Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"-and the Shameful Ordeal They Later Endured (9780306823091) (53 page)

This one, however, was more evenly weighted. And the prosecution countered strongly, arguing that FoxNews had not provided sufficient objective facts in their report to warrant the dismissal of the case.

Judge Modzelewski accepted the prosecution's argument, agreeing that television stations need only rumors to allow them to run the
story. That is not good enough for a US court of law, where evidential requirements are about one hundred times more stringent.

She dismissed the defense motion not for the lightweight methods of modern journalism but because she held that General Cleveland could not be held responsible for the continuation of the trial and because Matt himself had been given the option of nonjudicial punishment but chose instead to go to court-martial.

Just how little the military judiciary had played this angle was actually quite alarming. A naval nonjudicial punishment carries the assumption of guilt and is almost certainly a career wrecking ball. The three SEALs were admitting nothing, so the court-martial was their only option to establish total innocence. And for them nothing less would suffice.

Anyway, on Monday morning, May 3, Judge Modzelewski threw out the motion, rejecting the FoxNews report.

Puckett and Faraj were back on their feet in a flash, bringing a second motion that asked for a new transcript of Al-Isawi's deposition, the one taken in Baghdad that would constitute his testimony in absentia in McCabe's trial.

Al-Isawi was a prosecution witness, and the government had provided the translator. Urged on by Reschenthaler, Puckett and Faraj understood only too well the critical nature of any Arab translator who might have been either dumb, deaf, or crooked, and they wanted a new one to listen to Al-Isawi's audio testimony. And this might have taken another day.

But defense did not care how long it took, because both lawyers realized that the Arabic translator might have said anything. Faraj had already suspected that in pretrial depositions the translator seemed to be asking his own questions and ignoring those that the attorney posed. He told this to the judge, protesting that it was against the rules, and he provided a totally unreliable and untrustworthy deposition.

The defense wanted a brand-new linguist, with no prior knowledge of the trial and with an unbiased way of presenting the answers from the shatteringly dishonest terrorist.

Judge Modzelewski agreed with that and instructed the prosecution to provide a new translator to listen to Al-Isawi's audio testimony, even if it did take extra time, before jury selection the following day, Tuesday. This meant that the trial would probably now take up the entire week.

This was the most likely outcome, because all of the battle lines had been hard won. Prosecution and defense had been, effectively, daggers drawn for months on end. And when the trial finally began on Tuesday, May 4, after jury selection, the pure tension of these long, argumentative proceedings could be seen.

An eight-man US naval jury was duly selected—four enlisted men and four commissioned officers. None of them were SEALs. The panel comprised various grades of seniority: one Navy petty officer 2nd class (equivalent Army sergeant), one Navy petty officer 1st class (equivalent Army staff sergeant), one Navy chief petty officer (equivalent Army sergeant 1st class), and one Navy senior chief petty officer (equivalent Army master sergeant).

The officers were a lieutenant JAG, a lieutenant, a commander, and a captain—every one of them was male except the captain.

At eight o'clock that morning Matthew McCabe, in company with his father, Martin, his mother, Pam, and fashion-model sister, Megan, arrived at the Norfolk Base, where a large protesting crowd was assembled at the gates, holding banners aloft and chanting his name. Some had been there the entire night. Tents were still erected, a speakers' forum had been established, and Matt could see a banner that demanded,
STOP THIS WICKED COURT-MARTIAL.
And he could hear the voice of the American public chanting his name, over and over: “MATTHEW... MATTHEW!”

It was a chorus that had echoed across the country in a hundred meetings and fund-raisers and in the great halls of the US Congress. And it was a chorus that refused to be stilled. And even with the military's iron clamp on the release of information, that voice could still be heard echoing in the early morning quiet of this vast naval dockyard.

They drove past the security guard, and Matt hunkered down in the backseat and tried not to be recognized as reporters, broadcasters, and cameramen swarmed toward every incoming vehicle, trying to catch a glimpse or perhaps a even a word with the SEAL whose prosecution had enraged so many ordinary US citizens.

The media, though resolutely on the side of all three of the accused SEALs, had not quite lined up their ducks correctly. Their overall view remained steadfast:
If Matt had walloped the terrorist, so what? The terrorist deserved it. And who cares anyway?

Curiously this was gratifying but by no means acceptable to the SEALs. Months later Sam Gonzales mentioned to his legal team that people had missed the point. The three accused did not wish for approval nor indeed support for a stray punch landing on Al-Isawi; rather, they wanted it plainly understood that none of them, Matt, Jon, nor Sam, had punched the detainee, that no SEAL would ever dream of punching a detainee.

That was why they had all gone to court-martial. It was also why a large group of SEALs were all lined up ready to march into that courtroom and stand with Matt against the forces of doubt and dishonor.

It was also why Matt was very gun-shy about the press. He was never quite sure how journalists would present this case to the public. And his lawyers understood they were not seeking dismissal on some technical point of law; Matt wanted total exoneration, just as his two teammates had been granted.

He did not want the question of the punch to be somehow held up in the air:
even if he threw it, how could it matter?
He wanted three things established and then hammered into a marble tablet: no punch, no punch, and no punch. Because there was no punch.

So the car left the chanting crowd behind and headed for the US Navy courtroom, a four-story granite stronghold that stands guard over military law in the Dark Blue section of the US Armed Forces.

Smartly dressed in his dress blues, Petty Officer McCabe walked with his family into the building and down the corridor into the courtroom where the charges against him would be heard and disputed, again and again, during the next four days.

The room itself resembled every courtroom in a thousand Hollywood movies: about a dozen rows of benches left and right, with a three-foot-high balustrade and a swinging gate in the center. The long table for the prosecutors was set to the left-hand side of the well of the court, closest to the jury, with the defense table on the right.

