Honor and Betrayal : The Untold Story of the Navy Seals Who Captured the Butcher of Fallujah -and the Shameful Ordeal They Later Endured (9780306823091)

by Robinson, Patrick

  Because everyone had immediately jumped all over the accused SEALs, treating them as though they were guilty. Master chiefs, commanders at every level, legal officers—everyone was trying their best to please their respective masters and, it seemed, paint Matt, Jon, and Sam in the worst possible light: bullies, conspirators, and liars.

  It would have been downright impossible for the military authorities finally to say, “Oh, we probably got this one wrong. Al-Isawi is an obvious liar, Brian Westinson is ... well ... unreliable, and Matt, Jon, and Sam can go free.” It had all gone too far, too quickly. And there was no way to retreat.

  The road ahead led directly to that famous SEAL combat zone, known colloquially as an “Oh shit! scenario.” And unlike the SEALs, the high command was not yet prepared to “engage the enemy.” That would have to wait for a courtroom, and in there, under the US Constitution, every accused person has a right to absolute fairness.

  And that was, after all, the only thing each one of the three charged SEALs had ever requested—a lawyer and a proper hearing.

  And when push came to shove in that Baghdad trial room, the government finally saw what it was up against—a half-dozen legal-armed attorneys, carrying sledgehammers of the law with which to obliterate the charges against their innocent clients.

  Thus the soured atmosphere between the various factions on the aircraft home to Norfolk. Thus the polarization of the entire court-martial fraternity—those who believed that justice had most certainly been done and those whose judicial noses had been put very badly out of joint.

  Jon and Sam slept soundly through much of the seven thousand-mile journey from Qatar to Washington. It was the first time either of them had slept soundly for more than seven months.

  Behind them, sitting with his naval JAGs, Lieutenant Kevin Shea and Lieutenant Kristen Anastos, was the one man for whom the endless ordeal was not yet over. Petty Officer Matthew McCabe was still only twenty-four years old and, in his own mind, still with a mountain yet to climb.

  Despite the two acquittals in Iraq, Matthew was still charged with the actual whacking of the terrorist. He alone had to face trial; he alone was charged with three separate counts—assault, dereliction, and lying. He alone may face military jail if found guilty.

  Moments like these, when your two buddies are free and cleared of wrongdoing, peace of mind hard to achieve. And all the old dreads and fears came crowding in on Matt, no matter how many friends and well-wishers were with him on that aircraft home.

  Right now he was as alone as he had ever been. No one else would face what he must face. No one else would stand before a military court and hear the satanic words, the UNITED STATES OF AMERICA v. MATTHEW MCCABE. No one else would feel the stark, helpless chill of accusations when none was deserved.

  The great rallying points of the US Navy’s slogan, “Honor, Courage and Commitment,” were hollow to him now, his short years of service no longer calling him to the flag. Matt’s questions were searching: Am I brave enough to face myself when I am so afraid? Can I stand up in this storm that I now must face? Or will these great forces, lined up against me, in the end prove too strong?

  On the aircraft he could see the prosecutors’ frowns. Anyone could tell they were less than happy. Where would they go from here? Would they somehow rally their own troops and charge back into the fray with new evidence and testimony to be used against him? Who else was there? Who might now step forward and swear before God that they had seen him thump the terrorist?

  Right now nothing would have surprised Matt. And not too far away sat the strange and silent figure of Brian Westinson, whose actions, to Matt at least, were beyond comprehension.

  There was some comfort for him in the two Baghdad trials’ outcomes. No one had believed Westinson in Iraq, and there was a fighting chance they would not believe him in Norfolk either. But Matthew had now seen justice at work. In the beginning he had thought it would be a simple task to tell the truth and make it obvious the charges were absurd.

  But this, his first brush with the law, had already taught him differently: all the guile, study, and aggression the attorneys could gather were required just to prove the obvious. The dark forces that walked the horizon had to be stopped, and that required a courtroom bludgeon, for they would not retreat on their own. That was the way of adversarial law as it is widely practiced in the free world.

