Since 1865 there have been US naval officers belonging to the Judge Advocate General’s Corps. And today there is a worldwide organization of 730 JAGS providing legal and policy advice to the secretary of the US Navy in all matters concerning military justice.
The JAG Corps’ official insignia incorporates a silver “mill rinde,” the ancient French symbol of justice for all, under the law. Its purpose was to keep the great stone wheels of the flour mills separate and even, and thus it represents the fine balance the law must observe between the accused and the accuser. The English law also adopted the old iron mill rinde as a symbol of even-handed judgment.
Which all sounded excellent to Jon, who, right now, had his own JAG. Even in their short phone conversation, Threatt had made it very clear that he believed in his client’s innocence.
But Matt was scared. He had now been told how dangerous it was to appear before a court-martial on a charge that could lead to prison, but he saw no way out. He understood he may need a substantial amount of money to fund his own defense and did not have the slightest idea where to turn.
The fact was he had no one. And he might very shortly owe a law firm $100,000, which he did not have and, in the foreseeable future, had no way of getting. He did, however, understand he could not go into a courtroom charged with beating up a high-profile Iraqi prisoner without a civilian attorney in his corner.
In desperation he called his father and explained what had happened. He had no idea whether his grandfather had anything close to sufficient cash, but he had to start somewhere. He did not know whether Jon might somehow come up with the money, but the McCabes almost certainly could not. Of that he was sure. Neither could Sam’s family. Matt had no idea what he and Sam would do.
“So far as I could see,” he recalled, “I either found a way to raise tens of thousands of dollars or I might end up in the friggin’ slammer. Beautiful, right?”
Matt’s grandpa said he would, of course, help, but he could not raise anything like $100,000. And all three of the SEALs now understood the gravity of their situation. They tried to find details of the court-martial procedures on their computers, but it was not easy.
They did, however, discover there were three types of court-martial: summary, special, and general, the last being easily the worst, as it could not only impose dishonorable discharge, imprisonment, or even have officers fired, but it could actually sentence a man to death for certain offenses.
The summary court-martial was for relatively minor charges of misconduct and usually involved either a reduction in pay or a month in jail. The three SEALs had indications that their own case was anything but minor. The military was regarding it as a potential Abu Ghraib all over again, and the prospects were not pretty.
None of them thought they’d be whisked through a summary court-martial, but they did think they might land the special court-martial, the intermediate level–trial system. This involves a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers forming a jury. This court could remove two-thirds of a man’s pay for a year but, on the bright side, was not empowered to impose a sentence of longer than one year’s confinement.
What they did not know was that their request for a court-martial trial had sent a chill of apprehension through the upper reaches of the US High Command in Iraq, both Army and Navy. The words “prisoner abuse” doubtless caused obvious consternation.
And there was plenty of consternation, as seen when General Cleveland’s staff did everything they could to persuade the SEALs to change their minds. But there was no trust there any longer. Matt, Jon, and Sam believed they would be cajoled and lied to. Essentially they had had enough. And the Army command at Qatar had little option but to allow the case to roll ever upward.
There’s no point in allowing such a matter to take any other course; sending it upward takes the responsibility with it. Which was why, only four days later, an official communiqué was transmitted to General Cleveland’s office, “pursuant to his request to dispose of the allegations of misconduct by SO2 Jonathan Keefe, SO1 Sam Gonzales, and SO2 Matthew V. McCabe.”
It read,
I release jurisdiction to you, and authorize you to dispose of these matters in any manner you deem appropriate. This includes the authority to convene courts-martial at any level, up to and including General Courts-martial, and to refer charges concerning these individuals to any court-martial.
Signed: David Petraeus, General, US Army
“Four-star level, right?” said Matt, a touch sardonically, when he was informed. “No bullshit. From a phantom bang in the guts, straight through to the death penalty. That’s what I like about the Army—no half-measures.”
