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.”
The lieutenant specifically asked MA3 Westinson: “Did anyone do anything to the detainee?” To which Westinson responded, “No, I do not know.” And then, a couple of days later: “I saw something.” He then asserted to Lieutenant Jimmy that he saw SO2 McCabe punch the detainee in the stomach “while SO1 Sam and the accused were present.” McCormack noted archly that “the specific factual assertions to the alleged assault, provided by MA3 Westinson, are markedly different from those of the detainee.”
A brilliantly argued summation of the situation dominated the second page of McCormack’s motion. It read, in part:
MA3 Westinson is the key Government witness in this case, and without his testimony, the Government would have no evidence to support the accusations against either Keefe, McCabe or Gonzales. MA3 Westinson acknowledges his attempts to be separated from the Navy early, in order to pursue a career with the California Highway Patrol, and that a conviction by a court-martial would destroy his efforts to secure that career in civilian law enforcement.
To this date, MA3 Westinson has never been charged in connection with his failure to protect the detainee as was his duty, nor with failure to report the injury to the detainee, nor with false official statement for his initial denial of any knowledge of how the detainee was injured.
Although MA3 Westinson has not been granted testimonial immunity by the Government, it is the position of the defense that the Government has, in effect, secured the cooperation of Westinson by giving him the belief and expectation that he will not be prosecuted, so long as he cooperates, and testifies as a Government witness in all three cases. The defense submits this situation is the equivalent to de facto immunity.
On page five of the motion McCormack wrote the headline Discussion, and underneath he quoted the Rules of Court-Martial (RCM) 704(e) that pointed out that the decision to grant immunity is a matter within the sole discretion of the convening authority.
However, if a request has been denied, the military judge may grant appropriate relief by directing the convening authority to grant immunity to a defense witness, or he may abate proceedings against the accused upon finding that the following three requirements have all been met:
1. The witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify.
2. The Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination.
3. The witness’s testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source, and does more than merely affect the credibility of other witnesses.
In applying RCM 704(e) the court of appeals for the Armed Forces found that all three prongs must be met. In his motion McCormack reminded the trial court that, according to Gittins, all five witnesses intended to invoke their right to remain silent if called to testify, which satisfied the first prong of the RCM 704(e) test.
He then pointed out that the government had de facto granted immunity to MA3 Westinson by not pursuing charges for his admitted dereliction of duty and false official statement. These protections, informally afforded to MA3 Westinson, allow the government to secure the testimony of the only person claiming to have witnessed the detainee’s injury.
By denying the defense request for testimonial immunity of each witness, the government simultaneously eliminates four essential, relevant, and material witnesses who exculpate SO2 Keefe with specific factual evidence and undermine MA3 Westinson’s credibility. They provide evidence of his conflicting statements and his motive to lie. They also present crucial testimony as to SO2 Keefe’s general military character for truthfulness.
The government’s actions amount to discriminatory use of immunity, thus satisfying the second prong of the RCM 704(e) test.
Finally, the attached proffers clearly indicate that these material witnesses would provide crucial testimony that can be utilized in the defense of SO2 Keefe, that because each witness had a unique role and perspective, none of their testimony is cumulative or obtainable from another source, and that they offer specific facts tending to establish SO2 Keefe’s innocence as well as to impeach MA3 Westinson’s expected testimony.
All three prongs of the RCM 704(e) test were met. Consequently, the defense motion to direct a grant of immunity or abate the trial should be granted.
Almost every defense lawyer involved in any of the forthcoming three trials thought that was probably game, set, and match to the defense. The facts of the issue were indisputable: the Rules of Court-Martial were not only clear; they were also carved in stone.
McCormack had blown apart any sense of fair play in this trial, and he’d exposed the government’s nearly naïve attempt to dance around the rule book by granting immunity to Westinson but not actually admitting it. As discriminatory actions go, this one was right up there.
But it was still up to General Cleveland to grant the immunity, and he was not required to offer an explanation if he decided not to. As things now stood, the courts-martial against Jon and Sam would take place in Iraq because the US government had flatly refused to allow Al-Isawi to set foot in the United States but could not deny the two accused SEALs their right to confront their accuser in court.
The government did not, of course, offer to contribute a dime toward the enormous cost of flying the defense lawyers halfway across the world to Baghdad, leaving that to the SEALs and their thousands of supporters to make their own wildly expensive arrangements.
And out in the great wide world of the United States, those supporters were continuing to raise their voices in protest at the court-martial proceedings. In addition to the huge website Graham Ware ran, all kinds of organizations were emerging, all of them complaining as well as gathering financial contributions to try to cover the endless bills such trials invariably generate.