  Matt needed every one of his four-man legal infantry. His lead JAG, Lieutenant Kevin Shea, was a tough courtroom advocate, a New Yorker, one of five brothers—two of them SEALs and two of them US Marines. Lieutenant Kristen Anastos had worked tirelessly on his behalf, and they would now join forces with Puckett’s law firm in Virginia, bringing another new fighting force into play.

  He was Puckett’s law partner, Major Haytham Faraj, a twenty-two-year veteran of the US Marine Corps, an enlisted man who had come up through the ranks—mortar section leader, Fifth Marines, platoon sergeant (weapons); deployed to Operation Desert Shield and Desert Storm, and distinguished staff sergeant.

  Major Faraj then attended the Military College South Carolina (the Citadel), where he graduated magna cum laude and was commissioned in 1995, later to be assigned to Third Battalion, First Marines, becoming a company commander. He received his juris doctorate degree (cum laude) from the American University College of Law in Washington, DC.

  A fluent Arab speaker, Major Faraj began his career as a trial attorney in the Marine Corps, rising to senior defense counsel at Camp Pendleton, California. By the time he came on board for Matt’s trial, he was Puckett’s partner, slightly outranked by the former lieutenant colonel but nonetheless a formidable defense counsel force in any court-martial.

  “My kind of guy, right?” muttered Matt to himself on that long, largely sleepless journey home. And even as his worst dreads churned in his subconscious, the bayonet-sharp mind of Faraj, a military weapons expert, was preparing the first of his legal missiles, and this one was aimed straight at the heart of SOCCENT on MacDill Air Force Base, Florida, home of Charles T. Cleveland, major general, US Army, commanding.

  In short, the ex-Marine major was suggesting that the Major General, who had convened these trials, do himself and everyone involved a huge favor and dismiss these “untrue allegations” against SO2 Matthew McCabe.

  It was a personal letter written on the headed paper of the Puckett and Faraj Law Firm on Jamieson Avenue, Alexandria, Virginia, exquisitely timed to hit while the US-based brass were still reeling from the results of the failed courts-martial against Sam Gonzales and Jon Keefe.

  The letter was argued immaculately, as would be expected from an attorney as battlewise as Faraj. It sought not to trap the general in a corner from which there was no escape but rather to appeal to his long experience as a Special Forces commander and a lifelong leader of men—American men, that is.

  After so many triumphs in the bear-pit of a criminal courtroom, where he’d delivered so many pleas couched in harsh, confrontational terms, Faraj also knew how to take his foot off the gas pedal when the occasion demanded.

  His private letter, in full, to the general, read,

  Dear General Cleveland,

  I write to plead the case of SO2 Matthew McCabe. This is not mere posturing, and it is not lawyering. It is a former serviceman pleading the case of a current service-member. It is one warrior pleading the case of, and to, another warrior.

  Indeed I am a lawyer; and it is true that I represent Matthew McCabe, and have an interest in seeing this case resolved in his favor. However, before I became a lawyer, I served 16 years in the infantry as an enlisted Marine, and then as an officer. I have deployed numerous times, served in combat and held several leadership and command billets.

  I have analyzed this case from every angle in as detached and objective a manner as I could; given my connection to it. I went so far as to have Matthew McCabe submit to an independent professional polygraph exam, the report of which I attach.

  The polygraph confirmed what I concluded,
and what Matt McCabe has said all along. He did not hit anyone. I cannot answer why the detainee says he was abused, I cannot explain MA3 Westinson’s version of the facts. But one thing remains certain: Matt McCabe is innocent.

  SEALs and other Special Forces have no need to abuse. They are too disciplined and too professional. You know this. By my count you have commanded six different Special Force commands and units. You know these types of men better than anyone. They are aggressive, tough, dependable, and, most importantly, honorable. They are serious men, doing serious business. They would not betray the trust you placed in them.

  I am asking you not betray the trust Matt McCabe has placed in you. He became a SEAL knowing that he was joining the ranks of a very few special men. He knew he would be exposed to harm on the battlefield. He willingly volunteered. He understood that he and his brothers may at times come under scrutiny, and criticism, for doing their job. But he believed that you, and his other officers, would protect him, for so long as he did what he was supposed to do.

