“They’re just about to make it clear,” said Threatt. “if we want a piece of Hashim, they’re gonna fly us to Baghdad. I don’t know what’s going on, but our SEALs must have really pissed off some people in DC.”
Threatt was not crazy about it either. And neither was the lead defense attorney for Jon, Greg McCormack, who in many ways had only himself to blame. For it was he, McCormack, who had insisted that Al-Isawi was a crucial witness and that there could be no sworn deposition used in court in lieu of the terrorist’s live testimony.
McCormack had taken a firm position against any such suggestion—he was adamant that Al-Isawi was a necessary witness and that the trial should not proceed without his live, personal testimony in court that would allow members of the jury to see him and ask questions of him during the trial.
The argument was too good. The government’s lawyers began to splutter, and McCormack won the day. He was nonetheless taken aback when the judge suddenly resolved the issue by ordering the trials of Jon and Sam to be moved to Iraq, where the terrorist prisoner was now in Iraqi custody.
“I admit I was not real thrilled about it,” said the lawyer. “Iraq was a very dangerous place. And because of this, I had for several years refused multiple cases that were taking place over there. And now here I was, heading to Baghdad for this trial.”
Nothing, however, would have persuaded Jon’s attorney to withdraw from the case. He believed in the big SEAL’s innocence with missionary zeal. And in a series of dazzling legal maneuvers, he had succeeded in removing two of the three charges against his client.
The last triumph took place in the courtroom in Norfolk before Judge Carlos in late March. And right here, finally, the special agent who had mercilessly conducted the alleged abuse investigation out of Ramadi came face to face with someone who could answer back. The agent, an ex-sheriff from South Carolina and an ex-FBI agent, had been especially antagonistic at Jon’s interrogation, and he was still was no pushover.
But McCormack had filed a motion to suppress, and he had a critical point of law to prove, and this soon left the agent stuttering for words. In the end the attorney from Virginia Beach forced him to admit he had failed to read SO2 Keefe his proper rights when he had him in that room at Ramadi.
The issue was Jon’s second statement, which he was coerced into making despite the existence of the first. In these cases it is mandatory upon the government to inform the accused of the “cleansing warning,” when he must be told that that first statement will not be used against him in a future court-martial. The special agent had issued no such warning, and McCormack left him swinging in the wind.
Judge Carlos granted the motion, threw out the charge involving Article 107, that Jon, asserting that he did not see anyone abuse or mistreat Al-Isawi, had made a “totally false” statement that was known by Jon to be so false. The judge’s ruling was firm: There was “no cleansing warning”—and that made it unfair and against military law. Goodnight Vienna.
“Right at that moment I knew I had a chance,” says Jon now. “Greg was awesome. I’d always been told I had one heck of an attorney. And now I’d seen it firsthand, right there in that courtroom. He was right up there, fighting for me, arguing, acting like the charge against me was a crime against humanity.
“I remember sitting there watching him and thinking, ‘Jesus! I’m glad he’s on my side.’”
When McCormack was all done with the charge that Jon had deliberately made a falsified statement and Judge Carlos was all done with the accusation he would not allow on a point of law, all that was left was the charge that Jon had somehow committed a “dereliction of duty.”
Above all other things McCormack understood how much Jon was counting on him. So despite Baghdad bombs, high explosives on desert roads, suicide attacks, and ambushes, he would have walked barefoot to Iraq to protect Jon.
And by now he had become a genuine expert on the case. He had interviewed Westinson in what was probably the most demanding two hours and twenty minutes of the young guard’s life. McCormack had probed, demanded, questioned, and reminded as he pieced together all that had happened in the half-light of Camp Schwedler in the hours right before the sun had risen above the eastern horizon of the Syrian Desert on that ill-starred September morning.
And while McCormack, Puckett, Threatt, Reschenthaler, and Lombardi were all pulling the legal documents together, all three SEALs continued in the no man’s land into which they had been cast. Almost daily they attended their lawyers’ offices, with Matt driving to Washington and the others to Virginia Beach.
