They would not even call on the hero of the hour, Petty Officer 1st Class Sam Gonzales, who was in attendance, wearing full dress blues and ready at a moment’s notice to step up and swear to God that Jonathan Keefe had never once in his military life been derelict in his duty and neither would he have dreamed of telling a lie to his superior officers.
The prosecutors could struggle on all alone. And Judge Carlos would have the option of confirming what had been established yesterday: there was insufficient evidence to eliminate the possibility of reasonable doubt.
There was, however, one significant turn this case would still take, and the Judge himself activated it. He had seemed slightly on edge over the nonappearance of any defense witnesses. Suddenly, when it became official that defense would offer no more, Judge Carlos elected to call witnesses of his own. It was the first time in a long career that McCormack had seen such a development in any courtroom.
And Judge Carlos, as he had always done, operated close to the heart of the matter. He called up the camera operator MC1 Lynn Friant and quizzed her about the somewhat eccentric opinions that Westinson had confided in her. This was understandable, as the highest military authorities, who had, jointly and severally, condoned this ill-fated court-martial, would doubtless scrutinize his verdict.
It was essential that the weakness of Westinson’s character and evidence be fully exposed, and Friant could surely shed light on that, speaking as his surrogate elder sister. And she was particularly illuminating about his fears of a lack of love, both parental and otherwise, subsequent upon this trial.
The judge also called Carl Higbie IV as well as the medical officer who had confirmed there were “no contusions” visible on the detainee. Summoned once more to the witness box, PO1 Paul Franco repeated, as his immediate boss, that Weston was near the bottom of the barrel of all the sailors he had ever supervised.
Paul Threatt cross-examined all these witnesses. But he had no requirement to be combative because they were all on the side of the defense, each and every one of them certain that Jonathan was entirely innocent of the charge against him, whatever the hell it was.
And together the four of them provided a big turning point in the case. And when Grover rose to make his closing argument for the prosecution, McCormack and Threatt were confident in their position.
It was another good speech, making many of the same points he had made the day before: Why would Westinson lie? What about those two former SEALs killed in Fallujah? But the government’s case had been established on a quicksand of inconsistencies, exaggerations, and lies.
McCormack then stepped forward to close for the defense with a speech in the same class as Carmichael’s opening in the Gonzales trial.
He justified nothing, as he had presented no case. But he concentrated on the utter unreliability of the prosecution’s case, with lightly veiled references to the fact that this was a court-martial that should never have been convened, leveled as it was against these upstanding, brave, and loyal members of America’s elite fighting force.
Once more the prosecution rose to make its rebuttal, their final closing argument. This took little time, and Judge Carlos probably felt by now he had heard enough. And he immediately called a recess while he retired to consider his verdict. The time was shortly after nine o’clock in the evening, and everyone knew they were there for however long he took.
The judge was under orders to get this thing settled just as quickly and inexpensively as possible. And that did not include another day in this courtroom. It might drag on until the small hours, but tonight Judge Carlos would pronounce his verdict on Petty Officer Jonathan Keefe.
As the judge retired to his chambers, reporters and broadcasters rushed out of the windowless courtroom into the heat of the desert night, cell phones ready, camera crews on high alert. No one knew how long the judge would take, and the media pack scrambled for satellite connections to the United States.
McCormack remained with Jonathan, but Threatt headed for the exit, just to stand outside in the air, to break from the claustrophobic courthouse and gather his thoughts.
A couple of hours earlier he had been as confident as his fellow attorney, but Judge Carlos’s unorthodox decision to call witnesses on his own account had cast mild doubts in his mind—not whether Jon was guilty but rather whether the learned judge had other ideas. Either way he recalled later that he was feeling slightly uneasy, standing out there in the media scrum and listening to them dictating their stories.
He found this disconcerting. Everyone he could hear was sending a story that sounded like a verdict of guilty was more or less automatic. There were endless phrases about abuse, about the SEALs beating up the terrorist, and about how they had closed ranks against the prosecutors.
