2. At a fundraiser in Scottsdale, Arizona, Graham Ware’s organization to support the SEALs raised almost $20,000 for the SEALs’ defense fund.
3. In case anyone thought that Matt and Jon had “tricked” their first polygraph, they both took a new supercharged lie-detector test—not military, but nonetheless the last word in polygraph technology, said to be the only modern test ever devised—virtually unbeatable.
The test was administered by the Virginia Polygraph Service (VPS), located, appropriately, in Fairfax County, home of the one man for whom a polygraph would have been strictly irrelevant, George Washington. The VPS designed a very specific test, made especially to show whether Matt whacked Al-Isawi.
One of the finest lie-detector men in the country, Jerry F. Shockley, a twenty-one-year veteran of the Alexandria Police Department, was in command. A man with more than forty separate qualifications in technique and advanced developments plus innumerable awards from the Virginia/Maryland areas, the former detective lieutenant concentrated on two no-nonsense questions:
1. Did you strike Ahmad Al-Isawi in the midsection?
2. Last September 1 did you strike Ahmad Al-Isawi in the midsection with your fist?
To both of these Matthew McCabe answered a blunt, firm “No.” And in conclusion Detective Lieutenant Shockley wrote,
The above questions were asked on three polygrams utilizing the Backster Zone Comparison Test technique. At the conclusion of the examination there were no significant physiological responses. It is my professional opinion that Mr. McCabe was being truthful when he answered those questions.
—Jerry F. Shockley
(March 17, 2010)
SO2 Keefe, who was equally as open and straightforward as Matt had been, had a slightly more torrid time at the hands of the lie-detector team. He had already taken and passed two nonofficial tests, but this was a modern power-polygraph.
They fitted electronic wires all over Jon and placed him in a chair with special butt pads and motion sensors, never telling him that one sharp clenching of the butt signified a bare-faced lie. They told him to sit still, restricting all movement. Thus installed, he moved only his eyeballs, scanning his interrogation room, looking up at the high one-way glass windows through which he knew a full squadron of agents and “detectives” were observing him.
One of his only two comforts was the presence of his two lawyers. Paul and Greg were right back there somewhere with their own window, watching for the slightest hint of unfair tactics. The other was the fact that he never told lies. Whichever way anyone looked at this scenario, it was one hell of an expensive way to establish something that obvious.
Afterward Jon’s lawyers felt polygraph analysts were treating him with suspicion. In the NCIS test he was polygraphed three times for two hours, and each time was accused of trying to trick the machine.
“They told me I was trying to slow down my heart!” he remembers. “Accused me of being very calm! Told me I was trying to beat the system. I had no idea what they wanted from me. I just gave them the complete truth in answer to their questions. How could there possibly be any suggestion of a lie?”
In the end they sent Jonathan’s results to the FBI in Washington. One opinion stated he was trying to control his breathing, and one paragraph claimed he was taking only four breaths a minute instead of the average human rate of thirteen. “It was a good thing I didn’t slow down my heart at the same time,” he said. “I’d probably have dropped dead right there next to the polygraph.”
The final conclusion caused the military to infer they could not trust the results. Nonetheless, the officer gave the same conclusion as the one for Matt: “It is my professional opinion, that Mr. Keefe was being truthful when he answered those questions.”
The findings of the ex-Virginia policeman arrived in time for Graham Ware’s rally for the SEALs in Scottsdale. Matt attended, and the lie-detector exonerations were announced eight times by elected Republican Congressman John Shadegg, the lawyer son of Arizona’s Steve Shadegg, who managed Barry Goldwater’s 1952 and 1958 US Senate campaigns and organized the Draft Goldwater Movement in the 1964 presidential campaign.
Congressman Shadegg, former chairman of the Republican Study Committee, like so many other SEAL supporters, was a distinguished politician. And he spoke for all three of the accused men, asserting that the American public must know the findings of those lie-detector tests.
