It was a chorus that had echoed across the country in a hundred meetings and fund-raisers and in the great halls of the US Congress. And it was a chorus that refused to be stilled. And even with the military’s iron clamp on the release of information, that voice could still be heard echoing in the early morning quiet of this vast naval dockyard.
They drove past the security guard, and Matt hunkered down in the backseat and tried not to be recognized as reporters, broadcasters, and cameramen swarmed toward every incoming vehicle, trying to catch a glimpse or perhaps a even a word with the SEAL whose prosecution had enraged so many ordinary US citizens.
The media, though resolutely on the side of all three of the accused SEALs, had not quite lined up their ducks correctly. Their overall view remained steadfast: If Matt had walloped the terrorist, so what? The terrorist deserved it. And who cares anyway?
Curiously this was gratifying but by no means acceptable to the SEALs. Months later Sam Gonzales mentioned to his legal team that people had missed the point. The three accused did not wish for approval nor indeed support for a stray punch landing on Al-Isawi; rather, they wanted it plainly understood that none of them, Matt, Jon, nor Sam, had punched the detainee, that no SEAL would ever dream of punching a detainee.
That was why they had all gone to court-martial. It was also why a large group of SEALs were all lined up ready to march into that courtroom and stand with Matt against the forces of doubt and dishonor.
It was also why Matt was very gun-shy about the press. He was never quite sure how journalists would present this case to the public. And his lawyers understood they were not seeking dismissal on some technical point of law; Matt wanted total exoneration, just as his two teammates had been granted.
He did not want the question of the punch to be somehow held up in the air: even if he threw it, how could it matter? He wanted three things established and then hammered into a marble tablet: no punch, no punch, and no punch. Because there was no punch.
So the car left the chanting crowd behind and headed for the US Navy courtroom, a four-story granite stronghold that stands guard over military law in the Dark Blue section of the US Armed Forces.
Smartly dressed in his dress blues, Petty Officer McCabe walked with his family into the building and down the corridor into the courtroom where the charges against him would be heard and disputed, again and again, during the next four days.
The room itself resembled every courtroom in a thousand Hollywood movies: about a dozen rows of benches left and right, with a three-foot-high balustrade and a swinging gate in the center. The long table for the prosecutors was set to the left-hand side of the well of the court, closest to the jury, with the defense table on the right.
The judge, Captain Modzelewski, sat on a raised dais, directly ahead, and she greeted the SEAL from Ohio with noticeable respect. He replied succinctly: “Yes, ma’am.”
Matt sat between his four attorneys. The two Navy JAGs, Lieutenant Kevin Shea, and Lieutenant Kristen Anastos, were both wearing dress whites. On his other side were his civilian attorneys, the ex-US Marine officers Neal A. Puckett and Haytham Faraj, both wearing immaculately tailored business suits.
This represented a whole of lot of legal muscle for one possible whack. But right now Matt understood, perhaps above all other members of the Armed Forces, just what it might take to stop a shocking accusation once it had been given an unexpected green light from the high command.
He glanced back once to the now-full public gallery, and he could see Jon Keefe’s parents sitting close to his own. He caught his mom’s eye, and in a strange way that meant all the world to him. Pam smiled at him just once—a fleeting confirmation that she was still in his corner, right to the end, just as she always had been.
He could also see Echo Platoon’s senior chief, a very influential SEAL whose presence was highly significant and represented vital support for the accused man.
Katie Helvenston and Donna Zovko were also seated. These were the mothers of two of the murdered Blackwater security men who had been mutilated and strung up from the Fallujah bridge over the Euphrates. Jerry Zovko had been a former Army Ranger, and Scott Helvenston had been a former SEAL. Eight years after their barbaric murders both mothers still wept for their slain sons. Donna was still inconsolable as the full name of the Butcher of Fallujah was read out in open court.
Both men had been laid to rest in US military national cemeteries—Jerry, thirty-two, in the Western Reserve, near Akron, Ohio, and Scott, thirty-nine, in the Florida National Cemetery in Bushnell. But there was something so appalling in the manner of their murders that no one associated with either man ever fully recovered.
And no one ever forgot Katie’s remarks after the fifth anniversary of that notorious Fallujah ambush, when she finally blurted out that Al-Isawi’s men had decapitated her son and then cut out his heart. “How could anyone, how could they be so cruel?” she whispered, adding that DNA samples had to be gathered from Scott’s children in order to identify his body because he had been mutilated beyond recognition.
And now she would live through it all over again. And once more tears streamed down Katie’s face as Lieutenant Nick Kadlec rose to present the case for the prosecution of Matthew McCabe.
He explained to the jury that this was a prosecution that they did not want to hear. “But as the evidence unfolds,” he said, “it becomes a story you must believe.”
Matt never flinched as Kadlec added that Matt had failed to live up to Navy standards when he struck the detainee in the abdomen and walked away, leaving the prisoner on the floor, bleeding.
Almost as a parting shot, Kadlec confirmed that the detainee had his hands tied behind his back throughout his ordeal. “I urge you to do the right thing,” he told the jury, “and summon the moral courage to hold McCabe accountable.”
