For the next couple of days the ash cloud’s obdurate lack of progress dominated the Baghdad courtroom. Would McCormack get here or not? And Sam’s team of Lombardi, Carmichael, and Reschenthaler was already working on the theory that he would not make it. They had to assume this, because that would require them to go in first, with Sam Gonzales, maybe at an hour’s notice.
Two days after his interview with the Butcher, Reschenthaler brought Al-Isawi to the courtroom. This was the eve before trial, and the same slacker linguist was there, and so were the guards.
Reschenthaler was polite. “Mr. Hashim, I can call you that, correct?”
“Na’am, na’am.”
“I want you to sit in that chair. It’s the witness chair.”
Al-Isawi sat and looked around, muttering again, “Na’am, na’am.”
“This is an American-style courtroom. I understand it is much different from your system.”
“Na’am, na’am.”
This was, thought the attorney, truly awesome. The guy said “yes, yes,” to everything I said.
“The judge will sit there,” he told him. And he carefully explained the layout of the court and who would be seated where. Al-Isawi plainly felt comfortable, and he was extremely warm to the man who would cross-examine him ruthlessly, probably tomorrow.
Carmichael brought him water, and Reschenthaler confirmed he had asked around about the money, which excited Hashim to no end. And the Pittsburgh attorney then assured him he had spoken to the JAG and was very much on the case.
“I’ve filled out the paperwork,” said Reschenthaler. “I know it’s a slow process. But I’m trying.”
Al-Isawi was very obviously thrilled. He’s mine, gritted Reschenthaler. This bastard’s all mine.
And he once more went over the questions he’d asked the day before. And to Reschenthaler’s near-ecstatic joy, Hashim exaggerated even more wildly. He said his injured shoulder hurt to this day, that his gut was still sore from the beating, and that there had not been one or even two kicks; there had been dozens.
When Al-Isawi was done Reschenthaler thanked him again and warned him that another attorney would question him in the courtroom before Reschenthaler stepped up. “That’s our system, I’m sorry,” he added.
And then he pointed to the podium and said, “Once the other attorney is done, I’ll stand right here, and we’ll get the truth out. We’ll make sure justice is done here tomorrow.”
“Shukran, shukran [Thank you, thank you].”
It had been a brilliant morning’s work, and despite the uncertainty about McCormack’s arrival, the two men who would fight in Sam’s corner returned to their apartment to strategize further.
By now Reschenthaler was counting on the ash cloud and counting on going first. If that happened, he would catch Al-Isawi unaware and not ready to face a perceived friend suddenly emerging as a relentless enemy. “I now believed my plan would only work if I could just get to Hashim first,” he said. “Drew knew it, and I knew it.
“The one thing on this earth I did not need was for the friggin’ ash cloud to disperse and for Jonathan’s team to get in first. That would put another attorney in there in front of me, placing a very cunning terrorist immediately on his guard. And that would really work against me in my current role as Hashim’s brand-new best friend.”
The Gonzales team took a firm position about Al-Isawi’s sad little lip injury: if anyone had struck him, that someone must have been Weston, who had the opportunity and, as the prisoner was effectively bound and gagged, the ability.
Now, Brian Westinson was a perfectly normal well-built young serviceman, but that is not the same as being a SEAL. By their standards Weston was on the weak side, and a swift punch from him would not really mean much. However, in the utterly unlikely event that Matthew McCabe had banged the prisoner, that would probably have taken his head off or, at the very least, inflicted serious damage.
These were the conclusions of Carmichael and Reschenthaler as they prepared to put both Al-Isawi and Weston under intense cross-examination to try to show that both men had every reason in the world for blaming the Iraqi’s very suspect injury on the US Navy SEALs.
For the moment, however, the defense rested. At least they took time off to go for lunch, carefully skirting around the American counter where processed hamburgers and hot dogs were being prepared. The attorneys headed directly to the India counter, where the home-cooked, curried food was nothing short of world-class.
