Matt’s JAG wrote at the end of the document that if the government refused to produce any of the above-listed witnesses, then the defense respectfully requests detailed written statement of the reasons for refusal so as “to insure complete litigation of the issue.”
He also asserted that witness production requests were likely to continue.
Of the eleven men prepared to stand in a military courtroom and speak on Matt’s behalf, there was a decorated naval commander plus four more serving Navy SEAL officers, a senior chief, a platoon chief, and a couple of leading petty officers—the kind of lineup one might have expected if General MacArthur had been court-martialed for whacking the murderous Japanese Admiral Yamamoto in the gut in 1945.
As legal ammunition for an extremely tenuous military trial, that was most certainly impressive in the extreme, for it required hugely respected servicemen to put their own treasured reputations on the line for a well-liked and trusted member of Team 10.
One might reasonably have thought this would have set off about a thousand alarm bells ringing in the Pentagon. But apparently not. There was a kind of angry silence. And the great wheels of “justice” rolled ever onward.
8
THE OUTRAGE OF THE AMERICAN PUBLIC
A destruction of brave men’s lives was right now in the forefront. It was in the unfathomable malice being directed at Matt, Jon, and Sam. And for what? Was this political? Was the military being ordered to court-martial these men?
Thursday, December 10, 2009, was a critical day in the court-martial proceedings. It was almost five weeks since the defense counselors had filed their formal request for discovery, those sworn legal statements made by all the SEALs who had been involved with Objective Amber and, for that matter, anyone else who had been near the holding cell where Al-Isawi was held prisoner.
Two weeks had passed since the government had filed written response on the subject of discovery, warning that the documents may be classified but assuring the lawyers “that a ‘review’ was being expeditiously conducted at that time to determine classification status of any information appertaining to the case.”
They checked. And perhaps in response to the burgeoning public uproar, on that Thursday the government was now forced to make a decision: to proceed or not to proceed against these American fighting men, each one of whom wore the flag of the United States both on his battle dress and on his heart.
To proceed would be to expose them both to the public and to the United States’ enemies. For the enemy to recognize these men is plainly dangerous for them.
And now the military had a critical decision to make, because to proceed with these courts-martial would thrust the names of the three accused into the public domain. Worse yet, their names would practically go up in lights.
Obviously all combat SEALs loathe and detest any form of publicity. They hope and pray that when their days in the frontline of US offensive forces are finally over, they will be free to live their lives in peace and privacy with their families. God knows that if anyone deserves this, they do.
But the situation surrounding Matt, Jon, and Sam was one of the worst ever. So far as America’s Middle Eastern enemies were concerned, these were the men who had grabbed the legendary Al-Isawi and then apparently beaten him while he was handcuffed and defenseless. If these turbaned gangsters could knock down the World Trade Center, they might have a passing interest in the identities of the men who grabbed the Butcher.
This was the dilemma that the US government and its military high command faced. And that Thursday afternoon found many people who occupy many high places pondering whether to release to the defense lawyers the SEALs’ handwritten statements, knowing it would effectively throw the three SEALs into the public wilderness, thereby destroying their God-given anonymity.
Lieutenant Paul Threatt, who was concerned only with the SEAL combat warriors’ reputations and safety, thought privately: This could end today. I don’t think the Pentagon is going to allow this to happen.
These were his seriously troubling thoughts. Threatt’s business involved the lives of these individuals—their sorrows and fears, their characters and their honesty. He was massively concerned about the welfare of his client, Jon Keefe, and no less so about Matt and Sam. He believed the Navy had an obligation to protect their identities, specifically from sly and cunning Al-Qaeda killers.
“Nothing the US Navy did could possibly justify revealing precisely who the men were—the combat warriors who grabbed the Butcher,” he said months later. “I was certain in my own mind the military too would be fully aware of that and drop the charges.”
But they did not. And Threatt never quite forgave them for that. The following afternoon, Friday, December 11, presumably after many hours of thought and discussion, the Navy elected to let matters go forward. They confirmed the classification review had been completed and had the newly unclassified documents hand carried to Greg McCormack’s law offices in Virginia Beach.
This was such a drastic step, allowing for the first time the innermost core of the proceedings to be seen beyond the frontiers of the US military. The die was surely cast. By releasing this information, the government had thus decided to come against Matt, Jon, and Sam with the full and majestic power of military law—to hell with the consequences.
And they had done so with the full knowledge that a chain of high-risk events would now be set in motion. This also meant that now, at last, the defense lawyers were able to pore long and hard over the written statement made by the young master-at-arms, Brian Westinson.
And before the end of that day the growing battalion of attorneys lined up for Matt, Jon, and Sam were preparing to load weapons to start blowing gaping holes in Brian’s wavering recollections of that early September morning in the Camp Schwedler holding cell.
To most of the experienced legal minds it was inconceivable that the military would have condoned this. Uniformed US commanders do not take plain and obvious risks. That level of caution is ingrained into their DNA, particularly when dealing with the lives of men under their command.