Three days later the critical document was sent from Special Operations Command Central, MacDill Air Force Base, Florida. It was headed, SPECIAL COURT-MARTIAL CONVENING ORDER 1-09. And it was signed by Charles T. Cleveland, Major General US Army, Commanding:
A special court-martial is convened and may proceed at Naval Base Norfolk, Virginia, or any authorized place as directed with the following members:
Captain G. O’REGAN, U.S. Navy; President;
Commander J. TORRES Jr., U.S. Navy;
Commander K. L. ICARIUS, U.S. Navy;
Lieutenant Commander C. R. LARSON, U.S. Navy;
Ensign B. J. BEYER, U.S. Navy; and,
Chief Warrant Officer 4 A. D. BOWER, U.S. Navy.
The Army might have taken over the reins of the proceedings, but it remained a US Navy issue. The exchange of letters between Generals Cleveland and Petraeus had nailed it all down. Matt, Jon, and Sam would stand trial in a naval courtroom, and if recent events were any guide, they would probably be tried separately.
That meant three separate courts-martial, at withering expense. But expense was no object in this case, not in the military’s relentless search for political correctness, for being seen publicly to have done the right thing—protecting a prisoner’s human rights—and being seen to have punished the “miscreants.” Which is all very fine if they are indisputably guilty.
But if they are not, that search for political correctness may prove catastrophic. Especially if Threatt’s instincts proved correct: the American public and media would loudly disapprove of heroic US Special Forces being dragged through the military justice system on the word of a notorious al-Qaeda terrorist.
That kind of uproar could cause lasting humiliation for the men who had elected to charge the three SEALs. And in the fullness of time, it may prove to be a thoroughly regrettable course of action, from which it might take years to recover.
Meanwhile it all remained a deep secret inside the confines of the military. And the only humiliating that was going on was directed squarely at Matt, Jon, and Sam.
The day after General Cleveland’s court-martial letter was delivered, SEAL Team 10 vacated Camp Schwedler and embarked the aircraft for home, Virginia Beach, with their tour of duty in Iraq completed. The three SEALs facing court-martial did not go with them, however, and this caused their families to be very concerned.
Instead, the three men were ordered to continue their back-breaking menial tasks on the Qatar base, one of which was to load by hand several tons of old furniture onto dump trucks. “That was a bit of a killer, four hours at a time in 130-degree heat,” said Matt, who added wryly: “But the really great part was the US Army never once made us work with a ball and chain around our ankles.”
The truckloads of furniture were not all. There was, on the base, a gigantic warehouse, the size of two football fields, and the three SEALs were made to sweep it out, by hand with brooms, from end to end until it was free of dust and sand.
They were then transferred to the gymnasium and made to clean and sanitize the equipment. They cleaned bathrooms and laundry rooms—“stuff that had not been done in a year,” said Matt. “Just for the record, we completed the lot in one week. I mentioned before, no one can do anything better than us.”
Long days of th
is kind of punishment were interspersed with regular sessions of lectures, as the Army’s legal men tried to persuade them to accept a General’s Mast. Apparently General Cleveland was prepared to see them only under these circumstances, when they would, of course, be required to “confess their crimes.” But the SEALs refused to answer, saying nothing and remaining stubbornly righteous to the end, while everyone waited for the court-martial papers to come through.
This happened on October 5, and at last, a few days after their teammates, Matt McCabe, Jon Keefe, and Sam Gonzales were released to return home. They flew commercial from Qatar to Washington and then down to Norfolk. They were under strict orders not to discuss the case with anyone.
But they did talk to their parents, who had no idea what had happened or why Team 10 arrived back without them. This was not a joyful reunion, and the atmosphere of gloom and dread would remain with them all for the next six months.
Shame affects everyone, especially a young serviceman whose honor has been challenged. It happens very rarely, but when it does it’s an insidious thing: My son is accused of assault and lying ... My son is accused of dereliction of duty ... Can he be guilty? ... Why would the US Navy do this to him if he were innocent? ... Can there be this much smoke without fire?