Generous plates of chicken and lamb vindaloo, shashlik, and rogan josh set them up for big decisions, and the biggest one was not whether to call Carlton Milo Higbie IV as a witness for Sam Gonzales. In Reschenthaler’s opinion, Carl was just too big a presence—larger than life in every way, massively built, “like a goddamned man-mountain, super-bright and funny as hell.”
“There’s just a chance,” he told Carmichael, “the jury might take one look at this guy and decide he could easily have given the prisoner a light clout across the mouth as he left the holding cell and then got the other SEALs to join in.”
Reschenthaler knew it was a long shot. “Nonetheless, it could happen,” he said. “Carl is just too big a deal, and he could be judged a wild card. He does not add much to our case because the SEALs are all united in their accounts. But the one thing he does give us is the chance for the case to go south.” That did it. Petty Officer Carlton Milo Higbie IV was on the bench for this one.
Meanwhile the accused SEALs occupied their own space and shared their own concerns principally with each other, although the enormous support for them could be sensed in just about every corner of this US military complex.
Later that night, after dinner, Jon and Matt took the half-hourly bus over to the Army Exchange, the troops’ little store on Camp Victory. Waiting outside for the return bus, they were given a ride from a couple of the SEAL Team 8 guys in their Toyota HI-LUX truck.
All the way back the Team 8 SEALs told them that everyone was in their corner. In their considered view the charges against the three Team 10 SEALs were nothing but bullshit, and that was what everyone in the platoon thought. They said if they had no mission tomorrow, then every last one of them would be in that courtroom in support of Jon.
It was a fast journey home. Team 8 was about to leave on a mission, a night raid in a bad part of Baghdad, and the driver was under pressure. Worse than Jon, in some ways. Because the Team 8 Platoon was expecting a firefight tonight, and they were going in with heavy machine guns.
That same evening, in the final hours before the first trial, Lombardi arrived to take charge as senior counsel. She was really tired after that long trans-Atlantic journey, and all three members of the Gonzales defense team were surprised to be summoned to an 802 judicial conference with the judge at nine o’clock at night.
They hurried over to the main courtroom building on Camp Victory and found Judge Tierney Carlos close to boiling point.
“Okay, you’re up tomorrow ...” he began.
“But I’ve only just got here ...” protested Lombardi.
“Look,” he snapped. “I’m getting tired of this. I’ve been listening to it since January, and I’ve been right here for three days waiting for either you or McCormack to show up. I’m running this courtroom, and tomorrow you three, and your client, better be ready.”
Lombardi had never seen the normally affable Judge Carlos so irritated. For the first time she now knew the trial of Sam Gonzales, the first of the three, would go ahead tomorrow, Thursday, April 22. Reschenthaler was so pleased to have the opening shot at the prisoner, and they returned to their temporary home base and started work.
Because McCormack was still unable to take off from Amsterdam, Jon’s trial would be pushed back a couple of days. After all the long months of legal maneuvering, trying to persuade the government to drop the case, Sam and his team prepared for battle. And it was no less serious now than it had been when the SEALs were first accused.
Tomorrow Sam’s life an
d beloved career as a Navy SEAL was on the line. Alone in his little on-base cabin, he never slept for even an hour. His friendship with Reschenthaler helped, because he understood the amount of work the attorney from Pittsburgh had put in. But he was very frightened.
Reschenthaler, Carmichael, and Lombardi would either save him tomorrow, or his life as he knew it was over. Ahead would lie only disgrace—the expelled Navy SEAL who had lied to his superiors. And still, all through that longest of nights, Sam could not understand why they were doing this to him.
But before the trial began, there was the highly contentious procedure of motions when the lawyers for both sides go before the judge and attempt to lay down agreeable ground rules that would work in their favor, prosecution or defense.