He also told the large gathering: “The prosecution of Matthew, Jon, and Sam sends the most terrible message to young men and women across our nation who may be thinking about serving their country, that we would second-guess them in the performance of their duties. I believe the charges should not have been brought, and they should be dismissed.
“This whole incident is an outrage!” shouted the Arizona congressman to the cheering crowd. “Rather than being charged, these young men should be thanked.”
In the annals of these forthcoming, drastically expensive trials, March will go down as a pivotal month—the days when the military judge made plain his intolerance of certain prosecution tactics, when the revelations of the killer lie-detection system were announced, when the prosecution realized that there were important members of Team 10 who would flatly refute the allegations of the government’s star witness not to mention those of the terrorist himself and, of course, that the laws of the United States would not allow them to be bullied and frightened out of making proper courtroom appearances.
March was the month when it was settled that Jon and Sam would be court-martialed separately in Baghdad in late April. Matt’s trial would be a few weeks later in Norfolk, without Al-Isawi being present. His attorney, Neal Puckett, had agreed the terrorist need not be called.
But March heralded the emergence of a new and significant force in the trial of the senior petty officer Sam Gonzales of Blue Island, Chicago. Sam was a dedicated Special Forces warrior who harbored only one wish: to prove his innocence and then to continue climbing the ladder of command in the Teams. This new fighting force—lawyer Guy Reschenthaler—had, as the weeks went by, developed a determined devotion to Sam’s cause.
Reschenthaler was only twenty-seven and had just returned from his six-month tour in Iraq, where he had spent most of his time in the middle of knock-down-drag-out courtroom battles in which the authorities were trying to jail or execute some of the most dangerous terrorists in the Middle East.
And now, stranded in the Navy’s legal department, he was just facing up to a new career—defending sailors, Marines, and Coast Guardsmen on charges of DUIs, theft, and sexual assault. For the former lion of the Baghdad prosecutor’s desk, this stacked up especially drearily against the desert dramas of beheadings, mass production of illegal explosive devices, mass murder, and acts of terrorism.
Perhaps there were those who sensed that Reschenthaler was becoming steadily more bored by his new life, despite many courtroom appearances. But someone, somewhere in the Navy Legal Service Office decided he had better get into a case that would spark his interest and talent.
When he was added to the defense team, it had already included one member of the JAG corps, Lieutenant Commander Andrew Carmichael, who was working with the other defense attorney, civilian lawyer Monica Lombardi, out of her private practice in Virginia Beach. The case file was presented to Reschenthaler, containing all the known details about the three SEALs accused of abusing a star detainee plus lying, dereliction of duty, and false statements.
“Yessir,” muttered the Pittsburgh-born Reschenthaler to himself, “I could get seriously into this.”
Thus, the heavily built, slightly bored graduate of the renowned Duquesne University School of Law became embroiled in one of the most high-profile courts-martial in recent memory—and at a huge cost.
“Resch,” as he was inevitably known, shed a penetrating light on Sam’s character when he recalled the moment they first met. Armed with his case brief, the young lawyer called his new client over at the SEAL base and says he spoke
to him with unrestrained awe. “He was a Navy SEAL, right? And around here that’s about the closest anyone gets to being a superhero.”
Later that day the phone rang, and the front desk told him: “Lieutenant, I have SO1 Gonzales here to see you.”
Resch recalls giving his shirt an extra tuck, sharpening himself up, and walking down to the waiting room, where he pushed open the door and said, “Mr. Gonzales?”
At which point a short muscular man stood up and put down his newspaper. He was not in uniform and wore a long-sleeve shirt with a navy pullover, jeans, and old flip-flops. He grinned, offered his hand, and said, “Hi. Just call me Sam, Lieutenant.”
They walked back to the office, where the automatic lights had already gone out with politically correct efficiency.
“You don’t need to turn ’em on, sir,” said Sam, in a low voice. “I’m a SEAL, and we’re used to working in the dark. Just leave ’em off, Lieutenant. I like it better this way.”
The lawyer already knew the SEAL Teams operated permanently on first-name terms, and he asked quietly for the petty officer to relate his side of the prisoner-abuse story.
