Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (37 page)

Was this a ruthless attempt at stacking the deck, or what?

If the court-martial convener, General Cleveland, stuck to his guns and refused to grant that immunity, Matt and his teammates could suffer a huge blow to their courtroom strategy. It was, after all, essential that men who had fought alongside them, relied on them, and could testify to their character be present at the trial, standing tall in the witness box and swearing to God that Matt, Jon, and Sam had done nothing wrong.

And now the government's lawyers appeared to have found another way to stop that from happening. Stacking the deck is one thing, but using obvious legal tricks to rob the defendants of even a semblance of a fair shout was quite another.

One of Sam's principal defense attorneys was Lieutenant Guy Reschenthaler, a skilled and thoughtful Norfolk trial lawyer. He was a man with substantial experience prosecuting terrorists, insurgents and other reprobates in Baghdad courtrooms.

“And never,” he stated several months later, “never in all of my career, have I known the government's prosecutors so utterly determined to win a case. They seemed prepared to do anything on this earth to nail down convictions against these three American heroes. And God knows why. I'll go to my grave wondering.”

For a lawyer still in his twenties, Reschenthaler had a formidable record. In 2009 he had volunteered for deployment to combat environment in Baghdad, where he was assigned to Task Force 134, the unit responsible for detainee operations and prosecutions in Iraq. He served as prosecution liaison in the Central Criminal Court of Iraq, responsible for all cases arising from Special Forces capture-and-theater-internment facility crimes.

His life there was spent among Iraqi attorneys and judges in the Red Zone, with the goal of criminally prosecuting terrorist and insurgents under Iraqi law. He handled nearly one hundred cases, securing convictions in all but two of them. He obtained the death penalty for fifteen detainees responsible for murder.

What Reschenthaler did not know about Iraqi prisoners and their breathtaking deviousness was, generally speaking, not worth knowing.
He'd seen it all before. But he had never seen anything like the US government's determination to convict Matt, Jon, and Sam.

The issue of immunity for the SEALs who would be willing to stand witness for the accused grew more pressing. All through the last days of January and early February a skilled military lawyer from Middle-town, Virginia, Charles W. Gittins, worked on statements from the five SEAL witnesses that would be presented to the US Navy trial judiciary, via Greg McCormack.

These “proffers of summarized truthful testimony” that the men would provide if they were granted immunity consisted of full statements, which, by definition, illuminated the necessary and even critical nature of their evidence.

But the government lawyers would not confirm that the immunity would be in any way forthcoming. As a result, Matt, Jon, and Sam felt utterly defeated; none of them could sleep through the night as the specter of ruin and disgrace crowded in upon them.

All three of them lost weight. They were worried about everything, including the rising legal bills, the concern that there would not be sufficient money to pay for their defense. And now they faced the truly chilling possibility that none of their teammates would stand in the courtroom and support them because the government had found a way to scare them out of it.

“I was almost sick with worry,” said Matt. “and I could not get that document out of my head—the one that said
THE UNITED STATES V. MATTHEW MCCABE, SO2—US NAVY.
It would almost have been better if I had knocked down this terrorist dude because that way I'd have had personal clarity. But I'd done nothing, absolutely nothing, and it sometimes seemed even the SEAL authorities had turned against me. It nearly broke my heart.”

And through all of this Paul Threatt and Greg McCormack were watching the terrible, wearing effect the case was having on Jon Keefe, who had also been shown a judicial document that stated, top left,
UNITED STATES V. JONATHAN KEEFE, SO2—US NAVY
.

“At first I could not believe it,” he says. “The words seemed to blur right in front of me. How could anyone have leveled that against me?
Was the whole country somehow against me? Not just the Navy—the entire United States?

“I was in Greg's office when I saw the document, and I had to leave the room because I thought I was going to be physically sick. I was gone for about twenty minutes. Greg probably thought I'd killed myself.”