  Matt McCabe was doing what he was supposed to do. He arrested, and transferred a very bad person to the authorities. He did not abuse him, or in any way act in an unprofessional manner. Yet today, he finds himself facing serious charges that may end his career, take his liberty and ruin his life. Will you protect him?

  I recognize that as a commander, you have a duty to investigate allegations of misconduct, but you also have a duty to prevent frivolous prosecutions, and unsubstantiated charging. Two of your sailors, Keefe and SO1 Gonzales, have been acquitted of the unsubstantiated charges; another remains. He loses sleep, suffers from the hurt of betrayal, and feels confused about why he must go through this process, because he has done nothing wrong. He has a talented defense team, but that guarantees nothing.

  At the end of his trial, he may very well stand guilty of an offense he did not commit. He would have a federal conviction. He may go to prison. He may be discharged, with a bad conduct discharge, in spite of his honorable service. He may lose his rank, and have to return home dishonored and betrayed.

  Has it not become clear that these SEALs did nothing improper? A jury and a military judge, in the cases of Gonzales and Keefe, respectively disbelieved the version of the facts sponsored by the detainee and MA3 Westinson.

  And I believe you will find the conclusions of the two courts, that no misconduct occurred, persuasive enough to move you to dismiss the charges against SO2 McCabe. I also attach the polygraph examination we gave to Matt. It was administered by a certified polygrapher, but if you continue to have doubts, I invite you to speak to Matt personally.

  As a former Marine, former warrior, and officer of the court, I want to assure you that Matt has maintained the same version of the facts all along: he never abused the detainee.

  It is my sincere hope that you will end this matter by dismissing the charges against SO2 Matt McCabe. Protect your Sailor from the untrue allegations, and end his nightmare.

  Semper Fidelis,

  Very respectfully,

  Haytham Faraj, Major, USMC (Ret.)

  Faced with that and with the flat-out rejection of the two courts-martial, General Cleveland nonetheless elected to ignore the onrushing judicial tide. He told Faraj he was allowing Matt’s trial to proceed. The twenty-four-year-old Echo Platoon Team leader would face the jury in the next two weeks, in Norfolk, under the guidance of the senior judge, Captain Moira Modzelewski.

  This would be a very formidable courtroom. Judge Modzelewski had recently been appointed to serve as the presiding officer of the Guantanamo Military Commission that would sit in judgment over the detained al-Qaeda suspect, Noor Uthman Muhammed. Captain Modzelewski was a world-class authority on terrorists as well as US law. Generally speaking, hers would not be the ideal forum to convince the judge that Al-Isawi was anything but a vicious little desert murderer and about as trustworthy as Colonel Gaddafi.

  Captain Modzelewski had studied at the University of Virginia Law School and at the Naval Justice School. In 1989 she was appointed as an assistant professor at the US Naval Academy in Annapolis. She was also pretty adroit at nailing down trained liars, and when she finally had the heavily guarded Noor Uthman in front of her at Guantanamo, she subjected him to a grim two-hour grilling just to establish that he understood the meaning of the word “guilty.”

  She fired a barrage of questions at him, all starting with the phrase, “Do you understand?” Finally he was allowed to plead guilty, thus averting a sentence of life imprisonment. But Captain Moira had established one lifelong rule for her courtroom: do not lie to this judge, because you will, judicially, be hung out to dry.

  This was not at all good news for Ahmad Hashim Abd Al-Isawi. But it was an almighty plus for Matt, his four lawyers, and the tight-knit platoon of SEAL warriors who would stand shoulder to shoulder in unshakable support of their Team 10 brother.

  There was barely a week between the arrival home of the court-martial aircraft from Iraq and the start of Matt’s trial. And before it began Puckett and Faraj came charging in with an instant motion to dismiss, both attorneys plainly indignant with General Cleveland’s short, sharp refusal to even consider stopping the trial.