Sometimes the cases seemed to swing their way; other times the obdurate mind-set of the government’s prosecutors made life very tense. The SEALs were uncertain how soon they would have to sell their homes to help pay for their counsel. And they all found it impossible to accept that they were no longer active members of SEAL Team 10 and must soon face living in quite badly reduced circumstances.
One particular visit to McCormack’s office stands out in Jon’s mind. It was a midweek afternoon, and he arrived to be introduced to three more members of the prosecution team, none of whom he had ever seen before.
“I do not remember the precise words they used,” he says now. “But the meaning was as precise and focused as anything could be. They told me, ‘We want to cut a deal with you.’”
At this Jon looked blank. And then they told him that if he would rat on Sam and Matt, and say he saw Matt hit the terrorist, then he would be given “a clean slate and sent on his way.”
The SEAL breacher tried to gather his thoughts as he wondered, Who are these guys? His mind raced, and then he looked at the silent Greg, sitting behind his desk.
Jon just blurted out: “This is a total waste of time.”
McCormack spoke slowly and said, “This is your decision. If you want to say ‘Okay’ and rat on your buddies, then I will also make you a promise ... you will not have to pay me one dollar.” And he pointed to the legal documents, which the new prosecutors had placed on the desk, and added, “Sign those, and it’s over.”
SO2 Keefe, Echo Platoon’s heavyweight combat operator, said nothing. And the prosecutors’ lead man further extended the hand of quasi-friendship. “Jon,” he said, “you can move to the West Coast, far away, in a place where you would not be hated for ratting on your buddies.”
“This guy had to be either dumb or insane,” recalled Jon. “But he obviously had no idea what it meant to be a combat member of a SEAL Team. I thought then of telling him I would allow someone to cut off my right arm before I would say one word against any of them. And I believe they would have done the same for me.
“Was this guy nuts?” he went on. “If I, or any other SEAL, ratted on a teammate, he would be hated from one coast to the other and all points in between. Besides, they were asking me to lie. Matt never hit anyone.”
SO2 Keefe continued with his grim, blank stare, slowly allowing it to evolve into one of pure contempt. And he still relives the moment, when representatives of the US government “asked me to lie about my buddies who’d done nothing wrong.”
He just stood there. And then he said, “No.”
The prosecutors picked up their papers and left. It had lasted all of ten minutes. But in Jon Keefe’s mind it was an everlasting ten minutes.
McCormack was, of course, not surprised. He had been obliged to act impartially, and he had done so, evenhanded to the end. But he later admitted, “I could have told them it was about seven billion to one against Jon betraying Matt and Sam. But I had to let it play out. It was such a monumental offer, I knew the decision had to be his. I also knew what that decision would be.
“If they’d offered Jon Keefe all the world, he’d still have turned them down. You had to know him well to fully appreciate what kind of a guy he was.”
Jon himself remembers leaving McCormack’s office and thanking God for the presence of the tough, relentless attorney in his corner. McCormack had served in the US Army as a military p
rosecutor and knew what it would take to win this case—three decades of experience had taught him that.
But Jon was just learning, though he’d already experienced the sheer weight and numbers of men who were against him. He never again met or even saw the three negotiators who had visited McCormack’s office, “which I guess showed they must have an unlimited supply of people working to convict us,” he said.
“I knew I could count on Greg. But those new guys, I didn’t know where they came from. All I knew was the Army was leveling the charges, and they had naval JAGs to make sure they got it done.
“I guess I knew, from here on, it was me, Matt, and Sam—us against the United States military.”
10
DENIED IN FAVOR OF THE DEFENSE
The major first reported the alleged beating to the chain of command. Now here was this enormous group of people, seven thousand miles from home, to fight a court-martial—“I guess he had a lot to answer for. If he’d shut up, this all might never have happened.”
The US Navy’s Little Creek Amphibious Base on the Virginia coast is possibly the most absurdly named stretch of real estate in the country. It should, of course, be called the Massive Creek Base or even Gigantic Amphibious, as it comprises twelve thousand acres of real estate in four locations in three states—the largest base of its kind in the world.