It took that long for the mighty breacher from southern Virginia to compose himself—strange how this is so often the way with the bravest of men. But like Matt and Sam, Jon never could comprehend what he was supposed to have done wrong. He still can't.

And all anyone could do at present was to hope to hell the supremely erudite Charles W. Gittins could compose a powerful case for immunity to be granted to the big five waiting in the wings to speak up for their three buddies.

Gittins understood that if the government was going to deny immunity, they would probably announce it from out of the blue, suddenly, and with no real reason. Thus, he had to be ready with an unanswerable reply.

He prepared the proffers of testimony for Lieutenant Jimmy, SO1 Eric, and Lt. JG Jason. And then he worked on the submission for SO2 Carlton Milo Higbie IV, who was currently at the Naval Amphibious Base, assigned to one of the revered SEAL instructor positions. Carl, the massively built, six-foot SEAL who could bench press 450 pounds six times, was enormously well regarded by the Special Forces High Command.

The tactical air controller had previous experience on an Iraqi deployment and was regarded as a vital member of the platoon that had captured Ahmad Hashim Abd Al-Isawi.

His proffered statement would detail the times of duties at the base after they had returned, beginning from “wheels down” in the early hours of the morning, with their prisoner. He would attest that he first called the air officer to discuss some minor coordination problem during the mission and then prepared his e-mails for the mission debrief.

Carl and Jason rode the four-wheel ATV from the TOC to the kitchen, trying to find Paddy. The three of them often ate together, usually with
Eric as well, but the giant medic was not there, so they went down to the detainee facility in case he was still examining Al-Isawi.

When Carl arrived he did not see anyone present with the detainee, so he and Jason waited outside the door. Pretty soon Westinson showed up, and the two SEALs then left. Carl had spent just a few seconds at the holding facility, and although Paddy was not there, he had time to notice that the detainee was seated with his hands behind his back, wearing the mask. Carl stated that everything looked in order, except there was no one guarding the detainee.

The only SEAL he saw was Jason, and his statement confirmed that he, of course, saw no American strike “Amber”—as the SEALs called Objective Amber's target. He himself definitely did not strike Amber, and, subsequently, no one told Carl they had hit or struck Amber at any time.

It should be remembered here that this was the account of a SEAL instructor, one of the most trusted and respected members of the entire US Armed Forces. If Carlton Milo Higbie IV said something was so, then it was so—no ifs, ands, or buts. And right now the government was trying to dissuade him from even entering the courtroom on his friends' behalf.

Like everyone else, a few hours later Carl was awakened and told to report to the meeting at Danny's, where he learned of the allegations of prisoner abuse. The lieutenant outlined Al-Isawi's complaint to the twenty to twenty-five people present. Carl had no idea what the lieutenant was talking about and, anyway, did not believe anyone in that room would abuse the detainee. So he spoke up, stating, “Nobody hit the guy.” Others also spoke up, echoing Carl's opinion. When the meeting ended he went back to bed.

In his proffered statement Carl also described how they were then ordered to fill out individual statements, and because of his seniority, he remained with them and assisted several men complete their forms.

His statement to Charles W. Gittins concluded with the following passage:

As Team 10 was transitioning with Team 1, Higbie had occasion to eat with Command Master Chief Lampard, at the Task Force West Camp.
CMC Lampard was apparently unaware of who SO2 Higbie was, because Higbie was not wearing his uniform at the time. Chief Lampard told SO2 Higbie that he was very disappointed in the SEALs for abusing a prisoner, and even more disappointed that they had tried to cover it up, or words to that effect.

SO2 Higbie told Chief Lampard very candidly that no one did anything to the detainee, and no one was covering anything up. And that Higbie thought it was ridiculous that the CMC would say that without any knowledge of the facts. Chief Lampard became quiet, made sort of a grunt, and changed the subject.

END OF PROFFER. Respectfully submitted, and signed by Charles W. Gittins.

