Both granted.
Then there was in Iraq (3) the Manchester Manual and its judicial inclusion and (4) the argument over the definition of good military character and Sam’s medals on the napkin.
Both finding for the defense.
And there was (5) Lieutenant Kadlec’s failed plea on behalf of the government that the defense team should not harass his star witness.
Denied in favor of the defense.
And finally (6) the undeniably skilled work of Reschenthaler when he demonstrated, to the judge’s obvious consternation, the prosecution’s unreasonable behavior in not providing the defense with even basic office supplies.
The defense had not lost one yet. And, to misquote Commodore John Paul Jones, they had not even begun to fight. Because the real enemy was not yet over the horizon.
11
TWO VERDICTS IN THE IRAQI COURTROOM
Ten Navy SEALs will swear by all that’s holy that Matthew McCabe did not strike the prisoner, not one of the SEALs struck the prisoner, no one lied, no one threatened, and no one covered up any aspect of the evidence.
Seven months and twenty-two days had passed since those fateful hours in the dark, small hours of September 2, 2009, when the men of Echo Platoon had frog-marched the handcuffed al-Qaeda murderer Al-Isawi out of his desert stronghold.
Seven months and twenty-two days since Petty Officer Sam Gonzales had stood alone, beneath the sinister watchtowers of the terrorist garrison and quietly called in the three SH-60 Seahawks to airlift the Team and their prisoner out of this menacing jihadist outpost.
And now he was still on the outer reaches of that very same nine hundred thousand-square mile Arabian Desert, and the sand on his boots was identical, light and blowy. But this was not quite such a wasteland. Before him was an American military courthouse, and he must cross a wide main road to get to it.
He was not armed, yet to him the building was about a hundred times more dangerous than Al-Isawi’s quarters had ever been. Because inside that building there were people trying to destroy him personally. Three highly trained military attorneys were prosecuting him, Sam, on behalf of the government of the United States of America.
Sam Gonzales of Chicago, Illinois, had given up trying to work out precisely why. Or what he had done to deserve it. The problem was that this particular Navy SEAL was not like the others. For him there was no life beyond the Teams, only blackness.
The SEALs were his lifelong ambition, his reason for living, his pride, his happiness, and his love. If it all suddenly ended, he had no idea what would become of him. In truth, he did not really care. He kept going because he believed that Reschenthaler, Lombardi, and Carmichael would somehow get him out of it. And to that end, he was already hoping for a new deployment when he returned to SEAL Team 10.
For the others, that was a possibility. But there were many, many people involved in this case who were about ready to quit the US Navy and head for the hills. Lawyers and combat warriors alike were mortified by what was happening to the three accused men, and some of them were, albeit subconsciously, considering civilian life.
Sam was different, though. For him there was nothing else. To resign from the SEALs was beyond his comprehension. He lived—and always would—for the discipline, for the sound of a new magazine snapping into the breach of his rifle, the planning, the stealth, the defeat of his country’s enemies.
And the sight of the Stars and Stripes right there on his battle patch sent a shiver of patriotism through him every time he pulled on his body armor. He wore that patch next to his treasured Trident—his symbolic badge of honor, which he slept with, under his pillow, every night of his life. Sam Gonzales was not like the others.
He understood as well as any of them what a guilty verdict would mean, if these strangers somehow decided he had been “derelict” in his duty and had indeed lied to his superiors to cover up some crime that he knew perfectly well had not been committed.
It was the disgrace that mattered to him most. And in the end he was at their mercy. Now in the burning heat of this Baghdad spring day, he walked across the street, flanked by Lombardi and Reschenthaler, like a nineteenth-century French nobleman headed for the guillotine.
A fusillade of machine gunfire or even a flying bomb was all part of Sam’s job description. And he could deal with those. But the treacherous ambiguity of the courtroom, the insinuation and inference, would probably prove beyond him, and he gripped Lombardi’s arm as they walked through the corridors of the US military’s Baghdad legal building.