Little Creek is home to fifteen thousand naval personnel and twenty-five home-ported ships. This is the assault-landing HQ of the US Navy, the specialized warships, and the even more specialized warriors. Any time the greatest oceangoing force on earth decides to hit an enemy hard, driving an attack through shallow ocean waters, this is where it begins.
Unsurprisingly, Little Creek is home to four Navy SEAL Teams—2, 4, 8 and 10—invariably the first men to hit the surf and charge. They live, train, and work here on a base constructed around two major naval highways, Guadalcanal and Midway—stark and permanent reminders of what can happen when you drop your guard in peacetime.
It was to this great, sprawling citadel of warfare that two of the lawyers representing the senior SEAL, Sam Gonzales, traveled on a rainy spring morning in 2010. With special permissions granted, documents signed, and offices reserved, they arrived to speak to the men who would soon line up alongside them and attempt to fight back those who would try to discredit three of the bravest men on the base.
Sam’s naval JAG, Lieutenant Guy Reschenthaler, and civilian lead counsel, Monica Lombardi, turned up on time and immediately ran into their first Special Forces operator of the day, a classic associate member of the warrior Teams, built like a Mack truck, hard muscled and tattooed from wrist to shirt sleeve, with slightly wild hair. Reschenthaler recalled, “He looked like a Caribbean pirate, just the way you’d expect one of these extraordinary characters to look.”
They settled into a conference room, and the first SEAL who had volunteered to support the three accused brothers stepped through the door—another hulking, big man with defined arm muscles but clean-cut and free of tattoos. With a deft lightness of touch, he pulled back a chair, sat down, and said quietly, “I’m Higbie.”
Faced with the SEALs’ ground-to-air comms expert as well as one of the strongest men in the platoon, Lombardi began their questioning. Carlton Milo Higbie IV confirmed he was more than prepared to stand up in any courtroom to defend Matt, Jon, and Sam. And he spoke quietly of the atmosphere in Camp Schwedler—slightly bored men trying to wrap up terrorists, the overworked support staff, and the constant need to be on high alert right out there in what he called “Indian Country.”
Carl was flawless in both his recall and recounting of the night of September 1. He told how they “wrapped up” Al-Isawi but did not strike him or get rough with him at any time during the capture. The big SEAL described how they painstakingly walked the prisoner across the desert to the waiting helicopter, which had been circling a mile away.
Reschenthaler made a note of Carl’s cool assessment of the following events: “And then this Westinson either lied or beat the guy up himself!”
Immediately he reverted to the SEALs’ usual way of naming the prosecution’s key witness, Brian Westinson, or “Weston” as he was called: “Weston struggled to fit in. He was always talking about P90X workout videos or becoming a CHIP [California Highway Police].”
“You could have considered Carl a loose cannon because he was so smart and droll,” said Reschenthaler. “But then best remind yourself this guy was a highly educated Navy SEAL who had occupied a position of supreme importance on that night mission, single-handedly standing ready to call in air support. SEALs don’t have loose cannons. They only have tightly coiled professionals, and you look at Carl Higbie—that’s exactly what you’ve got.”
Next man in was the SEALs’ chief medic on the mission, the man who would have stepped right into the front line as the platoon doctor if anyone had gone down. A big surprise here: Paddy turned out to be the huge Caribbean Pirate whom Lombardi had seen in the corridor, still unkempt and tattooed but with a brilliant recall. His account of the pertinent events absolutely matched Carl’s.
He confirmed he had screened the prisoner on arrival. And then coldly announced that Westinson was alone with Al-Isawi when Paddy left the holding cell.
Next, Reschenthaler and Lombardi interviewed Lynn Friant, the camera operator, and as the one person Westinson had befriended, she was important. But Lynn had a sense of justice and was plainly concerned about the state of mind of the young master-at-arms. She believed he had real issues but looked upon her as a big sister or mother or some kind of confidant.
He had admitted to her that he was having problems at Camp Schwedler. He had stressed himself out by refusing to delegate his duties and insisting on undertaking long, sometimes twenty-four-hour watch cycles.