The judge, Captain Modzelewski, sat on a raised dais, directly ahead, and she greeted the SEAL from Ohio with noticeable respect. He replied succinctly: “Yes, ma'am.”

Matt sat between his four attorneys. The two Navy JAGs, Lieutenant Kevin Shea, and Lieutenant Kristen Anastos, were both wearing dress whites. On his other side were his civilian attorneys, the ex-US Marine officers Neal A. Puckett and Haytham Faraj, both wearing immaculately tailored business suits.

This represented a whole of lot of legal muscle for one possible whack. But right now Matt understood, perhaps above all other members of the Armed Forces, just what it might take to stop a shocking accusation once it had been given an unexpected green light from the high command.

He glanced back once to the now-full public gallery, and he could see Jon Keefe's parents sitting close to his own. He caught his mom's eye, and in a strange way that meant all the world to him. Pam smiled at him just once—a fleeting confirmation that she was still in his corner, right to the end, just as she always had been.

He could also see Echo Platoon's senior chief, a very influential SEAL whose presence was highly significant and represented vital support for the accused man.

Katie Helvenston and Donna Zovko were also seated. These were the mothers of two of the murdered Blackwater security men who had been mutilated and strung up from the Fallujah bridge over the Euphrates. Jerry Zovko had been a former Army Ranger, and Scott Helvenston had been a former SEAL. Eight years after their barbaric murders both mothers still wept for their slain sons. Donna was still inconsolable as the full name of the Butcher of Fallujah was read out in open court.

Both men had been laid to rest in US military national cemeteries—
Jerry, thirty-two, in the Western Reserve, near Akron, Ohio, and Scott, thirty-nine, in the Florida National Cemetery in Bushnell. But there was something so appalling in the manner of their murders that no one associated with either man ever fully recovered.

And no one ever forgot Katie's remarks after the fifth anniversary of that notorious Fallujah ambush, when she finally blurted out that Al-Isawi's men had decapitated her son and then cut out his heart. “How could anyone, how could they be so cruel?” she whispered, adding that DNA samples had to be gathered from Scott's children in order to identify his body because he had been mutilated beyond recognition.

And now she would live through it all over again. And once more tears streamed down Katie's face as Lieutenant Nick Kadlec rose to present the case for the prosecution of Matthew McCabe.

He explained to the jury that this was a prosecution that they did not want to hear. “But as the evidence unfolds,” he said, “it becomes a story you must believe.”

Matt never flinched as Kadlec added that Matt had failed to live up to Navy standards when he struck the detainee in the abdomen and walked away, leaving the prisoner on the floor, bleeding.

Almost as a parting shot, Kadlec confirmed that the detainee had his hands tied behind his back throughout his ordeal. “I urge you to do the right thing,” he told the jury, “and summon the moral courage to hold McCabe accountable.”

Puckett conducted the opening submission from the defense, and he immediately contended that Petty Officer McCabe was only doing his job, doing what all SEALs are trained to do, serving an Iraqi arrest warrant. He quickly added that the detainee's mouth injury had begun as a canker sore and that any subsequent bleeding was self-inflicted and had nothing to do with McCabe.

He told the jury they would not be convinced beyond a reasonable doubt, “but you will believe he is innocent,” he said, “because Petty Officer Matthew McCabe is innocent.”

The prosecution then deployed the three-hour audio deposition of Ahmad Hashim Abd Al-Isawi, who by now had been charged by the
Iraqis with masterminding the 2004 slayings of Jerry Zovko, Scott Helvenston, and two others.

And during this the court heard him deny any involvement with al-Qaeda or Hamas. He stated simply that US and Iraqi forces had raided his home and then taken him to a US base, where he was attacked “for five minutes.”

He claimed he was standing with his hands tied behind his back when he was hit in the stomach. He described how he fell down from the force of the punch and hit his face on the floor. He said he felt “pain in my face” and later tasted blood in his mouth. While on the floor, he said, he had been kicked several times with a boot-covered foot in his shoulder and back.

He said that even though he was blindfolded, once he hit the floor he could see enough from beneath his eye cover to realize his attacker was bare-legged and wearing shorts. At no time did he identify any SEAL as his assailant.

At the conclusion of Al-Isawi's electronic deposition, there was of course no cross-examination, as he was approximately seven thousand miles away in a Baghdad military jail, and Matthew had waived his right to confront him in the courtroom. But the defense lawyers were well up to pace with the savaging that Reschenthaler had handed out to the terrorist during the Sam Gonzales trial.

And the jurors understood, like everyone else, that the terrorist had not been believed in either of the Iraqi trials. The still-contentious issue of his nonappearance remained immovable. The US government was never going to bring Al-Isawi into the United States; therefore, the case had needed either to be moved to Iraq, where he could appear in court, or it would stay in Norfolk, and defense would have to do without cross-examination.

The attorneys had decided there was no sense taking Matt back to Iraq to stand trial in a hostile environment. They would proceed in Norfolk without “crossing” Al-Isawi, whose total unfamiliarity with the truth was, after two trials, now an established fact.

This left the government with only one other card to play: the MA3 Brian Westinson. Again the prosecutors presented Westinson as a
credible and reliable witness. But this was swimming against a flood tide of testimony to the contrary. So piece by piece Puckett dismembered his statements in the witness box. He pointed up the inconsistencies, the clashes on the timeline, the differences, great and small, in Westinson's several statements and interviews.

As soon as the Washington attorney stood up to begin the cross-examination, well, the writing was on the wall for the prosecution.

       
Q.
You're nervous today, aren't you?

       
A.
Yes, sir
.

       
Q.
You're nervous because you've testified twice before and weren't believed?