But at this point he did decide not to tell the SEAL this was his first true criminal case in the United States, unless he counted a pre-Iraq trial in which the even younger Resch defended a sailor who managed to get drunk and passed out at the wheel in a Burger King drive-through. On reflection he also decided not to mention that he lost the case by offering some outlandish excuse that the guy’s psoriasis medication was to blame!
“No problem, Lieutenant.” replied Sam. “Because it’s really simple. Look, we rolled this guy up, took good care to make sure nothing happened to him in the helo on the way home. Then we put him in the box—that’s the big shipping container we have rigged to temporarily hold a captured target.
“Next morning the guy spits blood and says the Americans did it. The general wanted us to take a slap on the wrist with a General’s Mast nonjudicial punishment. But that sounds like a ‘guilty’ to us. And we said, ‘No, the hell with that.’ And now we’re all here.”
It was an instant alert for Lieutenant Resch: this sudden switch from the Navy to the Army, the slightly jarring sound of the word “general” as opposed to lieutenant commander or captain. And right there Resch tuned in to an issue: the term Admiral’s Mast, meaning an appearance on a disciplinary matter before a commanding admiral, had its entire roots and ethos in the Navy.
Over the years the term had been used to apply to the Army, a General’s Mast. But to the legal mind there was a difference. In the Navy an Admiral’s Mast is deadly serious, going back to the days of sail, when some critical mistake or careless action might have endangered the ship.
In the Army, however, it’s somehow considered in a lighter mode, signifying a slap on the wrist and finished. But these SEALs were not in the Army. They were in the Navy, and the very term Admiral’s Mast signified the admission of a serious crime. They could not face that. Right here there were crossed wires, and Lieutenant Resch was the first lawyer to tune in, and he was sitting right across from the senior accused SEAL.
In Reschenthaler’s opinion this switch from naval discipline, this handing over of the prosecutors’ torch to the Army was a very significant occurrence. The two services are related but different. And there is ageless folklore involved in both. The Navy marched to the beat of a sometimes-stricter drum.
And in this case the dogged independence of the SEALs served only to cause the Army commanders to dig in to their entrenched positions ever deeper. Sometimes the SEALs’ wills seemed to irritate the Army authorities unnecessarily. Perhaps the Army should never stand in charge of judgments that involve Navy personnel.
There were a thousand dichotomies in the air, and Reschenthaler, like any halfway-decent defense lawyer, needed to clarify in his own mind the guilt of the accused SEALs. And the question always rears its head: Did they do this? Or is it just circumstances ganging up on them?
It took him a very short time to decide that it was impossible for Sam Gonzales to have stood by and then deliberately lie about the issue. SEALs of his experience simply do not behave like that. Sam was an ambitious man. He had received a Bronze Star for valor in combat. Would he put his entire career on the line and risk standing in a court-martial telling a pack of lies?
Couldn’t happen, was Reschenthaler’s opinion. And the lawyer’s father, a Pittsburgh doctor, supported him in that. His father interpreted the slightest sign of doubt crossing his son’s mind as strictly un-American.
“You gotta be kidding me, Guy,” he would say when his son started thinking about the case from the government’s point of view. “That Iraqi was a murderer, a terrorist and a threat to society, and even if it was true our guys punched him, he deserved it. You better get your head screwed on straight.”
The fact that Reschenthaler’s analysis came from careful legal examination of the facts and a natural tendency toward playing the devil’s advocate cut no ice with Reschenthaler Senior. And Guy still finds it interesting that his father’s views entirely echoed those of the vast majority of the American public.
Meanwhile a close camaraderie developed between Resch and Sam, who came to the legal office sometimes just to talk. The Navy had all three SEALs in some kind of a holding pattern. Every morning they checked into Team 10, and every morning they were dismissed and sent home. Sam found time to lay an entire hardwood floor at his home.