“It was as if they had heard nothing,” Threatt recalled. “As if they had never even read or listened to the evidence of two of the most unreliable prosecution witnesses ever to set foot in a military court of law.”
The defense’s refusal to present a case meant the media had not received the benefit of a group of larger-than-life SEALs marching through the witness box, assuring anyone who would listen that this was the most absurd prosecution ever brought and that all of the accused SEALs were among the best of the best.
In a sense that military tradition of saying nothing had, at this stage at least, somewhat backfired, and thousands of words were flying through the stratosphere, offering lurid accounts of every last act the SEALs were alleged to have done wrong.
It sounded to Threatt as though his client had already been found guilty. And though logic was telling him this was legally impossible, his heart was listening to those journalists, and they were trained not to be right but to be persuasive. And they had about a zillion dollars worth of electronic camera equipment helping them to start spreading the news.
And this would hold up for the immediate future, until Judge Carlos either shut it all down or agreed with the prosecutors.
The time passed slowly: one hour . . . two hours . . . and almost three before the court officials summoned everyone inside. Judge Carlos had reached his verdict a few minutes after midnight, and the courtroom fell stone-silent as he spoke.
“Upon reviewing the evidence,” he said, “and considering the testimony given by Ahmad Hashim Abd Al-Isawi and Master-at-Arms 3rd Class Brian Westinson and, indeed, MC1 Lynn Friant and PO1 Paul Franco, I find there is insufficient reliable evidence. And therefore I find Petty Officer 2nd Class Jonathan Keefe . . . not guilty.”
Jon showed not a flicker of emotion as the verdict was delivered. He offered a tight, curt little nod of approval and turned to shake the hand of the faithful Paul Threatt. But from the crowded courtroom, packed with SEALs, there erupted one of those collective outbursts of “Y-E-E-E-SSS!” as the accused SEAL finally walked free, innocent of every charge that had been leveled at him over the previous eight months.
Because now he was found not guilty of the lies they said he’d told, of the allegations that he’d conspired to cover up the punch Matt never threw. Innocent of being derelict in his duty. Innocent of every darned dishonest thing they said he’d done in the hours after he’d led the platoon forward in the darkness of the desert, machine gun in firing position, and through the wire in search of the most dangerous terrorist in Iraq.
Right now there was only one question left: Could he ever forgive the US Navy for what they tried to do to him? What about the days, weeks, and months of torment as he’d confronted the possibility of personal disgrace and dishonor for crimes he’d never committed?
Could he ever feel the same about the US Navy and the commanders who had presented him with a bound legal file that was headed: THE UNITED STATES OF AMERICA V. S02 JONATHAN KEEFE?
Did anyone have any idea what that had done to him, just the sight of it? How could they? How could anyone understand what those most terrible words could do to a US Navy SEAL, a man who had sworn before God to defend his country with his own life any time h
e was asked to do so?
Sweet Jesus, could anyone ever understand what they had put him through? And could he now regain faith, when for so long there had been no cause for faith? Could he really return to the cause to which he had dedicated his life?
Like General Douglas MacArthur, Jon Keefe would always hear in his mind the “crash of guns, and the mournful mutter of the battlefield” in the strife-torn rubble of Fallujah. The issue was that from now on, could he cast aside the deep wounds of this court-martial and answer once more the everlasting call that summons a Navy SEAL to battle stations to fight against the enemies of the United States of America?
Neither the US Navy nor the SEALs have an official motto, nothing formally written down or carved into a marble slab. But what they have is probably less destructible. And it’s engraved on the soul of every SEAL: Courage, Honor, and Commitment. Jon Keefe still had his soul, but he no longer knew whether the nobility of those words was still intact. He only knew he would try his best and rejoin his platoon, wherever that might take him.
