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

by Robinson, Patrick

  with first week.

  Q: Special Agent was ordered to withhold the day and time and location of completion of this statement from you. Do you have any objections?

  A: No.

  There would be a great deal more to come because, as Puckett’s letter to the general had so strongly intimated, the defense attorneys for all three accused Navy SEALs would be traveling to Iraq for a possibly revealing chat with the Butcher of Fallujah, who now claimed “prisoner abuse.”

  9

  US GOVERNMENT DENIES IMMUNITY

  When I saw the document, which stated, top left, UNITED STATES V. JONATHAN KEEFE, S02, US NAVY, I had to leave the room, because I thought I was going to be physically sick. I was gone for about twenty minutes. My lawyer probably thought I’d killed myself.

  There are a lot of decks in the US Navy—quarter decks, gun decks, foredecks, flight decks. But in January 2010 there was a brand-new one entering the seamen’s lexicon: the stacked deck. Because by now the government was preparing to erect yet another roadblock right in front of the accused Navy SEALs.

  The government’s stacked deck involved the necessary statements of the five SEALs who were ready to stand in a courtroom, any courtroom, and swear to the innocence of Matthew McCabe, Jonathan Keefe, and Sam Gonzales. They were the platoon lieutenant, Jimmy; Petty Officers 1st Class Rob and Eric; Lieutenant Junior Grade Jason; and SO2 Carlton Higbie.

  All five of them had walked across that dark and lethal desert on the fateful night of September 1, walked alongside Matt, Jon, and Sam, not knowing whether they were headed into a quiet, sleeping al-Qaeda camp or into the jaws of hell. Eric had walked alone, out in front of Matt, wide to the right of Jon, point man for column two.

  Carlton had walked close to Sam, who had a hair-trigger grip on the comms. Jimmy was right there with them, armed to the teeth and in command. And now the US government was ranged against them all, seemingly determined to ruin Matt, Jon, and Sam. The government was preparing to deny immunity from prosecution to the other five if they dared to stand in court and speak up for their blood brothers in combat.

  This was a truly shameful episode. The five SEALs not being charged—yet—had, through their lawyers, requested immunity during any court appearance, as none of them wanted an aggressive prosecutor, steeped in the tricks and wiles of the courtroom, to trip them up.

  All five of them were smart as hell, but they knew little of the law; however, they knew only too well the treatment so far meted out to Matt, Jon, and Sam in the long weeks while the military was attempting to wring confessions out of them. Most of them knew, blow by blow, how government legal officials had spent hours threatening and promising, doing anything they could think of to get an admission, almost forcing the SEALs to sign documents that would confirm that Matt had whacked the murderer and that the other two had lied, cheated, and schemed to get him out of it.

  The request for immunity from prosecution was normally routine, so no one expected the requests to be denied. But this case was different, way different. The government appeared to believe there were no holds barred.

  And soon, they would learn, the government was prepared to deny their routine request for immunity. The lawyer representing the five SEALs, however, would make it plain: the Team 10 witnesses were not going anywhere near a courtroom until they were given guarantees that they too would not end up in the same boat as the three accused.

  As the lines were drawn over the immunity issue, there was a weird and angry silence from the government. And all three defense teams were left to reflect on the inordinate set of circumstances that had dominated this case from the very first moment Ahmad Hashim Abd Al-Isawi had opened his mildly damaged mouth with his poisonous accusations against US Navy SEALs.

  And from then on the SEALs had been up against it. There was the alacrity with which they had effectively been determined guilty, removed from their base, stripped of their armor and weapons, separated from their teammates, made to live with the Iraqis, do menial work, act as servants to other SEALs, and be disbelieved at every turn in their road.

  There were the countless times when Jon Keefe had been asked to turn against his friend Matt McCabe and admit he had watched him strike the prisoner. There were the failed attempts to get them all to sign documents admitting to their “crimes.” And there were the absurdly long delays in providing the defense with routine discovery documents essential for any trial.

  And what about the sudden refusal to bring Al-Isawi to the United States so that Matt McCabe should have his constitutional right to face his accuser and confront the “evidence” against him? How about the government’s obvious ploy to ensure that defense counsel could not cross-examine this known liar in an American courtroom witness box?

  And how about the public uproar? The heavyweight legal opinions being flung at Major General Cleveland? And what about the demand from the US Congress that this entire prosecution be abandoned? And the obvious wish of the American people to have this case thrown out, regardless of whether Matt had walloped the terrorist. There were hundreds of thousands of cyberspace messages evoking nothing but fury and suggesting that no one in the entire country would have given a short damn if Matt had shot the terrorist and been done with it.

  Thousands of ordinary people were contributing thousands of dollars to finance the three SEALs’ defense. But all to no avail.

  The government seemed determined to find them guilty. And now there was this latest hurdle—nonimmunity for the five Team 10 SEALs who wished to testify on their brothers’ behalf.

  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 fr
om 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, w
hich 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.