From the mighty to the humblest, thousands of blogs and tweets came zipping through cyberspace. From the cold slopes of Alaska, Sarah Palin, the Republican Party’s nominee for vice president in 2008, in a characteristically forthright editorial, commanded Americans to “Stand up for the SEALs who are standing up for us!”
There was a rising sense of pure indignation in the United States, as Americans raged against the image of the “lawyered up” jihadist murderer accusing the god-like Navy SEALs of “police brutality.” No one believed him. All that people understood was that the US military was falling over itself to prove how Muslim-friendly it was. At least that’s the way it seemed to the average person, including about eight zillion bloggers.
The SEALs’ trials were being compared to the 2005 “massacre” in Haditha (referred to in chapter 1), when US Marines—who had been fired upon, murdered, and bombed—were accused of being murderers themselves after retaliating. In that travesty of military justice the Marines were all acquitted, but the public saw it as just another grotesque example of the US Navy trying to look “nice and politically correct.”
Experienced US military veterans were angrily pointing out that if the prosecution really did have the SEALs dead to rights, they would have gone straight to a “showpiece general court-martial” in order to assuage their fervent desire to be seen as the fairest of the fair.
To many Americans this was the mind-set of the damned, because the Uni
ted States was involved in an undeniably brutal shooting war in Iraq, where troops were grappling with a cold-blooded jihadist enemy whose chosen currency was bombing, gunfire, executions, torture, and the daily killing of US troops, wherever and however they were serving in that hot, benighted, tribal country.
And by this time the Islamists had learned that the United States would rather suffer any indignity than honestly admit to themselves how much they were hated in the Land of the Two Rivers. The United States was just pretending, and the courts-martial of the SEALs merely caused veterans to write hundreds of dark tweets, warning that a great price would be paid for this cowardice.
“And that price will only go up,” warned one former Marine officer. “It always does.”
In Arizona, Ware almost lost count of the times he was sent one of the more famous quotes regarding the military’s place in society, such as:
People sleep peaceably in their beds at night, only because rough men stand ready to do violence on their behalf.
—George Orwell, author and former unit infantry commander, Spanish Civil War, 1937
One highly respected educator from Virginia, the daughter of a “decorated combat veteran who gave his life in the service of this country,” sent a moving letter to Major General Cleveland; Admiral Gary Roughead, chief of naval operations; and the Honorable Ray Mabus, secretary of the US Navy. It read,
My nation is on the slippery shore of very dangerous waters and we are currently engaged in the act of assisting our sworn enemy. I respectfully request your assistance in stemming this tide.
After begging them to stop the courts-martial, the writer added how “deeply concerned” she was for the nation. And there were, literally, tens of thousands of letters in this vein being written in the United States during that early spring, expressing not so much anger as bewilderment. But this lady had said it particularly well: “Are we supposed to believe that these three men—the smartest, fastest, best-trained, strongest and most capable, are going to engage in a cover-up over such an incident? This simply does not make sense ... to this mother’s ears.”
She concluded her communication with a final couple of paragraphs aimed directly at the three authorities she named at the head of her letter, General Cleveland, the CNO, and the secretary of the Navy. She said that she felt the three SEALs “would be quicker to leap to our defense, more diligent and self-sacrificing in protecting us, than you would be; certainly less concerned with self-protection.” And she added, tellingly, “Politicos and journalists do not secure our safety, nor protect our civil and Constitutional rights, soldiers do.”
She sent copies of her letter to the three principal defense lawyers, hoping, correctly, that they might share her view that in this instance the military had effectively gone off its rocker. And every one of the lawyers read it thoughtfully, gratified in so many ways to read the well-presented opinions of an educated, rational, and concerned American citizen.
These middle days of March were bringing the ground rules of the courts-martial into very sharp focus. General Cleveland gave no indication that he was considering changing his mind about granting standard immunity to the five witnesses for the defense, Carl, Jason, Eric, Lieutenant Jimmy, and Paddy. Thus, having been implicitly warned they too might end up being prosecuted, none of them would appear in court for Matt, Jon, or Sam.
But there was by this time a new and powerful force in the arena. And just as Shakespeare’s soothsayer mentioned to Julius Caesar a couple of thousand years ago to “beware the Ides of March,” so the court-martial judge might have alerted General Cleveland that he ought to beware the consequences of the obviously tricky ploys from his fiercely determined military prosecution team.
On Friday, March 12, the judge who would preside over the two courts-martial in Iraq for Jonathan and Sam made a ground-breaking decision. He informed Major General Cleveland that he categorically did not understand his decision to not grant immunity.
He then simplified the entire issue by stating that General Cleveland had until March 24 to change his mind and grant all five witnesses the immunity their lawyers requested or else the judge would throw the entire case out of court, and that would be the end of that.