And if ever the destruction of brave men’s lives was right in the forefront, it was right now—in the unfathomable malice being directed at Matt, Jon, and Sam. And for what? Was this political? Was the military being ordered to court-martial these men?
What other explanation was there? Except that politicians, occupying the great offices of state not to mention chauffeured limousines and tables at the most expensive restaurants on earth, must have been calling the shots. Were they quietly ordering the ruthless sacrifice of the three SEALs in order to pave the way to a better political dialogue with the Middle East?
Perhaps they were. And a nationwide quasi-demonstration of US fairness to its prisoners was all very fine. Unless you happened to be Matt, Jon, or Sam, all of whom stood to be ruined if found guilty of prisoner abuse, failure of duty, lying, scheming, plotting, and God knows what else.
And at this point everyone remotely involved in the project to protect the three SEALs was, in a word, confounded. The lawyers began to find discrepancies in Westinson’s statements, and many, many SEALs were declaring they did not see anyone attack Al-Isawi. In their opinion no one had hit Al-Isawi; indeed, none of them would dream of hitting any prisoner—never had, never would. And some of them had been with Matthew McCabe and were prepared to stand up in court and swear to God he’d never lifted a finger against the jihadist.
Over in the great hall of the Capitol, Dan Burton was nothing short of mystified. In his view it was impossible that a Major General would dare to write a letter suggesting that the elected Congress of the United States did not really know what it was talking about, that it was relying on inaccurate press reports, and to follow all of this with a short, rather lofty lecture on the general’s perceptions of fact and duty.
The thought was inescapable: someone of immense authority may have been standing in the general’s corner. There were some seriously heavyweight signatures on
that congressional protest, and they had been dismissed out of hand. The question was: Who had done the dismissing? For in this wildly inflammatory instance it was surely a far superior being than a two-star Army general based way down on the west coast of Florida.
This had become an issue of momentous importance, with a ripple effect currently lapping at the Pentagon’s E-Ring, where the most senior officials sat, and in the highest echelons of the US media. Everyone was talking about it. The courts-martial of the three SEALs had made the front pages of influential publications in America, all of them indignant, most of them incredulous.
The very reputation of the US Armed Services was being kicked around. The military could not possibly have wished this to continue, unless they were as dumb as their detractors suggested. Which, incidentally, they most certainly were not.
Burton, who was only just on the north side of outraged at the treatment Matt, Jon, and Sam received, decided to give himself a cooling-off period through the Christmas vacation before drafting a reply to the major general. He knew he had to be calm and collected, statesmanlike. But with every passing hour he was handed massive evidence that the country was with him.
The Indiana congressman launched a website along the same lines as that of Graham Ware’s SupporttheSEALs.org, and in just a couple of weeks it had thirty thousand followers. Responses were cascading in at more than two thousand a day, every one of them appalled at the way three Navy SEALs, all decorated in combat, were being treated.
And the avalanche of press coverage was by no means restricted to tabloids and sensation-seeking daily publications. This had already hit the pages of the New York Times, the Washington Post, the New York Daily News, and the Boston Globe, not to mention the 174-year-old Toledo Blade and the almost-as-venerable Cleveland Daily Gleaner (Matt McCabe’s hometown area in Ohio). Among the national wire services the members of the Associated Press were huge supporters of the accused men.
Among the news organizations, all of which informed influential minds across the United States, were Cybercast News Service (CNS) based in Virginia, a conservative website that was swiftly on top of the story, detailing the two congressional letters to Robert Gates and General Cleveland, with particular emphasis on the opinions of Congressman Rob Wittman, who represented Jon Keefe’s hometown area of Yorktown, Virginia.
CNS quoted Mr. Wittman thus: “One of these SEALs is a constituent of mine, and I and many of my colleagues are concerned with the message this sends to our soldiers, sailors and airmen, who serve in harm’s way every day. They risk their lives in dangerous and uncertain situations—I am eagerly awaiting the Secretary of Defense’s response to the letter I signed in defense of these three SEALs ... I do not believe the prosecution of these men is warranted.”
The Navy Times was another highly regarded publication that plainly disapproved of the courts-martial. A weekly newspaper also based in Virginia, it provides information and analysis to active, reserve, and retired US Navy personnel, including distinguished former commanding officers.
And the editorial team was swiftly into its stride the moment the story broke, immediately going to Matthew’s lawyer, the esteemed Neal Puckett. He told them, “The SEALs are being tried, essentially, for allegedly giving the detainee a ‘punch in the gut.’
“They are all together, and they all maintain they are innocent of the charges,” he said, before adding, “In a combat environment the handling of a detainee ... these things happen all the time, and can easily be justified as maintaining control.”
These military Times newspapers are the most widely purchased publications in all Army and Air Force Exchange Service (AAFES) shops on US military bases worldwide. A measure of the enormous size of this franchise is, perhaps, its forty-five thousand employees and thirty-one hundred shops in more than thirty countries.