The case began shortly before 2 P.M., and as promised, a contingent from SEAL Team 8 was present. Whatever had happened on their night mission, it had not stopped them showing up in support of Sam Gonzales, and they sat shoulder to shoulder in the gallery.
Judge Tierney Carlos, presiding over the large courtroom from a somewhat majestic raised dais, sat at the head of a wooden staircase.
The prosecutors’ table was placed on the left of the courtroom looking at the judge, closest to the jury. And there, Lieutenant Commander Jason Grover would be seated next to Lieutenant Nicholas Kadlec, with the lady Reschenthaler referred to as the “Ice Maiden” on the right.
Lombardi’s table for the defense was set on the right-hand side of the courtroom. And as soon as they arrived, she placed Sam at the far end. Lombardi herself sat between Reschenthaler and Carmichael. None of it was by accident. This was courtroom strategy, and it ensured that when members of the jury looked across at the uniformed Navy SEAL, they would see him face-on.
They would also quickly grasp that Sam was seated right next to a stand-up, decorated lieutenant commander, a graduate of the US Naval Academy, who quite plainly believed in him. And also in his innocence. Everything counts in these highly combative courtroom clashes.
And already the defense counselors had to make a knife-edge decision. They would not call Sam Gonzales to the stand. SEALs are not famous for their guile except in battle. They are trained to fight hard, with maximum cunning and ruthless execution. When they speak they speak plainly—no innuendo, no confusion, and no economies with the truth.
That’s what a SEAL is: uncompromising in his views, unbreakable in his personal code, and, unhappily in this case, inclined to think that everyone else is like him—with the exception of the enemy, none of whom can be trusted one yard.
Because of this, a skilled and devious prosecutor would trip up Sam Gonzales, trapping him into one of these all-too-familiar courtroom techniques:
You mean you don’t know?
Well, not really ...
Then it could be true?
I suppose it could ...
But you just said you thought it could not be?
Well...
So you weren’t really telling me the truth, were you, Petty Officer Gonzales?
Well, I believed I was ...
Do you mean you’re uncertain of the difference between the truth and lies?
That’s what is known as a brutal cross-examination. It has nothing to do with right and wrong; it has to do with the courtroom skill of the attorney and the inexperience of the witness. It’s harsh, often unfair, and Lombardi was not going to have it inflicted on Sam. Like his great buddy, Carlton Milo Higbie IV, but for different reasons, Sam would spend this trial on the bench.
Lombardi arranged the court papers in front of her, and some she pushed over toward Carmichael. Sam averted his eyes when he saw the top one, headed ”THE UNITED STATES v.” and then his own name and rank. This was the one with which he could never come to terms. Because throughout his working life he had been prepared to die, any time, any day, for the United States of America.
And now it seemed he was up against his own side. It was the only part of this whole trouble that more or less reduced him to rubble. And his lower lip tightened as he caught sight of it again: THE UNITED STATES OF AMERICA v. SAM GONZALES. He guessed it was not much different for the other two, Matt and Jon. They too were perfectly willing to die for their
country. Otherwise none of them would have been SEALs in the first place. For all three of them, those words on the official charge documents were a never-ending dagger through the heart.
The courtroom rose as Judge Tierney Carlos made his entrance and took his place on the dais. When everyone was once more seated, the prosecutor Lieutenant Nicholas Kadlec rose and briefly outlined the case against Sam Gonzales: that having watched Matthew McCabe strike Ahmad Hashim Abd Al-Isawi, Sam proceeded to lie about the incident and then indulged in a SEAL cover-up of the issue, falsifying the evidence.
Lieutenant Kadlec indicated to the jury that Al-Isawi would stand before them and inform them personally about the abuse he had suffered and that the Navy master-at-arms who had been guarding him in the holding cell, MA3 Brian Westinson, would testify to support his statement.
Attorney Kadlec told Weston’s story and made the significant point: Why would he lie about this, when the whole world wants it not to be true? There is only one answer—that it was true. And he is not lying.