On January 29 trial counsel was provided with the proffers of testimony for Jimmy, Eric, and Jason. The submission argued that the testimony of each witness was relevant, necessary, and “in many regards, constitutes exculpatory evidence toward the defense.” The issue remained, however, whether the government would grant testimonial immunity.

On February 4 the defense submitted its request that the government grant each of the witnesses immunity. Two weeks went by, and on February 19, 2010, the government denied the request for testimonial immunity for all five witnesses.

Two weeks after that the two additional proffers for Carl and Paddy were also presented on the grounds that these were the unique observations of each witness during the significant time on the morning of September 2. All three had observed the detainee and interacted with SO2 Keefe, SO2 McCabe, SO1 Sam, and MA3 Westinson. They would also add their opinions regarding the military character for Jon Keefe's truthfulness and duty performance.

McCormack then took over this battle with the government, acting on behalf of Jon, who was slotted to appear first before a court-martial. He submitted that each witness had a unique role in the facts of the case. With lawyerly restraint, he did not elucidate his true opinion—that it was insanity not to grant these five SEALs the immunity they deserved. And he made out the case for each of them:

Lieutenant Jimmy: A crucial witness because he was the Platoon Commander, and the first person to observe blood on the detainee's clothing. He alone made the initial report. He conducted the initial investigation, as SO2 Keefe's superior officer, and he had the responsibility of advising SO2 Keefe of his rights, which he failed to do on repeated occasions.

Additionally, he will relate MA3 Westinson's multiple denials of any knowledge of, or role in, the detainee's injury, as well as his demeanor. Furthermore, Lieutenant Jimmy will testify to SO2 Keefe's character for truthfulness and honesty, as well as outstanding military character.

Lieutenant JG Jason: A crucial witness because he was Assistant Officer in charge, and as such observed the detainee at a time when no other witness observed him. LTJG Jason also has knowledge of a motive for MA3 Westinson to lie. Furthermore LTJG Jason will testify on SO2 Keefe's character, for truthfulness, honesty, and outstanding military bearing.

SO1 Eric: A crucial witness because he conducted the initial evaluation of the detainee's medical condition. SO1 Eric's testimony is also necessary to establish the chain of custody of the detainee. SO1 Eric also has knowledge of who was alone with the detainee, and would have had the opportunity to injure the detainee.

SO1 Eric will also testify that after the allegations of abuse surfaced, he examined the detainee, and found “no such indications.” Furthermore SO1 Eric will testify on SO2 Keefe's character for truthfulness, honesty, and outstanding military qualities.

SO2 Carl Higbie: Crucial, because he was a witness to Lt Jimmy's interrogation of the personnel connected with the detainee. SO2 Higbie's testimony is also necessary in corroborating the statements spoken by MA3 Westinson (words to the effect that he had a bad reputation and could not afford to get into trouble again) in response to that interrogation.

Furthermore SO2 Higbie was present when MA3 Westinson stated that if he were to be punished for detainee abuse, he would be unable to gain employment with the Highway Police when he separates from the Navy. SO2 Higbie was present when MA3 Westinson stated that he did not witness any aggressive act committed against the detainee.

HM1 Paddy: A crucial witness because he observed the detainee, when he went to the screening facility in Baharia, Iraq. He also conducted the required medical and visual inspection of the detainee, and did not notice any injuries. In addition, HM1 Paddy saw that the detainee was left unguarded by MA3 Westinson for a period of time, during which he could have easily intentionally injured himself.

All of this detailed reasoning was a part of a formal request from Greg McCormack that the military judge direct the appropriate convening authority—General Cleveland—to grant testimonial immunity to the five defense witnesses “And that in the event that testimonial immunity is not granted by the Government, the Military Judge abate the Special Court-Martial proceedings against SO2 Jonathan Keefe.”

McCormack summarized the facts of the case, in which he highlighted inconsistencies with grim accuracy, quoting Westinson as saying, “I don't know, I don't know.” And then again, “I don't know ... a lot of guys were in there.”