This was something of a bombshell to all the commanders who had a hand in this curious prosecution. But it came as no shock to many Navy personnel who were acquainted with the judge. For he was Commander Tierney Carlos, a New Yorker and former assistant district attorney with a very obvious hard edge and an accent straight out of the Lower West Side. One of his favorite descriptive phrases for those he considered less than well briefed was “knuckle head.” He was also inclined to fire out the word “dopey” with impressive venom.
He had left civilian law, apparently tired of endless murder cases, and elected to join the US Navy JAG corps in Southern Virginia, where he rightly foresaw a “cleaner” practice and a better quality of life.
Commander Tierney, since then promoted to naval captain, was a vintage New Yorker—a five-foot, seven-inch lean and muscular lawyer with well-cut gray hair and a sharp and decisive manner that concealed a kind and reasonable spirit. Rumors abound, though never confirmed, that he generously mentored several young attorneys who he believed showed real talent in litigation. There were many counselors who had fallen foul of the high standards of his courtroom, and yet the word most associated with Judge Carlos was “fairness.” He particularly disliked big, powerful organizations bullying defendants or witnesses.
And from the very start of the SEALs’ prosecution there was a kind of controlled exasperation in the judge’s demeanor. All of the lawyers suspected he was content to hear the case and to make any decisions required of him. But there was something in his attitude, as though he were slightly impatient with the prosecution, as though, like most of the country, he considered the three SEALs should be believed, that they had somehow earned the special places they occupied in the American people’s hearts.
It was as though Judge Carlos recognized that the SEALs did have special license that sometimes empowered them to kill their enemy, no questions asked, because the mortal dangers they so often faced were too great to tolerate anything less.
And on this Friday afternoon in Norfolk in March 2009, he listened carefully to the outline of the case—how a sailor guarding the detainee in the hours after his capture claimed to have seen Matt McCabe punch a terrorist while Jon and Sam watched. And now the distinguished petty officer 1st class, Sam, stood accused of dereliction of duty, impeding an investigation, and making a false official statement.
The defense stated that four other SEALs, including the detachment commander and a Navy corpsman present on the day of the alleged assault disputed the guard’s claims. And now, five months into the investigation, they learned that they too could face prosecution. As a result, they hired a lawyer and requested immunity before testifying in the three cases that had gone forward. And now, without giving any reason, Major General Charles T. Cleveland had denied those requests.
Judge Carlos responded by confirming he did not understand that decision. He said the testimony of the five witnesses would shed doubt on the guard’s allegations. Not granting the immunity, he ruled, is either an attempt to gain tactical advantage over the defense or evidence that the government is overreaching.
Just as important, Judge Carlos ruled, is that the expected evidence would be exculpatory—that it would clear the defendants of guilt. Documents the men submitted about what happened between 5 a.m. and 8 A.M. the day after Al-Isawi’s capture, Judge Carlos said, make clear that the guard was occasionally left alone with the detainee.
The men’s refusal to testify under their Fifth Amendment right does not mean they have anything to hide, stated the judge. And he cited Supreme Court rulings, noting that one of the Fifth Amendment’s basic functions “is to protect innocent men ... who otherwise might be ensnared by ambiguous circumstances.”
Judge Carlos gave Cleveland until March 24 to provide immunity to the
five witnesses. He added, “If this does not happen, this court-martial will be abated”—the legal term for indefinite postponement.
It was, of course, the second time Judge Carlos had made a significant ruling in favor of the defense. In January, after the government indicated it would not bring Al-Isawi to the United States to testify in Sam Gonzales’s court-martial, the judge moved the trial to Baghdad on the grounds that the petty officer had the right of confrontation—to face his accuser.
And now, by the second week in March, SO1 Gonzales had his court-martial set for Baghdad at a similar time to that of Jon Keefe. Judge Carlos would preside over both of them. Matt McCabe’s much more serious court-martial would take place afterward in Norfolk, Virginia, in May, in front of a different judge.
That Friday evening, March 12, the court papers were forwarded to the convening authority, General Cleveland at MacDill, Florida, as well as to various officials in the Pentagon. There were, subsequently, many tortuous conversations on that following Monday morning all over the US military’s legal departments. But the decision was already made. Denying the requests for immunity was now pointless, because without this there would be no court-martial. Judge Carlos had ensured that.
And Monday was the day of the Ides of March, the fifteenth day, the date when the great Caesar was stabbed in the back twenty-three times right there in the Roman Senate by men he believed were on his side. Somewhat wryly, Matt said later he understood more or less how Julius felt.
And now the cases did appear to be turning in the SEALs’ favor. And several things happened—all pretty good—in quick succession:
1. General Cleveland, with no options whatsoever, granted immunity for the five SEALs, freeing them to testify on their brothers’ behalf.
Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the Butcher of Fallujah -and the Shameful Ordeal They Later Endured (9780306823091) Page 27