And here the defense team ran into a characteristic blocking tactic that the government had committed: first of all, none of the government’s motions had been presented for the defense to study and prepare to counteract—there was no copy paper for them, and there was no printer.
Carmichael, who had hard firsthand experience of the art of blocking, put it down to straightforward “dirty tricks” deliberately done to prevent Lombardi and her team from making thorough and well-prepared responses.
Stuck out here in this third-world country in a first-rank desert where even the defense conference room was never cleaned up from one day to the next, the chances of getting ahold of a decent printer were remote. Carmichael actually had to write one critical motion for the judge by hand.
This was the Motion in Limine—that the terrorist’s tactical handbook, the Manchester Manual, be entered through judicial notice.
This meant Carmichael was requesting the Manchester Manual be included as part of the evidence and asking the judge to read the salient parts to the jury. The term “Limine” is from the Latin for “from the start.” And they had half-expected the prosecution to put up some kind of strong objection, but nothing much occurred, and Judge Carlos agreed with Carmichael. The motion was granted.
In the great scheme of things this was a small victory. But to the defense it really mattered. That diabolical little handbook instructed all al-Qaeda operators to lie categorically about being abused by Coalition Forces if captured. And as Reschenthaler mentioned more than once: “If that’s not significant, what is?”
The upcoming jury selection was also critically important to the defense. “We wanted personnel who were already stationed in Iraq,” Reschenthaler said, “because each one of them would know all about the Manchester Manual and the lies of terrorists.”
And then there was a new Motion in Limine from the prosecution, handled by the youngest member of the team, Lieutenant Nick Kadlec. He and the prosecution’s senior counselor were now supported by a cool, blonde, pale prosecutor, previously stationed in Norfolk but now flown in from Italy to help.
Carmichael and Reschenthaler had previously been concerned about them having three against the government’s two counselors, thus increasing the possibility of bullying witnesses and giving an unfair advantage to the defense. But now the numbers were even, and the new arrival was perfect—for the defense.
She was rather cold in manner, calculating, and Reschenthaler hoped she would become the memorable face for impersonal government, that overwhelming legal machine that cared nothing for the valorous Sam Gonzales, this outstanding Navy SEAL and obviously nice man.
Meanwhile the ambitious Kadlec went to bat for that government, standing up before Judge Carlos to plead his motion that the defense attorneys not be allowed to “badger” Weston. The prosecutor wanted that set in stone—that Lombardi, Carmichael, and Reschenthaler refrain from harassing the witness and that the judge would step in and order them to desist.
Reschenthaler thought that would be a mortal blow, because if ever anyone was going to be harassed, it was undoubtedly Weston, who may just have been responsible for this entire catastrophe.
The defense counselors need not have worried, however. Judge Carlos slapped down the prosecution’s motion in short order. He was even visibly angry with Kadlec, admonishing him: “Nick, Nick. This is my courtroom. You can’t dictate whether you’ll sit still while your witness is harassed. If you object, I’ll make the call. Got it? The motion is denied.”
The last motion involved the slightly fraught subject of evidence, which involved good military character. The accused may only present opinion, or reputation evidence, not specific acts. The government may only rebut with specific acts. For example:
Mr. Witness, how long have you known Sam, the accused?
Five years.
How do you know him?
He works in my department.
Are you his supervisor?
Yes.
Have you observed him perform his military duties?
Yes.
How often do you see him a week?
Five days, maybe five hours a day, give or take.
And do you know others who observe him?
Yes, officers superior to Sam, and his peers.
And what is Sam’s reputation for military character in the community?
Excellent.
That’s what’s allowed. It cannot be specific. And right here, Reschenthaler had a problem with a motion he considered vital to Sam’s defense. What’s more, he anticipated the prosecution would try to stop it.
The issue was Sam’s combat medals, specifically his Bronze Star, with a “V” (for valor), the fourth-highest combat decoration in the US military, awarded for heroic or meritorious achievement and only to those engaged in action against enemy forces.