Lynn painted a graphic picture of an immature, self-stressed young man desperately trying to justify his existence at the hot, dusty Forward Operating Base (FOB) in Iraq. She described how he came to her after the incident, and Reschenthaler carefully recorded her opinion that Westinson was having some kind of mild nervous breakdown.
She stated that Westinson told her: “I gotta do something. I gotta tell somebody what happened. My Dad will never love me. My parents will hate me. I’m the only son. My life is over. I’ll never be a CHIP. I gotta tell. I gotta tell.”
Lombardi and Reschenthaler were concerned by this, and they were both aware that it could hurt their case. Talk of a nervous breakdown could elicit major sympathy for Weston rather than point out an obvious unreliability factor.
They closed the meetings thoughtfully, unsure what might lie ahead when they finally met Westinson in the very near future.
This was not long in coming. Reschenthaler and Lombardi now joined Sam’s lead JAG defense lawyer, Lieutenant Commander Andrew Carmichael, a graduate of the US Naval Academy, Annapolis, and former surface warfare officer in USS Laboon, one of the Navy’s nine thousand-ton twin-shafted Arleigh Burke destroyers, which carry the deadly 530mph Tomahawk Block IV SLCM (ship-launched cruise missile) with a thousand-pound warhead.
Carmichael had also worked for the chief of Naval Operations Legal Staff in Arlington, Virginia, while graduating from Boston College’s Law School. He now joined Reschenthaler and Lombardi in a pretrial attempt to interrogate Westinson, who was still the only government witness accusing Matt McCabe of striking the terrorist.
The three naval attorneys arranged to meet him in the conference room at Lombardi’s office. And they sat patiently, waiting for Westinson, who was running late. This gave them much time for speculation: What was he like, this nervous young man who had turned his hand against these decorated SEALs? Did he understand his importance, that he was the government’s only chance? Would the lawyers, like or hate him? Would he have a nervous breakdown under questioning?
There was a tense atmosphere in that conference room when Westinson finally made his entrance and apologized for his lateness. Reschenthaler’s own recollection of that mome
nt was solid: “Tell the truth,” he told him. “I quite liked him, although I’m not sure any of us trusted him.”
With the natural authority of a retired Thomas Jefferson High School wrestler, Reschenthaler added, “He seemed like an all-American kid who could have been a pal on your football team, a good kid, but one who took himself just a little too seriously, maybe trying too hard to be older, more mature than he was.”
His story, however, was graphic, maybe too graphic. Brian outlined his own plight: working hard, dealing with long hours, trying to run security on this tough FOB. He liked the SEALs and enjoyed working with them. And he recounted how, when Al-Isawi was “rolled up,” Paddy took some processing photographs after his examination while he, Westinson, guarded the “box”—the holding cell converted from the shipping container.
Al-Isawi had then been placed in a chair, blindfolded, and his hands were tied. According to Westinson, Sam Gonzales then came in and said, “I gotta take a look at this guy.” Soon after that, Jason arrived.
And right here the master-at-arms moved into brand-new territory, at least it was for the lawyers. “Sam stood up and kneed the prisoner in the gut,” he said. “Jason stood by and laughed. They worked him over. Then Higbie showed up and ‘roared’ at Al-Isawi, scaring him, since he was blindfolded.
“Higbie then went outside, grabbed a stick and started beating on the walls, and running that stick against the metal, to scare the blindfolded captive.
“Next McCabe and Keefe came in. One struck Hashim from behind, knocking him to the floor. Someone kicked Hashim while he was down, striking his ribs. He was helped up, only to receive a swift punch in the gut from McCabe.”
He added that the SEALs eventually left, and Westinson then tried to clean Al-Isawi, wiping blood from him. But the dishdasha was stained, and the terrorist’s lip was bloody. The prisoner was given a new dishdasha to wear, but when the Iraqis came to pick him up, according to Westinson, the prisoner began to spit blood and said, “The Americans beat me, the Americans beat me.”
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 29