Puckett conducted the opening submission from the defense, and he immediately contended that Petty Officer McCabe was only doing his job, doing what all SEALs are trained to do, serving an Iraqi arrest warrant. He quickly added that the detainee’s mouth injury had begun as a canker sore and that any subsequent bleeding was self-inflicted and had nothing to do with McCabe.
He told the jury they would not be convinced beyond a reasonable doubt, “but you will believe he is innocent,” he said, “because Petty Officer Matthew McCabe is innocent.”
The prosecution then deployed the three-hour audio deposition of Ahmad Hashim Abd Al-Isawi, who by now had been charged by the Iraqis with masterminding the 2004 slayings of Jerry Zovko, Scott Helvenston, and two others.
And during this the court heard him deny any involvement with al-Qaeda or Hamas. He stated simply that US and Iraqi forces had raided his home and then taken him to a US base, where he was attacked “for five minutes.”
He claimed he was standing with his hands tied behind his back when he was hit in the stomach. He described how he fell down from the force of the punch and hit his face on the floor. He said he felt “pain in my face” and later tasted blood in his mouth. While on the floor, he said, he had been kicked several times with a boot-covered foot in his shoulder and back.
He said that even though he was blindfolded, once he hit the floor he could see enough from beneath his eye cover to realize his attacker was bare-legged and wearing shorts. At no time did he identify any SEAL as his assailant.
At the conclusion of Al-Isawi’s electronic deposition, there was of course no cross-examination, as he was approximately seven thousand miles away in a Baghdad military jail, and Matthew had waived his right to confront him in the courtroom. But the defense lawyers were well up to pace with the savaging that Reschenthaler had handed out to the terrorist during the Sam Gonzales trial.
And the jurors understood, like everyone else, that the terrorist had not been believed in either of the Iraqi trials. The still-contentious issue of his nonappearance remained immovable. The US government was never going to bring Al-Isawi into the United States; therefore, the case had neede
d either to be moved to Iraq, where he could appear in court, or it would stay in Norfolk, and defense would have to do without cross-examination.
The attorneys had decided there was no sense taking Matt back to Iraq to stand trial in a hostile environment. They would proceed in Norfolk without “crossing” Al-Isawi, whose total unfamiliarity with the truth was, after two trials, now an established fact.
This left the government with only one other card to play: the MA3 Brian Westinson. Again the prosecutors presented Westinson as a credible and reliable witness. But this was swimming against a flood tide of testimony to the contrary. So piece by piece Puckett dismembered his statements in the witness box. He pointed up the inconsistencies, the clashes on the timeline, the differences, great and small, in Westinson’s several statements and interviews.
As soon as the Washington attorney stood up to begin the cross-examination, well, the writing was on the wall for the prosecution.
Q. You’re nervous today, aren’t you?
A. Yes, sir.
Q. You’re nervous because you’ve testified twice before and weren’t believed?
A. No, sir.
Puckett compelled Westinson to outline the initial events of that morning, when he left the holding cell in search of the medical paperwork, and then,
Q. When Lieutenant Jimmy began his inquiry after the detainee was found to have a bloody lip, you told him there were some Team guys back there, but you did not tell him any names, is that right?
A. Yes, sir.
Q. So even though you knew Carl was heading over to the detention facility you did not tell Lieutenant Jimmy? Is that right?
A. Yes, sir.
The attorney then established Westinson’s somewhat-persecuted state of mind:
Q. You felt all eyes were on you, correct?
A. Yes, sir.
Q. You were also worried because you thought the detainee would run his mouth?
A. Yes, sir.
Q. You were worried to be found derelict in your duties, correct?
A. Yes, sir.
Q. Because, in fact, no SEALs should go back there to see the detainee, correct?
A. Yes, sir.
Q. And then you were interviewed by an agent?
A. Yes.
Q. You told him you saw a half-punch thrown by McCabe?
A. I saw McCabe do what he did.
Q. You said it was McCabe, someone on your own Team?
A. Yes.
Q. These guys were your friends?
A. Yes.
Q. It’s hard to do the right thing, isn’t it?
A. Yes.
Q. It takes courage, doesn’t it?
A. Yes.
Puckett, having established the actions of the young master-at-arms, now switched to Westinson’s official role as a Navy policeman.
