Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (50 page)

They would leave it to the judicial expert on the case, Judge Carlos, who had not let them down in any way thus far.

McCormack decided not to disclose this change in forum until the morning of trial, and as expected, it threw the prosecution off base, as they found themselves now trying to persuade a senior JAG that the previous trial had been “unsafe” and that Jonathan Keefe, the breacher from Virginia, was guilty as charged. And they were extremely pressed for allies.

And McCormack had his heavy guns primed. When Jonathan Keefe's trial began in the morning, McCormack would reserve his most telling barrages for Westinson. In his opinion Reschenthaler had so utter discredited the terrorist that he scarcely mattered. Whatever he said, it no longer counted.

The specific task of Jon's defense team was to remove once more the master-at-arms as a dependable voice for the prosecution, as Carmichael and Lombardi had done for Sam Gonzales. And the decision to go with Judge Carlos quickly proved to be a master stroke. The prosecution were instantly on the back foot, forced to shelve speeches designed for a jury.

And McCormack was about to give one of his finest military trial performances in the court of a judge who had not yet shown
any
significant sympathy to the men who sought to ruin the three SEALs.

On the morning of the trial he was accompanied by Lieutenant Paul Threatt, who had stood so doggedly alongside Jon from that very first phone call from Norfolk to the Qatar Base. Neither attorney had ever doubted Jon's innocence, and McCormack in particular, after his long wait in Amsterdam, was fired up for confrontation.

As for the prosecution, there was an understandable lack of steam, at least it seemed so to McCormack. Their situation was simple to understand: the jury in the previous case had not believed what Al-Asawi had alleged and had not believed Westinson. That jury believed both of them were lying. In fact they probably thought that everyone in the courtroom believed both of them were lying.

And here they were again, trying to convince the very same judge that yesterday's not-guilty verdict for Sam Gonzales was actually a mistake and that Al-Isawi and Brian Westinson were, after all, shining beacons of truth.

Tough call. And in McCormack's opinion there was a distinct lack of zing in the prosecution's opening attempts to inform Judge Carlos that Navy SEAL Jonathan Keefe, a striking figure in his dress blues and combat decorations, was a liar and was derelict in his duty.

There was an irrelevance to Al-Isawi's appearance, but when Westinson took the stand, here was the real target. And when McCormack rose to begin his cross-examination of the young master-at-arms, the crowded courtroom took on an entirely new atmosphere.

Armed with a crisp legal summary of all prior statements, McCormack came out swinging from the opening bell, and he wanted to know precisely why Westinson had denied seeing anything when Lieutenant Jimmy first questioned him. He rapid-fired questions at MA3 Westinson, not being particularly interested in what he had to say in response.

       
How come you saw nothing that time, and then saw every SEAL on the base banging away at Al-Isawi?

       
I think we've established you were lying—I just want to know when? Which time?

       
Could you just explain to me how you went from seeing nothing, knowing nothing, to witnessing this apparent gang of Navy SEALs all attacking the detainee, one after another, abusing him, right before your eyes?

Sarcasm almost enveloped the courtroom as McCormack reminded MA3 Westinson that he'd claimed the two-and-a-half-ton holding cell was “rocking when the SEALs were beating up the detainee.”

And then the classic line from the previous day was of course repeated: Al-Isawi had no marks, with the only minor injury being the abrasion on the inside of his lip, which the oral surgeon had said, categorically, was self-inflicted. If this had been a championship bout, the referee would have stopped it. Either that or the government's corner men would have thrown the towel into the ring.

By the end of that cross-examination McCormack was confident. The master-at-arms, he believed, was suitably discredited. McCormack stressed the probability that Westinson had essentially made up his story to cover his own rear end. He had, after all, been alone with the detainee, and when Lieutenant Jimmy finally saw the small cut on the Iraqi's lower lip, Weston had decided to give himself a custom-made alibi.

McCormack's presentation of this theory was relentless. And although spectators, both media and Iraqi officials, might have thought they were seeing a skilled and pugnacious American attorney merely bullying a witness, they were not. Instead, they were witnessing the pent-up fury of a veteran lawyer who believed to the bottom of his heart that Jon, Matt, and Sam were the innocent victims of an enormous error of judgment and a virago of lies and false accusations. He believed the military had treated them all disgracefully.

And he was fighting for them with all he had. This was not the venom of a professional trying to win a case; this was a cry from the heart, a demand for Judge Tierney Carlos to put this right. And there would be no mercy for anyone trying to stop him. McCormack was ruthless with MA3 Brian Westinson, and he did not care who witnessed his performance.

He bounced his questions forward and then back, keeping MA3 Westinson off his guard and wanting to know, above all else, why the story changed over time, from knowing nothing to the final version.

He was particularly vehement over Westinson's account of how Jon and Sam had started laughing, and how Jon had gone outside for “a big log,” which later became a “little stick.” And how the SEAL breacher had stood over the detainee, making a “growling, roaring” noise trying to “psyche out” the detainee.

He demanded definitions for the words “growling” and “roaring.” He wanted to know how big the log/stick was, to the inch. He bounced back to the times the detainee was without a guard, when Weston had left for short periods. He wanted to know if anyone else
could
have committed an assault.

That was one very confused master-at-arms when McCormack was all done with him. And the attorney was so confident that he immediately told Jon that there would be no need for him take the stand and testify. The defense would rest without presenting any substantive evidence, just as they had planned in the small hours of the morning on the cluttered bed of the lead counselor.

They would not even call on the hero of the hour, Petty Officer 1st Class Sam Gonzales, who was in attendance, wearing full dress blues and ready at a moment's notice to step up and swear to God that Jonathan Keefe had never once in his military life been derelict in his duty and neither would he have dreamed of telling a lie to his superior officers.