12
THE GREEN LIGHT FROM HIGH COMMAND
SEAL combat leader: “I have no idea why Matthew is sitting at that table accused of anything. That’s a future SEAL leader right there. And he would never lie to anyone in his command. Not in a thousand years.”
The US government’s case against its own Navy SEALs was laid spread-eagle across the sands of Arabia. And now the disparate armada of attorneys, witnesses, freed men, and court officials prepared to embark on the aircraft that would airlift them all seven hundred miles south, back to the old Bedouin lands of Qatar.
The outward journey, less than one week and about ten thousand light years ago had been, at best, incongruent—the thirty-four-strong court-martial touring party had been divided politely but academically almost down the middle. There were those who saw this persecution of the SEALs as disgraceful and those who saw it as a necessary proceeding to show the world that the United States was always superior to lawless terrorists—politically correct, that is.
The homeward journey, however, brought a new dimension to the word “polarize.” Because now there were two distinct camps, divided not by civil and intellectually well-chosen phrases but rather victory and defeat, the triumphant and the vanquished.
There were prosecution lawyers who had been unusually hell-bent on securing convictions for the government. And then there were the iron-souled US combat warriors who had traversed half the globe just to stand in that courtroom and swear that the two accused men, their brothers-in-arms, Jonathan Keefe and Sam Gonzales, were innocent.
There was the judge himself, Commander Tierney Carlos, who as a hard-eyed beacon of common sense and justice, had brooked no unfairness against the defendants. And there were the defense attorneys, a large team of both civilians and Navy JAGs, who had fought tirelessly, night and day, for men they sincerely believed had done no wrong.
For the civilians, Greg McCormack and Monica Lombardi, there was, inevitably, the warm glow of courtroom success. But for members of the Navy JAG Corps there was a special private sense of disquiet.
For the prosecution, Lieutenant Commander Jason Grover, a senior and distinguished naval attorney, had worked with the extremely capable Lieutenant Nick Kradlec, and they had done everything possible for a near-impossible case, featuring two prime prosecution witnesses who no one believed, one of them a killer and an al-Qaeda terrorist who had murdered Americans.
And the Navy defense victors, representing Sam Gonzales, included the youthful and aggressive Lieutenant Guy Reschenthaler, working with Lieutenant Commander Andrew Carmichael. For Jonathan Keefe, Lieutenant Paul Threatt was his lead Navy JAG, and Matthew McCabe’s two Navy JAGs, Lieutenant Kevin Shea and Lieutenant Kristen Anastos, further supported them all.
All of these lawyers essentially worked in the same office in Norfolk, Virginia. A combination of brilliance, passionate belief, and a darned shaky case to begin with had defeated the senior prosecution attorney. It was perfectly obvious that a few commanding officers in both the Navy and the Army were by now looking at these court-martial results with a somewhat jaundiced eye.
General Charles Cleveland and his staff were likely not happy about the outcomes. No one likes to bring a failed prosecution, certainly not one that had been cast so ignominiously upon the drifting sands of the Syrian Desert.
This applied particularly to any case in which there was not only relentless public pressure to have the proceedings stopped but also advice from distinguished military lawyers, eminent commentators, and many important members of Congress, all suggesting that these prosecutions against Navy SEALs were approaching the very heights of judicial folly.
Although General Cleveland and his legal assistants had been thoroughly alerted to the dangers of their prosecution, they had nonetheless pressed on in an obdurate way. The question that had baffled every lawyer involved, not to mention the defendants and very probably the judge was: Why?
What advantage could there possibly have been to charging SEALs with an offence that no one in the United States cared about? So many Americans thought, Banged a terrorist in the mouth or wherever? So what? Whack him again for all I care.
But the most bewildering aspect of the case was the obvious flimsiness of the prosecution’s case. Everyone knew the unmarked terrorist was likely to be torn apart on the witness stand, and everyone knew the honest, straightforward SEAL witnesses, not to mention the medics, were going to cast doubt about Westinson’s validity as an assistant to the prosecution.