In these three cases the friends, relatives, and, especially, family members were dumbfounded. Matt, Jon, and Sam were such obviously upstanding people—the charges against them were unthinkable. No one was supposed to say anything about the forthcoming trial, but the rumors were rocket boosted as soon as Team 10 arrived home without them.
The families had been assured they were not dead, injured, or missing in action, but this served only to deepen the mystery, which then had about four days to burgeon into a cauldron of speculation, wild guesses, and despondency. The military is extremely competent at keeping a lid on things, and thus far, despite the breathtaking “news value,” not a word had leaked beyond the Virginia Beach and Norfolk Bases.
As the mystery for the families deepened, inside the Pentagon there was growing dread that the Army was about to hurl the Navy into the worst possible light, led by the convening major general, Charles T. Cleveland.
And those growing dreads grew more realistic every day. And the arrival of the court-martial papers in the first week of October effectively cast the one-month-old saga into stone. There was no going back now. All three SEALs were in the process of hiring civilian lawyers. The high command of the US Army temporarily sidelined the Navy.
The official papers were arriving almost hourly—statements, affidavits, and, worst of all, charge sheets. Jon was almost physically sick at the sight of them:
In that Special Operator Second Class Jonathan E. Keefe, SEAL Team TEN, Naval Amphibious Base Little Creek, Virginia, US Navy, on active duty, who should have known of his duties, at Camp Schwedler, Baharia, Iraq, on or about 1 September 2009, was derelict in the performance of those duties in that he willfully failed to safeguard a detainee, Mr. Ahmad Hashim Abd Al-Isawi, as it was his duty to do.
That was Jon’s violation of Article 92 (UCMJ). The violation of Article 107 was worse, alleging that
with intent to deceive, made to Special Agent John Stamp, Naval Criminal Investigative Service, an official statement, to wit: “I did not see anyone abuse or mistreat Mr. Al-Isawi” or words to that effect, which statement was totally false and was then known by the said Petty Officer Second Class Keefe to be so false.
They hit Matthew McCabe with those exact same charges and then added his alleged violation of Article 128:
In that SPECIAL OPERATOR SECOND CLASS MATTHEW V. MCCABE SEAL TEAM TEN ... on active duty, did at Camp Schwedler ... same date ... unlawfully strike Ahmad Hashim Abd Al-Isawi in the midsection with his fist.
Matt’s accusers were listed as Staff Sergeant Scott K. Ashcraft (US Marines), the man who had first brought in the charge sheet drafts for them to sign, and Commander T. C. Huntley, legal assistant to General Cleveland, the man who had refused to listen to one word of their protests of innocence and who had convened the courts-martial.
Those charge sheets represented the drawing of battle lines. In the coming weeks of October Jon hired the famous Virginia Beach no-holds-barred attorney Greg D. McCormack as his lead defense counsel in addition to the Navy JAG Paul Threatt.
McCormack had the reputation of a formidable court-martial trial advocate. He was himself a former member of the US Army’s JAG Corps, serving first as a military prosecutor and then as a defense counsel for three years until he left the Army in 1982.
McCormack had over thirty years experience of litigation and was licensed to practice law in all military appellate courts. His acknowledged expertise has always been in criminal cases, where his fast, adversarial manner has helped win the release of many, many falsely accused men.
And like Paul Threatt, McCormack made up his mind very swiftly about Jon. He would later state that from the very first he found it utterly impossible that the big Virginian would have dreamed of lying to the SEAL authorities or that he had seen his teammate Matt punch the blindfolded prisoner.
For McCormack it did not add up. Jon was about as blameless as any serviceman he had ever defended. And when the renowned courtroom aggressor felt like that about any accused man, he would go to the ends of the earth to protect him, if necessary. And that included Iraq.
Matt too made a major move toward hiring the very best legal assistance. He went to the former US Marine Lieutenant Colonel Neal A. Puckett, a thirty-five-year courtroom veteran, having been a former JAG and military judge with a towering reputation for combative court-martial expertise.