Q. How was everyone dressed that morning?
A. I was wearing pants. I don’t remember what the others were wearing.
Q. Did you wear a badge on this deployment?
A. No. I never wore a badge.
Q. But, by training, you are a law enforcement officer?
A. Yes. But I was not trained in detainee ops.
Q. And you did not immediately report the misconduct you watched?
A. No, sir.
Q. And in fact you are guilty of dereliction of duty, as well as failure to report an offense under Navy regulations?
A. Yes, sir.
Q. And, as a law enforcement officer, you have a duty to stop and prevent crime, don’t you?
A. Yes, sir.
Q. Yet you did not tell Petty Officer McCabe to knock it off when you saw him throw a punch?
A. No, sir.
Q. You never said a word?
A. No, sir.
Q. You did not even threaten to report Petty Officer McCabe?
A. No, sir.
Q. But you say you had a conversation with the medic about the incident?
A. Yes, sir.
Q. And you say that Petty Officer Keefe had a stick?
A. Yes, sir.
Q. So the medic would have seen Petty Officer Keefe with that stick?
A. He should have, sir.
Q. And you said Petty Officer Keefe was banging that stick to scare the detainee?
A. Yes, sir.
Q. But you have not been charged with making a false official statement?
A. No.
Right here Puckett took a spell to demonstrate the utterly astounding fact that, despite the obviously doubtful conduct of his duties, no one had charged Westinson with anything. And Puckett continued harshly:
Q. Or false swearing?
A. No.
Q. Or perjury?
A. No.
Q. Or dereliction of duty?
A. No.
Q. Or failure to report an offence?
A. No.
Q. And you have not been charged with assault?
A. No.
And at this point Puckett switched back to the scene of the alleged crime.
Q. So the detainee is delivered?
A. Yes, sir.
Q. Then Petty Officers Sam, Keefe, and McCabe show up minutes later?
A. Yes.
Q. Then the medic needed paperwork and departs?
A. Yes.
Q. He is gone a few minutes—over five minutes—and you decide to go look for him?
A. Yes, sir.
Q. So you abandon the detainee, and both of you are looking for medical paperwork?
A. A lot of that stuff is foggy.
Q. Then you return to see Petty Officer McCabe strike the detainee, and you said in one of your statements, “I froze.”
A. Yes, sir.
Q. But we also know from your statements that Petty Officers Carl,
McCabe, Sam, Keefe, Jason, and Rob all were in the presence of the detainee without supervision?
A. Yes, sir.
Q. And Petty Officer Eric came in an hour later?
A. Yes, sir.
Q. So six or seven SEALs had direct contact with the detainee?
A. I suppose so, sir.
Q. But you did not accuse all of them, did you?
A. No, sir.
Q. But there was no reason for them to go back there?
A. No, sir.
Q. But you saw Petty Officer McCabe punch somebody?
A. Yes, sir.
Q. And you are a law enforcement officer?
A. Yes, sir.
Q. And you did not report that?
A. No.
Q. From the “abuse” around 0800, you never reported it?
A. No, sir.
Q. Well, why did you not report this crime?
A. It’s the command climate. I felt I couldn’t do my law enforcement job. The master-at-arms means nothing in their community.
Q. Did Lieutenant Jimmy scare you?
A. No, sir.
Q. But you chose not to report this to him?
A. I’m not happy I saw it. I wouldn’t have reported it if it didn’t happen.
Q. But in failing to report it, you lied to the lieutenant?
A. Yes, sir.
“No more questions,” replied Puckett.
With the Washington attorney finally through, Westinson’s testimony was once more seriously discredited. And now began the long parade of witnesses who would walk through the courtroom to present the defense position that Brian Westinson was a confused young man.
Everyone felt a bit sorry for him in many ways. But not in one way—he had graphically described the beating handed out to the terrorist and said he saw Matt do it. Many people would never forgive him for that. Because too many people believed it was not true.
First came Paul Franco, the Navy reservist who held the rank of petty officer 1st class and had been overall supervisor of all non-SEALs at Camp Schwedler, the men who provided the deployed SEAL Teams with backup work in logistics, construction, coordination, and so forth.
He explained to the court how Westinson’s imme
diate superior, MA1 Philip Cimino had left after a controversy over a force protection plan that left Westinson with a heavy workload, one with which he plainly could not cope. Some of Franco’s testimony was colorful, and he mentioned how he noticed Westinson, a few days after Objective Amber, walking through the camp “in tears, unshaven and disheveled.”
He asked what was the trouble, to which Westinson responded, “I hate this fucking place. This is a shitty deployment.”
“Well, what’s wrong?” asked Franco.
“Nothing’s wrong.”
But Petty Officer Franco swiftly found out that Westinson was ignoring some of his tasks in order to sit and watch the closed circuit camp protection system, and this was plainly “stressing him out.”
On the following day Franco again discovered the MA3 in tears, visibly upset. And again he asked him: “What’s up?”
This time Westinson responded, “This is all going to come back on me. This guy is going to make a claim that something happened to him.”
The conversation continued for a short while, and in Franco’s opinion Westinson “started to become unglued.” He made a few weird statements, like “Who’s going to marry me. ... I’m never going to get a job with the California Patrol.”
Petty Officer Franco advised him to tell the truth and to report whatever it was he knew to the lieutenant. At that time Franco had no idea there was an allegation of prisoner abuse.
Asked about Petty Officer Matthew McCabe, Franco replied, “I’ve worked with him. He’s an awesome guy.”
Defense then called the combat camera operator, Lynn Friant, who confirmed her several previous statements, particularly that Westinson was very stressed out both prior to and immediately after the mission, “stomping around like a child at times.”
She stated that when he was in this tearful and emotional state it embarrassed her, and she tried to get him to speak to one of the senior petty officers.
She explained that when the Marines finally pulled out of the camp, Westinson was the only MA3 on the base. And rather than have others assist him with the watches on the surveillance cameras, he stood many of them on his own.
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 38
