Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (40 page)

But at this point he did decide not to tell the SEAL this was his first true criminal case in the United States, unless he counted a pre-Iraq trial in which the even younger Resch defended a sailor who managed to get drunk and passed out at the wheel in a Burger King drive-through. On reflection he also decided not to mention that he lost the case by offering some outlandish excuse that the guy's psoriasis medication was to blame!

“No problem, Lieutenant.” replied Sam. “Because it's really simple. Look, we rolled this guy up, took good care to make sure nothing happened to him in the helo on the way home. Then we put him in the box—that's the big shipping container we have rigged to temporarily hold a captured target.

“Next morning the guy spits blood and says the Americans did it. The general wanted us to take a slap on the wrist with a General's Mast nonjudicial punishment. But that sounds like a ‘guilty' to us. And we said, ‘No, the hell with that.' And now we're all here.”

It was an instant alert for Lieutenant Resch: this sudden switch from the Navy to the Army, the slightly jarring sound of the word “general” as opposed to lieutenant commander or captain. And right there Resch tuned in to an issue: the term Admiral's Mast, meaning an appearance
on a disciplinary matter before a commanding admiral, had its entire roots and ethos in the Navy.

Over the years the term had been used to apply to the Army, a General's Mast. But to the legal mind there was a difference. In the Navy an Admiral's Mast is deadly serious, going back to the days of sail, when some critical mistake or careless action might have endangered the ship.

In the Army, however, it's somehow considered in a lighter mode, signifying a slap on the wrist and finished. But these SEALs were not in the Army. They were in the Navy, and the very term Admiral's Mast signified the admission of a serious crime. They could not face that. Right here there were crossed wires, and Lieutenant Resch was the first lawyer to tune in, and he was sitting right across from the senior accused SEAL.

In Reschenthaler's opinion this switch from naval discipline, this handing over of the prosecutors' torch to the Army was a very significant occurrence. The two services are related but different. And there is ageless folklore involved in both. The Navy marched to the beat of a sometimes-stricter drum.

And in this case the dogged independence of the SEALs served only to cause the Army commanders to dig in to their entrenched positions ever deeper. Sometimes the SEALs' wills seemed to irritate the Army authorities unnecessarily. Perhaps the Army should never stand in charge of judgments that involve Navy personnel.

There were a thousand dichotomies in the air, and Reschenthaler, like any halfway-decent defense lawyer, needed to clarify in his own mind the guilt of the accused SEALs. And the question always rears its head: Did they do this? Or is it just circumstances ganging up on them?

It took him a very short time to decide that it was impossible for Sam Gonzales to have stood by and then deliberately lie about the issue. SEALs of his experience simply do not behave like that. Sam was an ambitious man. He had received a Bronze Star for valor in combat. Would he put his entire career on the line and risk standing in a court-martial telling a pack of lies?

Couldn't happen, was Reschenthaler's opinion. And the lawyer's father, a Pittsburgh doctor, supported him in that. His father interpreted the slightest sign of doubt crossing his son's mind as strictly un-American.

“You gotta be kidding me, Guy,” he would say when his son started thinking about the case from the government's point of view. “That Iraqi was a murderer, a terrorist and a threat to society, and even if it was true our guys punched him, he deserved it. You better get your head screwed on straight.”

The fact that Reschenthaler's analysis came from careful legal examination of the facts and a natural tendency toward playing the devil's advocate cut no ice with Reschenthaler Senior. And Guy still finds it interesting that his father's views entirely echoed those of the vast majority of the American public.

Meanwhile a close camaraderie developed between Resch and Sam, who came to the legal office sometimes just to talk. The Navy had all three SEALs in some kind of a holding pattern. Every morning they checked into Team 10, and every morning they were dismissed and sent home. Sam found time to lay an entire hardwood floor at his home.

Exasperated and a little scared of the great unknown that lay ahead, he settled into a routine of brutally hard workouts and home improvements—a considerable waste of the million bucks it cost the US government to develop him into one of the world's elite fighting troops.

And the more time the young lawyer spent with him, the more certain he was that Sam could not possibly have seen anyone punch the terrorist or conspired to cover it up. Sam had an aura of naval professionalism about him, and this cried out to Resch that the government had this one all wrong.

Willingly, Reschenthaler took on more and more of the workload for the team, particularly regarding the coming motion being prepared to support the
CONFRONTATION CLAUSE.
Hour after hour he combed through the discovery documents, telephoned potential witnesses, and researched for the legal team's motions that might end this nightmare for the tough, rather ingenuous SEAL leader.

And the situation pleased everyone. Monica Lombardi was very busy building her private practice, and Drew Carmichael was loaded down with command leadership responsibilities. The fact that young Reschenthaler was prepared to work eighteen-hour days was a blessing.

And this gave him time to make the
CONFRONTATION CLAUSE
motion his pride and joy. As the junior defense attorney, he needed to tread fast, firmly, and carefully, skills long ago perfected by the hefty former Thomas Jefferson High School wrestler, whose Duquesne Law School was situated just a few hundred yards from the Pittsburgh Steeler's end zone along the wide Monongahela River.

Although built like an M1 Abrams tank, at five feet seven inches, Reschenthaler was never destined to join the Rooney family's black-and-gold warriors up there at the confluence with the Allegheny River, combat was still his instinct. And the courtroom suited him perfectly, especially the cut-and-thrust of criminal litigation.

And he picked up the
CONFRONTATION CLAUSE
motion and researched it as though he were on his way to the Supreme Court rather than a court-martial. He had agonized over every word and nuance. In Reschenthaler's mind this was the key to the case. His youthful optimism told him that victory was not only essential; victory might also blow this case right out of the water. If his team could win Sam's right to face his accuser but the government would not bring Al-Isawi to the United States, it had to be all over, right? No court-martial.

