty Officer Clark Schwedler, who died with the utmost heroism in combat in Iraq and was, somewhat coinidentally, the son of a Michigan trial court judge.

Major General Cleveland's response was very weak, packed as it was with trite aphorisms and military cliché, very much a letter from a senior officer to a someone of a lower rank and studded with references to his own command seniority.

It also made a few seriously shaky assumptions—repeated references to Al-Isawi's “injuries” when even the prosecution was offering only the slightly cut lower lip, which he probably did himself.

The general also referred to the allegations against the SEALs being “initially raised by other US service members”—plural. If there were anyone else making the same allegations as Brian Westinson, he or she was not yet known to either the defense or the prosecution.

The general also did not see fit to mention the several SEAL Team 10 members standing by to flatly refute Westinson's statement. And as for General Cleveland's assertion that “the more disconcerting allegation” was the “Sailors' attempts to cover up the incident” and their
“efforts to influence the testimony of a witness,” that was not much short of a wild, inaccurate guess.

Indeed, in Westinson's sworn statement under oath in Ramadi made on September 4 in the presence of a naval lieutenant commander, he asserted that “the three SEALs” had not threatened him and that he thought they were “professional and exemplary sailors”—not precisely the impression Major General Cleveland was handing out to Congressman Dan Burton.

Neither was it altogether fair that he claimed that the SEALs merely exercised their rights when they refused a nonjudicial hearing. The unmentioned truth was that a nonjudicial hearing would have required from them an admission of guilt, which they could not provide because they were entirely innocent.

It could not possibly be deemed unreasonable to suggest that the man who convened the courts-martial, Major General Charles T. Cleveland, quoted what he saw as the “facts” to Congressman Burton in a subtle but somewhat opportunistic manner.

And certainly no one in the highest command of the US military wanted anything to do with a devastating document, produced on December 10, the day the congressional letter was sent to the general. It was written under the letterhead,

DEPARTMENT OF THE NAVY

SPECIAL COURT MARTIAL

NAVY AND MARINE CORPS TRIAL JUDICIARY

CENTRAL JUDICIAL CIRCUIT

To the left was the title,
UNITED STATES V. MATTHEW V. MCCABE
(the sight of which, incidentally, almost broke his heart, and he never really got over it). But this document was helpful. It was the WITNESS PRODUCTION REQUEST, prepared by the Navy Lieutenant JAG, who right now was detailing the SEAL's defense.

One by one it listed the men who would stand witness for Matt, although it began with an assessment of what might be expected from Ahmad Hashim Abd Al-Isawi, the alleged victim.

Section (a) read,

His allegation of abuse is the basis for the charges against SO2 McCabe. He told the Navy Special Agent that he was kicked in the stomach and hit in the shoulder and head. His statements serve as the backbone of the Government's case. He is simply the most relevant and necessary live witness in this case.

The rest were listed in the document along with an assessment of what each one would testify in support of Matt: his platoon lieutenant; SEAL Team 10's lieutenant; SO1 Eric, the rocket scientist from Georgia Tech who had walked across the pitch-black desert in front of Matt; SO2 Carl Higbie, the air comms chief the night of the raid; Matt's lieutenant from his months in Germany; Matt's troop commander, a very senior SEAL; SEAL Team 10's troop senior chief; two SEALs, one a lieutenant who had trained with Matt, and another platoon chief, both of whom had known Matt for years; and the SEALs' combat camera operator. The list also included three witnesses who would testify concerning Westinson's military character and disposition toward Navy SEALs: MCI Lynn Friant, the SEALs' combat camera operator; a petty officer who served with Brian; and his immediate supervisor, lead master-of-arms.