They run the largest military-base post office in the world in Fort Campbell, Kentucky, and in the US base at Ramstein, Germany, they run probably the largest store on earth. In any one of them the Times military newspapers easily outsell national magazines like People and Time.
This adds up to a spectacularly influential news distribution operation constantly promoting the editorial opinion that the US military really ought to think again on this one. And that was especially true of the Navy Times, not only because of its circulation of fifty-five thousand but also because of precisely who that number may include.
Particularly as the largest newspaper publisher in the United States, Gannett Company Inc. of Tysons Corner, Virginia, owns the Navy Times. They also own USA Today, USA Weekend, the Arizona Republic, the Indianapolis Star, the Cincinnati Enquirer, the Tennessean, the Courier-Journal (Louisville, Kentucky), the Democrat and Chronicle (Rochester, New York), and the Detroit Free Press, not to mention twenty-three television stations—NBC’s largest group owner of affiliates.
And on Christmas Eve another deep, dark conservative voice came crashing into the fray. Jed Babbin, editor of the revered conservative weekly Human Events, which was for years President Reagan’s favorite reading, let fly with both barrels when he unleashed a blistering editorial and began a Save-the-SEALs petition that pulled in ninety thousand supporters in the first week.
Babbin, once President George H. W. Bush’s deputy undersecretary of defense, forwarded his petition directly to the Pentagon, to Secretary Gates on behalf of Human Events.
Excerpts included:
We at Human Events hereby request your personal intervention to dismiss the charges against the SEALs ... they captured and detained Ahmad Hashim Abd Al-Isawi, one of the most barbaric and dangerous terrorists in Iraq. ... You are next in line, above General Petraeus in the chain of command ... you can, legally, intervene ... and direct they be returned to duty. We respectfully request that you do so forthwith. To stake the honor and fighting future of these three men ... is manifestly a gross injustice.
Right before Christmas and with almost gleeful abandon, another widely respected conservative publication, the American Spectator, joined the fight. This important right-wing monthly, which has published authors such as Tom Wolfe, P. J. O’Rourke, George Will, Patrick J. Buchanan, and the late Malcolm Muggeridge, launched forth with an editorial by the magazine’s eminently respected founder and editor, R. Emmett Tyrrell Jr., under this headline:
THE CURRENT CRISIS
WAR IS HELL—NOT LITIGATION
Among the carefully worded prose of a very fine writer were the following statements:
Are these trials really necessary—it is, I think, pretty well established that terrorists do not always tell the truth. General Cleveland had it in his power to tell lower level commanders simply to avoid bloody lips in future—but he set in motion a destructive process. Secretary Gates can end this abuse of power by simply doing what Cleveland failed to do.
Let us get these courts-martial canceled. The guy who should be appearing in the dock is Ahmad Hashim Abd Al-Isawi, whose lip has doubtless healed.
The American Spectator, when roused, has earned the reputation of a doughty fighter. Its controversial article in 1994 concerning Clinton-accuser Paula Jones was the basis for a sexual harassment lawsuit that started the chain of events resulting in President Clinton’s impeachment. Why in the world the military was happy to cross swords with so many irate and distinguished wordsmiths will, perhaps, remain forever a mystery.
Meanwhile the furor in the US media continued. The fourth-largest circulation newspaper in the United States, the New York Daily News (a half-million a day), thundered into print with a damning editorial headlined,
SAVE THESE SEALS: NAVY COMMANDOES RATE HONORS,
NOT COURTS-MARTIAL FOR TERROR ARRESTS
And this newspaper—America’s first tabloid—is enormously respected in New York, where its old art deco skyscraper headquarters, the Daily News Building, still towers nearly five hundred feet above East 42nd Street. Beneath the black glass domed ceiling of the lobby stands the world’s largest indoor globe.
Its opening tirade, concerning Matt, Jon and Sam, shook the place to its granite foundations. Anyone who did not know about the three SEALs before the end of the year, 2009, most certainly did now. The Daily News editorial dripped with outrage and scorn toward the military.
They opened with a demand:
Defense Secretary Robert Gates must intervene to prevent an injustice that turns the world on its head.
It continued in fighting mode:
How can those who opened an official investigation of this trifling matter sleep at night? ... It is bad enough that these men have been subjected to the indignity of formal criminal charges. Even an acquittal at trial would be a travesty. Why must they answer the charges of a terrorist?
It is perhaps worth noting that the Daily News did not get into the issue of “guilty or not guilty.” They wrote the editorial assuming the worst-case scenario:
EVEN IF THEY WERE GUILTY: SO WHAT?
And that was the message they trumpeted to their estimated 2.5 million readers all over the city. On that cold winter weekend, in every one of New York’s five boroughs, the issue of these three Navy SEALs eclipsed all others. In fact, the courts-martial seemed for a while to be a New York story, even though it was rooted more decisively in Washington, DC.
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 23