Exasperated and a little scared of the great unknown that lay ahead, he settled into a routine of brutally hard workouts and home improvements—a considerable waste of the million bucks it cost the US government to develop him into one of the world’s elite fighting troops.
And the more time the young lawyer spent with him, the more certain he was that Sam could not possibly have seen anyone punch the terrorist or conspired to cover it up. Sam had an aura of naval professionalism about him, and this cried out to Resch that the government had this one all wrong.
Willingly, Reschenthaler took on more and more of the workload for the team, particularly regarding the coming motion being prepared to support the CONFRONTATION CLAUSE. Hour after hour he combed through the discovery documents, telephoned potential witnesses, and researched for the legal team’s motions that might end this nightmare for the tough, rather ingenuous SEAL leader.
And the situation pleased everyone. Monica Lombardi was very busy building her private practice, and Drew Carmichael was loaded down with command leadership responsibilities. The fact that young Reschenthaler was prepared to work eighteen-hour days was a blessing.
And this gave him time to make the CONFRONTATION CLAUSE motion his pride and joy. As the junior defense attorney, he needed to tread fast, firmly, and carefully, skills long ago perfected by the hefty former Thomas Jefferson High School wrestler, whose Duquesne Law School was situated just a few hundred yards from the Pittsburgh Steeler’s end zone along the wide Monongahela River.
Although built like an M1 Abrams tank, at five feet seven inches, Reschenthaler was never destined to join the Rooney family’s black-and-gold warriors up there at the confluence with the Allegheny River, combat was still his instinct. And the courtroom suited him perfectly, especially the cut-and-thrust of criminal litigation.
And he picked up the CONFRONTATION CLAUSE motion and researched it as though he were on his way to the Supreme Court rather than a court-martial. He had agonized over every word and nuance. In Reschenthaler’s mind this was the key to the case. His youthful optimism told him that victory was not only essential; victory might also blow this case right out of the water. If his team could win Sam’s right to face his accuser but the government would not bring Al-Isawi to the United States, it had to be all over, right? No court-martial.
Well, nearly. Before a courtroom packed with journalists and spectators, Lombardi, the most experienced of the defense team, was armed with a motion largely written by Reschenthaler but also packed with skilled and experienced opinions written
by Lombardi herself as well as Drew Carmichael.
To Reschenthaler it felt a bit like his own work, but he knew that it was a team effort and that Sam’s two more senior lawyers had made a major and mature contribution. All the necessary research, pertinent precedents, and solid argument were there for Lombardi. And everyone remembers the moment. With Sam sitting tense and white-faced between her and Reschenthaler, Lombardi stepped up and began: “May it please the court ...”
What followed was a masterly presentation of the newish law to which the Supreme Court had delivered such a crystal-clear precedent, articulating not so much a bedrock principle of the Anglo-American judicial system but a cry from the very heart of the gods of law—that every defendant has the right to face his accuser.
Lombardi did not care whether Al-Isawi was in Baghdad or Timbuktu, and she did not care how difficult it would be for the US authorities to get him to the Norfolk Naval Base. She coldly pointed out that according to Antonin Scalia, associate justice of the Supreme Court, the court-martial of Sam Gonzales and the other two SEALs could not proceed legally if the terrorist was not in attendance.
Her case was unstoppable. And a few days later the judgment of the military court was handed down: victory for the defense. The Supreme Court’s CRAWFORD decision had mandated that Sam and his codefendants, Matt and Jon, had the constitutional right to face Al-Isawi in court.
“Case over,” muttered Reschenthaler. “Because there’s no way they’ll bring this crazed jihadist into a US Navy yard.”
Right, but wrong. Paul Threatt came visiting, and he chuckled in his deep southern accent: “You guys gotta hear this one. I just found out we’re all flying to Baghdad!” And they were going to hear Al-Isawi’s testimony directly.
“WHAT?!” Carmichael and Reschenthaler exclaimed in unison, astounded at being virtually ordered to spend time in a heavily guarded courtroom in the most dangerous part of the most deadly city in the most lethal country in the Middle East.
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 28