Carmichael had already overcome one major setback this morning: he had arrived at the courtroom without his wedding ring and, assailed by superstition, had prevailed upon another JAG, Paul Threatt, to set some kind of an all-comers sand record across the desert to retrieve it. Threatt had made it back with moments to spare.
Carmichael’s opening statement had taken until 2 A.M. to perfect. He, Lombardi, and Reschenthaler had gone over and over the facts, especially that Brian Westinson had made many statements, four of them to the trained NCIS agents. He had also been subjected to four different interviews and, the defense would argue, there had been serious differences among them.
The Navy JAG would communicate to the jury that ten Navy SEALs will swear by all that’s holy that Matthew McCabe did not strike the prisoner, that not one of the SEALs struck the prisoner, that no one lied, no one threatened, and no one covered up any piece of evidence.
“Ten Navy SEALs,” he would remind them. “But the government has decided to believe the word of this one man, Westinson, the one man who we know with 100 percent certainty has not been telling the truth.”
And now Carmichael rose from his chair in this otherwise silent courtroom and began with a short introduction. “The prosecutor,” he said, “just told you the story of two witnesses. Now I will tell you the story of everyone else. Because every other witness you are going to hear tells the same story. Only the two government witnesses say something different.
“And who are these two government witnesses? A scared, immature MA3 with a huge motivation to lie ... [long pause] ... and a terrorist.”
Carmichael now walked back across the well of the court to the table allocated to the defense. He stood by Sam Gonzales, then turned to the jury and said, “Hi, I’m Lieutenant Commander Drew Carmichael. And I am proud to represent this man. He is a United States Navy SEAL, winner of a Bronze Star with Valor, a Navy Commendation Medal with valor, and acting leading chief petty officer for a forward-deployed SEAL platoon.”
The essence of the defense strategy was to talk the jury through the mission, to take them back to that strange desert and walk with the SEALs over the rough ground in the dead of the night until the moment when they located the building and Matthew McCabe led the guys in.
Carmichael reminded everyone that the SEAL leader identified and subdued Al-Isawi. “He could have roughed him up right there,” he said. “But he did not. He was completely professional at all times. He found much evidence—various IDs, a lot of cash, weapons and ammunition. And they brought the terrorist in, removing his handcuffs for the walk back to the helicopter, making sure he did not fall.”
Sam’s senior naval counsel then reconstructed those early morning hours of September 2, laying out for the first time all in one sequence, chapter and verse, the timeline of events from the moment the SEALs handed the prisoner into Westinson’s custody.
It now came out that Westinson watched Al-Isawi for about fifteen minutes and then took him over to the Iraqi section and left him in their custody for ten minutes. It was not yet 0500, and it was certainly not yet light. And that was when Weston had stumbled into the first of his many problems. This was right in the middle of Ramadan, the most holy month of the Muslim year—thirty days of prayer and fasting, lasting from August 11 to September 9—thirty days when Muslims are virtually forbidden from eating and drinking from dawn to dusk.
Weston’s Iraqi Muslims mutinied because right now they needed to eat before facing the long hot daylight hours when they denied themselves food. They volubly complained to Lieutenant Jimmy about this sacrilege of one of the Five Pillars of Islam, the ninth month of the year, Ramadan, during which no one should request any Muslim to work during darkness.
Lieutenant Jimmy was furious and personally accompanied Weston to collect Al-Isawi. He then yelled at the young master-at-arms for daring to turn his prisoner over to the Iraqis without asking permission.
They walked the blindfolded Al-Isawi back to the Conex Box holding cell, and at 0500 Lieutenant Jimmy entrusted Westinson once again to guard him. Everyone else from Objective Amber was either eating breakfast or showering.
Lieutenant Commander Carmichael then informed the jury that his client, Sam, had decided to go check on the master-at-arms to make sure he had everything he needed. And he asked McCabe and Keefe whether they wanted to come with him, after which the three of them rode over on a four-wheeler.
“All three of them say the same,” said the attorney. Weston said he was okay and didn’t need anything. “The whole encounter lasted not much more than one minute.”