Reschenthaler put it to Judge Carlos that the distinction of having earned that medal was significant and should be included in evidence. The government immediately objected, claiming the Bronze Star with its combat “V” was neither opinion nor reputation, as required by the codified Rules of Military Evidence.
It was too singular, a specific act, as the combat “V” suggested the medal recipient had performed some heroic act. For a few moments this threw Sam’s defense team for a loop, especially as there were only minutes left before jury selection began.
But Reschenthaler came back, more determined than ever, and argued that the jury would see the medals anyhow, as Sam Gonzales was permitted to wear his uniform and display all of his ribbons. Furthermore, he pressed, no one would know what act Sam had undertaken, only that he must have had a reputation as an excellent SEAL to earn that medal in the first place.
Judge Carlos had heard enough. He stepped in and snapped, “Enough! That’s enough. Guy, just get me a list of his awards and I’ll read them to the jury.”
Lieutenant Commander Grover for the prosecution was on his feet immediately: “But sir ...”
Judge Carlos would have none of it. “I would say,” he stated, carefully, “that a Bronze Star with a combat ‘V’ is evidence of a good military character. It’s coming in.”
He turned back to Reschenthaler and asked, “Can you get me the list?”
“Sir,” replied the attorney, frantically looking for copy paper, “we do not have any paper, and we cannot get set up with a printer.”
“You mean the government has not provided you with any of that?”
“No, your honor.”
“Well, what do you have? Anything?”
Reschenthaler dived into his jacket pocket, trying not to laugh. “I have these napkins from the DFAC [dining facility—cafeteria].
“Fine, fine,” said Judge Carlos, casting his eyes heavenward. “Write them on there, and give the list to the clerk, and we’ll get the awards on the record.”
Reschenthaler scribbled away on the napkin and then handed it to the judge directly, with an appellate exhibit number. And so passed into the official court-martial record the formal list of Petty Officer Sam’s combat decorations, right there on the napkin.
“That was important,” said Judge Carlos. “Thank you, Guy.”
Jury selection took place immediately afterward, and six �
�good men and true” were sworn in. And once more, things broke well for the defense. Every juror had been serving in Iraq. Every one of them knew the creed of the Manchester Manual by heart and understood what it meant to every al-Qaeda prisoner, trained as they were right from recruitment to lie flagrantly if captured.
Reschenthaler and Carmichael had both considered that manual—what it meant and its clear and obvious dishonest creed—to be of such importance that in preparation for this trial they had recently taken the trouble to attend a conference focused exclusively on the little book.
The junior attorney from Pittsburgh had long considered his JAG mentor, Lieutenant Commander Carmichael, the finest litigator he ever met in the US Navy’s JAG corps. And he listened carefully to one of Carmichael’s lifelong certainties about courtroom know-how: “If you’re going in there with even the slightest chance you may end up in an argument on any subject, no matter how apparently insignificant, make sure you know a whole lot more about it than the guy on the opposite table.”
Thus, Carmichael and Reschenthaler were experts on that manual. And when the time came to fight for its inclusion in the trial, they both knew they had to win. It took no time at all to convince the judge they were right; it rarely does when two attorneys understand precisely what they are talking about.
In this case the trick was to get the Manchester Manual entered into evidence via judicial notice so that no authentication would be necessary in court—no proving, for instance, that the defense hadn’t written the book themselves.
And when, finally, the Lombardi team left the grim legal building in the desert, with its blast-wall defenses against the possibility of an al-Qaeda bomb, they were able to look back at several months of quite-notable pretrial victories. Six times, on either side of the world, they had pleaded with Judge Carlos for a decision in favor of Sam Gonzales. And each time they had come away with precisely what they wanted.
There were the two Norfolk motions: (1) the request for immunity from prosecution for the five witnesses who would stand up in court for the accused SEALs and (2) the rights of the three accused SEALs to confront their accuser in open court.
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 32