Puckett had represented the accused in a series of high-profile military cases. But the one that propelled him into national recognition was that of Lieutenant Colonel Allen West, former battalion commander in the 4th infantry division in Iraq and, later, congressman for Florida’s 22nd District Republican Party.
West had been facing charges of detainee abuse in Iraq in 2003 when, admittedly stepping out of line, he had fired a pistol straight past an Iraqi detainee’s head and frightened the living daylights out of him during a robust interrogation.
There had been mitigating circumstances—insurgents were plotting to kill West. In addition, the colonel believed the detainee had substantial information about terrorist activity and was determined to get it out of him.
He confessed to losing his temper and equally to taking a few whacks at the prisoner. But, in precisely the same manner as the case against Matt, Jon, and Sam, the entire thing got rapidly out of hand, despite no one having come to much harm. And the gunshot had worked: the prisoner immediately divulged plans for an upcoming attack that would probably have cost many American lives.
His CO, Major General Raymond Odierno, brought down the guillotine on the well-regarded West, immediately relieving him of command, which instantly killed his career. The colonel faced the prospect of resigning his commission just before qualifying for his retirement pension and benefits or facing court-martial, which could have brought him eight years in a military prison.
The colonel acknowledged he had not followed “proper procedures” but insisted that he had acted as he did to protect his men. He stated at his hearing that he would “walk through hell with a gasoline can in my hand to protect any one of them, if need be.”
Puckett leapt to his defense. In a memorable exchange with the military authorities he warned them of the rising anger of the American people and compelled them to back down. In the end Colonel West received a letter of reprimand from General Odierno and was allowed to retire from the Army with his pension and rank intact. In turn, people both within and outside the military congratulated Neal Puckett. And when Petty Officer Matthew McCabe walked through his office door in Alexandria, Virginia, Puckett could not help but draw sharp comparisons between the two cases, the main difference being that Matt had done nothing wrong in the first place.
Major General Odierno, promoted under Bill Clinton, had
plainly shot himself in both feet, not the least of which for arousing enormous public fury at the cruel way he had tried to force an outstanding officer to forfeit his entire pension when he was just seventy-two hours short of qualifying.
The general should, of course, have just let the clock run out over three days and then quietly sent the colonel home with a letter of reprimand, with his pension for a lifetime of service intact. Instead, however, in the interests of “human rights,” and “being seen by the terrorists to be fair,” he had caused near-riot conditions among the right-wing media and placed the military in a most unfavorable, utterly heartless light.
So far as Neal Puckett could see, this Major General Charles Cleveland was well on his way to doing precisely the same thing if he wasn’t very careful.
7
SOUND AND FURY IN CONGRESS
These SEALs are exceptional, having captured a terrorist who not only killed Americans, but also maimed and mutilated their bodies. We believe that prosecution of the SEALs will have a negative impact on others in the military, who risk their lives in dangerous, often ambiguous situations.
—Congressional petition
The world’s largest naval station occupies more than seven miles of pier and wharf all along the Hampton Roads Peninsula in Norfolk, Virginia, home to some seventy-five US fighting ships and their support.
Given that each one of the two or three gigantic aircraft carriers on the jetties contains at least two thousand telephones, communication in this secretive enclave of the US Defense Department is, shall we say, awesomely effective.
Marginally swifter, however, is the ship-to-shore, jetty-to-quarterdeck, harbor launch-to-ops room, and bush telegraph of rumor, report, buzz, and speculation. There are other places in the world with standard rumor operations and half-witted publications to project the type of drivel that Hollywood show business adores, but when even a whisper of something truly major breaks out in the US military, that sprawling Norfolk Navy yard is atomic by comparison. And if you really want to set the lines of communication vibrating, just start arresting US Navy SEALs who have just returned from a highly dangerous and successful combat mission.
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 19