Plainly these doubts had been in place since the very first statements had been taken. Why then, had a former Special Forces officer like Charles Cleveland risked going ahead when the apparition of failure lurked around every corner?
And now the SEALs’ prosecution had been discredited. The jury did not believe Westinson or Al-Isawi, and neither did the judge.
So why? Was there something these very smart attorneys had missed? Was there some ulterior motive attached to this entire case? Were the men of SEAL Team 10 under some kind of a cloud?
Well, that last question was bothering at least two, maybe three, of the attorneys on that long journey home. And slowly they were putting together some kind of a theory, mentally lining up the administrative strikes against the SEAL Team, the kind of small incidents that might have added up to a general exasperation with the bearded American tigers of the Iraqi desert. And there were, undeniably, several possibilities:
1. A lot of US servicemen, most especially in the Army, quietly resent the SEALs because they march to the beat of a different drum. They are allowed to wear their hair longer than everyone else, and often wear beards to fit in better with local tribesmen. They often address their officers on first-name terms. Also, that steel-edged brotherhood stands supreme; they place their lives in each other’s hands most days. Officers rarely if ever pull rank on their devoted warriors.
2. Team 10 had a battlefield incident in the not-too-distant past, and there was the normal inquiry. Certain military bureaucrats had almost fallen over themselves generating volumes of red tape connected to the incident.
3. Carlton Milo Higbie had built a “catapult,” meant to infuse some levity into the very serious wartime atmosphere, but not everyone found it funny. Working from some ancient Roman battle manual, the irrepressible, superintelligent SEAL managed to construct a huge siege weapon capable of hurling a hefty rock several hundred yards. The SEALs all thought this was hysterical, but there were those in authority who very definitely thought otherwise.
4. And somehow or another, a couple of big cans of diesel fuel intended for the generator were accidentally poured into the Camp Schwedler water supply, instantly poisoning it. Team 10 was not in any way responsible, but the camp’s problem of water, which now had to be brought in from the main Marine base, was just another pain-in-the-ass problem involving the iron men from Virginia Beach.
5. And now there was another problem: prisoner abuse, this time just a fe
w miles from Abu Ghraib. You could almost hear the collective groan emanating from commanding officers at the mere sound of that career-busting phrase, and they must have thought, TEAM 10! Jesus Christ! Not them again!
Because, although this was now 2009, only four years since the Abu Ghraib disaster, the mere mention of the words “prisoner abuse” caused an almost neurotic reaction among US service chiefs seen only rarely since the fall of Saigon in 1975.
No one would ever forget the crushing reaction of the US Defense Department when Abu Ghraib came to light—seventeen soldiers and officers removed from duty, eleven of them court-martialed, resulting in a couple of heavy jail sentences, one of ten years, another of eight.
Abu Ghraib saw the demotion of a brigadier general to colonel. It also saw the powerful Defense Secretary Donald Rumsfeld offer his resignation. And it all started with prisoner abuse. And Matt McCabe’s alleged bang to the guts of Al-Isawi had, in the opinion of several lawyers, triggered a drastic overreaction.
In truth, there could have been but three takes on why General Cleveland persisted with the courts-martial when it was plainly risky to do so:
1. Someone very senior was telling him to follow the international politically correct line, no matter what.
2. The words prisoner abuse had caused an entirely uncharacteristic loss of nerve at several high levels in the US military.
3. There was a strong feeling that Navy SEALs were getting too “untouchable,” and here, at last, was the occasion to teach them a short, sharp lesson, to show them that even they, the gods of US combat, were not above regular military law.
It was quite surprising how many of those defense attorneys were inclined toward option three. And there was one further point with which every last one of the defense counselors was in unanimous agreement.
The military authorities had jumped onto the wrong side of this argument very early on—too early—before they had even examined the facts or listened to the SEALs. And once the commanders had crossed that line, determined to establish “prisoner abuse,” there was no way back.
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 36