  Their case for the defense was based on a report on the O’Reilly Factor on FoxNews, presented by Geraldo Rivera, in which he quoted sources “very close to” General Charles Cleveland alleging that he was pressured to continue with the trials despite public outrage and two not-guilty verdicts in the cases of Petty Officers Gonzales and Keefe.

  Puckett and Faraj thus demanded the case be dismissed because of “unlawful command influence,” the inference being that an even higher authority had leaned on the general and told him he was expected to allow Matt’s court-martial to proceed.

  This particular possibility in US military law is heavily frowned upon, categorically banned from happening. In some cases the merest suggestion of this kind of “insider trading” has been resolutely dealt with in the defendant’s favor.

  This one, however, was more evenly weighted. And the prosecution countered strongly, arguing that FoxNews had not provided sufficient objective facts in their report to warrant the dismissal of the case.

  Judge Modzelewski accepted the prosecution’s argument, agreeing that television stations need only rumors to allow them to run the story. That is not good enough for a US court of law, where evidential requirements are about one hundred times more stringent.

  She dismissed the defense motion not for the lightweight methods of modern journalism but because she held that General Cleveland could not be held responsible for the continuation of the trial and because Matt himself had been given the option of nonjudicial punishment but chose instead to go to court-martial.

  Just how little the military judiciary had played this angle was actually quite alarming. A naval nonjudicial punishment carries the assumption of guilt and is almost certainly a career wrecking ball. The three SEALs were admitting nothing, so the court-martial was their only option to establish total innocence. And for them nothing less would suffice.

  Anyway, on Monday morning, May 3, Judge Modzelewski threw out the motion, rejecting the FoxNews report.

  Puckett and Faraj were back on their feet in a flash, bringing a second motion that asked for a new transcript of Al-Isawi’s deposition, the one taken in Baghdad that would constitute his testimony in absentia in McCabe’s trial.

  Al-Isawi was a prosecution witness, and the government had provided the translator. Urged on by Reschenthaler, Puckett and Faraj understood only too well the critical nature of any Arab translator who might have been either dumb, deaf, or crooked, and they wanted a new one to listen to Al-Isawi’s audio testimony. And this might have taken another day.

  But defense did not care how long it took, because both lawyers realized that the Arabic translator might have said anything. Faraj had already suspected that in pretrial depositions the translator seemed to be asking his own questions and ignoring those that the attorney posed. He told this to
the judge, protesting that it was against the rules, and he provided a totally unreliable and untrustworthy deposition.

  The defense wanted a brand-new linguist, with no prior knowledge of the trial and with an unbiased way of presenting the answers from the shatteringly dishonest terrorist.

  Judge Modzelewski agreed with that and instructed the prosecution to provide a new translator to listen to Al-Isawi’s audio testimony, even if it did take extra time, before jury selection the following day, Tuesday. This meant that the trial would probably now take up the entire week.

  This was the most likely outcome, because all of the battle lines had been hard won. Prosecution and defense had been, effectively, daggers drawn for months on end. And when the trial finally began on Tuesday, May 4, after jury selection, the pure tension of these long, argumentative proceedings could be seen.

  An eight-man US naval jury was duly selected—four enlisted men and four commissioned officers. None of them were SEALs. The panel comprised various grades of seniority: one Navy petty officer 2nd class (equivalent Army sergeant), one Navy petty officer 1st class (equivalent Army staff sergeant), one Navy chief petty officer (equivalent Army sergeant 1st class), and one Navy senior chief petty officer (equivalent Army master sergeant).

  The officers were a lieutenant JAG, a lieutenant, a commander, and a captain—every one of them was male except the captain.

  At eight o’clock that morning Matthew McCabe, in company with his father, Martin, his mother, Pam, and fashion-model sister, Megan, arrived at the Norfolk Base, where a large protesting crowd was assembled at the gates, holding banners aloft and chanting his name. Some had been there the entire night. Tents were still erected, a speakers’ forum had been established, and Matt could see a banner that demanded, STOP THIS WICKED COURT-MARTIAL. And he could hear the voice of the American public chanting his name, over and over: “MATTHEW... MATTHEW!”