The prosecutors could struggle on all alone. And Judge Carlos would have the option of confirming what had been established yesterday: there was insufficient evidence to eliminate the possibility of reasonable doubt.

There was, however, one significant turn this case would still take, and the Judge himself activated it. He had seemed slightly on edge over the nonappearance of any defense witnesses. Suddenly, when it became official that defense would offer no more, Judge Carlos elected to call witnesses of his own. It was the first time in a long career that McCormack had seen such a development in any courtroom.

And Judge Carlos, as he had always done, operated close to the heart of the matter. He called up the camera operator MC1 Lynn Friant and quizzed her about the somewhat eccentric opinions that Westinson had confided in her. This was understandable, as the highest military authorities, who had, jointly and severally, condoned this ill-fated court-martial, would doubtless scrutinize his verdict.

It was essential that the weakness of Westinson's character and evidence be fully exposed, and Friant could surely shed light on that,
speaking as his surrogate elder sister. And she was particularly illuminating about his fears of a lack of love, both parental and otherwise, subsequent upon this trial.

The judge also called Carl Higbie IV as well as the medical officer who had confirmed there were “no contusions” visible on the detainee. Summoned once more to the witness box, PO1 Paul Franco repeated, as his immediate boss, that Weston was near the bottom of the barrel of all the sailors he had ever supervised.

Paul Threatt cross-examined all these witnesses. But he had no requirement to be combative because they were all on the side of the defense, each and every one of them certain that Jonathan was entirely innocent of the charge against him, whatever the hell it was.

And together the four of them provided a big turning point in the case. And when Grover rose to make his closing argument for the prosecution, McCormack and Threatt were confident in their position.

It was another good speech, making many of the same points he had made the day before: Why would Westinson lie? What about those two former SEALs killed in Fallujah? But the government's case had been established on a quicksand of inconsistencies, exaggerations, and lies.

McCormack then stepped forward to close for the defense with a speech in the same class as Carmichael's opening in the Gonzales trial.

He justified nothing, as he had presented no case. But he concentrated on the utter unreliability of the prosecution's case, with lightly veiled references to the fact that this was a court-martial that should never have been convened, leveled as it was against these upstanding, brave, and loyal members of America's elite fighting force.

Once more the prosecution rose to make its rebuttal, their final closing argument. This took little time, and Judge Carlos probably felt by now he had heard enough. And he immediately called a recess while he retired to consider his verdict. The time was shortly after nine o'clock in the evening, and everyone knew they were there for however long he took.

The judge was under orders to get this thing settled just as quickly and inexpensively as possible. And that did not include another day in
this courtroom. It might drag on until the small hours, but tonight Judge Carlos would pronounce his verdict on Petty Officer Jonathan Keefe.

As the judge retired to his chambers, reporters and broadcasters rushed out of the windowless courtroom into the heat of the desert night, cell phones ready, camera crews on high alert. No one knew how long the judge would take, and the media pack scrambled for satellite connections to the United States.

McCormack remained with Jonathan, but Threatt headed for the exit, just to stand outside in the air, to break from the claustrophobic courthouse and gather his thoughts.

A couple of hours earlier he had been as confident as his fellow attorney, but Judge Carlos's unorthodox decision to call witnesses on his own account had cast mild doubts in his mind—not whether Jon was guilty but rather whether the learned judge had other ideas. Either way he recalled later that he was feeling slightly uneasy, standing out there in the media scrum and listening to them dictating their stories.

He found this disconcerting. Everyone he could hear was sending a story that sounded like a verdict of guilty was more or less automatic. There were endless phrases about abuse, about the SEALs beating up the terrorist, and about how they had closed ranks against the prosecutors.

“It was as if they had heard nothing,” Threatt recalled. “As if they had never even read or listened to the evidence of two of the most unreliable prosecution witnesses ever to set foot in a military court of law.”

The defense's refusal to present a case meant the media had not received the benefit of a group of larger-than-life SEALs marching through the witness box, assuring anyone who would listen that this was the most absurd prosecution ever brought and that all of the accused SEALs were among the best of the best.

In a sense that military tradition of saying nothing had, at this stage at least, somewhat backfired, and thousands of words were flying through the stratosphere, offering lurid accounts of every last act the SEALs were alleged to have done wrong.

It sounded to Threatt as though his client had already been found guilty. And though logic was telling him this was legally impossible, his heart was listening to those journalists, and they were trained not to be right but to be persuasive. And they had about a zillion dollars worth of electronic camera equipment helping them to start spreading the news.

And this would hold up for the immediate future, until Judge Carlos either shut it all down or agreed with the prosecutors.

The time passed slowly: one hour . . . two hours . . . and almost three before the court officials summoned everyone inside. Judge Carlos had reached his verdict a few minutes after midnight, and the courtroom fell stone-silent as he spoke.

“Upon reviewing the evidence,” he said, “and considering the testimony given by Ahmad Hashim Abd Al-Isawi and Master-at-Arms 3rd Class Brian Westinson and, indeed, MC1 Lynn Friant and PO1 Paul Franco, I find there is insufficient reliable evidence. And therefore I find Petty Officer 2nd Class Jonathan Keefe . . . not guilty.”

Jon showed not a flicker of emotion as the verdict was delivered. He offered a tight, curt little nod of approval and turned to shake the hand of the faithful Paul Threatt. But from the crowded courtroom, packed with SEALs, there erupted one of those collective outbursts of
“Y-E-E-E-SSS!”
as the accused SEAL finally walked free, innocent of every charge that had been leveled at him over the previous eight months.