He also told the jury that Carl Higbie and Jason had walked in to check on Weston and the detainee. Carmichael stated, “Weston said he was fine, and neither Carl nor Jason noticed anything wrong with Hashim.”
At 0545 HM1 Paddy, the big medic, arrived at the Conex Box to do a medical inspection of the detainee. He passed Carl and Jason on the way, just as they were leaving. The medical inspection lasted around fifteen minutes, Westinson having helped by lifting the prisoner’s arms to check for bruising. Paddy noticed no medical issues with Al-Isawi.
“From this point on,” continued Carmichael, “MA3 Westinson was left by himself with the detainee for two hours, although he admits to abandoning his post twice. And at around 0730 he moved the detainee to another Conex Box, closer to the camp, where he could try to flag someone down to allow himself a break.”
It was just before 0800 when Lieutenant Jimmy came by to check on Weston and saw blood on the front of Al-Isawi’s dishdasha, spots about the size of a Nerf-foam football. “More a spatter than a pool,” said Carmichael.
“What the hell happened?” demanded Lieutenant Jimmy.
“I don’t know,” replied Weston.
And that was when the SEAL officer and Westinson walked the prisoner off the base to hand him over to the Iraqis. Both men remembered how Al-Isawi’s demeanor changed as soon as he saw his countrymen—bending over and crying out in pain, sucking on his lip, trying to spit blood.
The meeting was called, and the lieutenant confronted the SEALs with the problem. And then he reported everything to a higher authority.
“What follows,” Carmichael told the jury, “is the story you will hear from everyone, from all the SEALs. Though not just from them but also from the techs [the name SEALs give other enlisted ratings who work with them]. And not just enlisted men, but officers.
“In short,” he added, “everyone besides MA3 Westinson and the terrorist will tell you this story.”
Carmichael paused and moved to the center of the courtroom. And here he began what was undeniably the first lucid account of all the many statements made by the witnesses for the prosecution. So many of them had been heard, fragmented, opportunistically selected, and, indeed, sometimes presented out of order. That was all about to end.
Carmichael, aided by his experienced and diligent team, Lombardi and Reschenthaler, was about to blow MA3 Westinson’s words into the str
atosphere.
“You have heard from the prosecutor a version of MA3 Westinson’s story,” he said. “But what he did not tell you was, that was Version Six! Yes, MA3 Westinson has told six different versions of his own story.”
And in grim, metronomic sequence, he laid out publicly for the first time, the words of the master-at-arms that he, Lombardi, and Reschenthaler had traveled halfway across the world to refute on behalf of Sam, Matt, and Jon.
“Version One, uttered on that infamous morning at 0800, September 2, when Lieutenant Jimmy first discovered the blood on the prisoner: ‘I don’t know what happened.’
“Version Two, told and repeated only a couple of hours later in the general meeting called by Lieutenant Jimmy: This is all my fault. I left my post and he got hurt. This is all going to come on me.’
“Version Three came two days later, when MA3 Westinson began to test out his story. He tells the camera operator, MC1 Lynn Friant: ‘I may of [sic] saw something. I was out of the room, but when I was walking about, I saw the detainee recoil as if hit. Then I saw McCabe standing as if he hit him. I didn’t see what happened, but I think it was a sort of half-punch.’
“Version Four came the next day, September 5. MA3 Westinson goes to Lieutenant Jimmy and tells him he saw ‘McCabe hit the terrorist in the side while he was sitting in a chair. Both Gonzales and Keefe were watching. Keefe cheered. Sam said, ‘Don’t feel bad. He deserved it.’
“Version Five came ten days later. Having already made a sworn statement on September 5, where he told investigators ‘everything,’ he now reports a new ‘secret meeting’ that occurred about an hour later, ‘where all the SEALs sat around and got their stories straight.’”
Carmichael told the jury that in this Version Five, Petty Officer Gonzales is now directing everyone to get their stories straight. “This,” he said, “is a follow-on meeting which MA3 Westinson had never even mentioned before. And everyone else denies ever happened.”
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 33