Well, nearly. Before a courtroom packed with journalists and spectators, Lombardi, the most experienced of the defense team, was armed with a motion largely written by Reschenthaler but also packed with skilled and experienced opinions written by Lombardi herself as well as Drew Carmichael.

To Reschenthaler it felt a bit like his own work, but he knew that it was a team effort and that Sam's two more senior lawyers had made a major and mature contribution. All the necessary research, pertinent precedents, and solid argument were there for Lombardi. And everyone remembers the moment. With Sam sitting tense and white-faced between her and Reschenthaler, Lombardi stepped up and began: “May it please the court ...”

What followed was a masterly presentation of the newish law to which the Supreme Court had delivered such a crystal-clear precedent, articulating not so much a bedrock principle of the Anglo-American judicial system but a cry from the very heart of the gods of law—that every defendant has the right to face his accuser.

Lombardi did not care whether Al-Isawi was in Baghdad or Timbuktu, and she did not care how difficult it would be for the US authorities to get him to the Norfolk Naval Base. She coldly pointed out that according to Antonin Scalia, associate justice of the Supreme Court, the court-martial of Sam Gonzales and the other two SEALs could not proceed legally if the terrorist was not in attendance.

Her case was unstoppable. And a few days later the judgment of the military court was handed down: victory for the defense. The Supreme Court's C
RAWFORD
decision had mandated that Sam and his codefendants, Matt and Jon, had the constitutional right to face Al-Isawi in court.

“Case over,” muttered Reschenthaler. “Because there's no way they'll bring this crazed jihadist into a US Navy yard.”

Right, but wrong. Paul Threatt came visiting, and he chuckled in his deep southern accent: “You guys gotta hear this one. I just found out we're all flying to Baghdad!” And they were going to hear Al-Isawi's testimony directly.

“WHAT?!”
Carmichael and Reschenthaler exclaimed in unison, astounded at being virtually ordered to spend time in a heavily guarded courtroom in the most dangerous part of the most deadly city in the most lethal country in the Middle East.

“They're just about to make it clear,” said Threatt. “if we want a piece of Hashim, they're gonna fly us to Baghdad. I don't know what's going on, but our SEALs must have really pissed off some people in DC.”

Threatt was not crazy about it either. And neither was the lead defense attorney for Jon, Greg McCormack, who in many ways had only himself to blame. For it was he, McCormack, who had insisted that Al-Isawi was a crucial witness and that there could be no sworn deposition used in court in lieu of the terrorist's live testimony.

McCormack had taken a firm position against any such suggestion—he was adamant that Al-Isawi was a necessary witness and that the trial should not proceed without his live, personal testimony in court that
would allow members of the jury to see him and ask questions of him during the trial.

The argument was too good. The government's lawyers began to splutter, and McCormack won the day. He was nonetheless taken aback when the judge suddenly resolved the issue by ordering the trials of Jon and Sam to be moved to Iraq, where the terrorist prisoner was now in Iraqi custody.

“I admit I was not real thrilled about it,” said the lawyer. “Iraq was a very dangerous place. And because of this, I had for several years refused multiple cases that were taking place over there. And now here I was, heading to Baghdad for this trial.”

Nothing, however, would have persuaded Jon's attorney to withdraw from the case. He believed in the big SEAL's innocence with missionary zeal. And in a series of dazzling legal maneuvers, he had succeeded in removing two of the three charges against his client.

The last triumph took place in the courtroom in Norfolk before Judge Carlos in late March. And right here, finally, the special agent who had mercilessly conducted the alleged abuse investigation out of Ramadi came face to face with someone who could answer back. The agent, an ex-sheriff from South Carolina and an ex-FBI agent, had been especially antagonistic at Jon's interrogation, and he was still was no pushover.

But McCormack had filed a motion to suppress, and he had a critical point of law to prove, and this soon left the agent stuttering for words. In the end the attorney from Virginia Beach forced him to admit he had failed to read SO2 Keefe his proper rights when he had him in that room at Ramadi.

The issue was Jon's second statement, which he was coerced into making despite the existence of the first. In these cases it is mandatory upon the government to inform the accused of the “cleansing warning,” when he must be told that that first statement will not be used against him in a future court-martial. The special agent had issued no such warning, and McCormack left him swinging in the wind.

Judge Carlos granted the motion, threw out the charge involving Article 107, that Jon, asserting that he did not see anyone abuse or mistreat Al-Isawi, had made a “totally false” statement that was known by
Jon to be so false. The judge's ruling was firm: There was “no cleansing warning”—and that made it unfair and against military law. Goodnight Vienna.

“Right at that moment I knew I had a chance,” says Jon now. “Greg was awesome. I'd always been told I had one heck of an attorney. And now I'd seen it firsthand, right there in that courtroom. He was right up there, fighting for me, arguing, acting like the charge against me was a crime against humanity.

“I remember sitting there watching him and thinking, ‘Jesus! I'm glad he's on my side.'”

When McCormack was all done with the charge that Jon had deliberately made a falsified statement and Judge Carlos was all done with the accusation he would not allow on a point of law, all that was left was the charge that Jon had somehow committed a “dereliction of duty.”

Above all other things McCormack understood how much Jon was counting on him. So despite Baghdad bombs, high explosives on desert roads, suicide attacks, and ambushes, he would have walked barefoot to Iraq to protect Jon.

And by now he had become a genuine expert on the case. He had interviewed Westinson in what was probably the most demanding two hours and twenty minutes of the young guard's life. McCormack had probed, demanded, questioned, and reminded as he pieced together all that had happened in the half-light of Camp Schwedler in the hours right before the sun had risen above the eastern horizon of the Syrian Desert on that ill-starred September morning.