The trial began at 0900. The courtroom was relatively full, for a navy court-martial, and four members of the panel were already seated. Commander Surprenant and the accused officer were the last to arrive, before Captain Dunning himself took his place and said immediately, “Please proceed with the case against Lt. Cdr. Mackenzie Bedford.”
Capt. Paul Birmingham, who stood six-foot-five, climbed to his feet and stated, “Lt. Cdr. Mackenzie Bedford, of Foxtrot Platoon, SEAL Team 10, is charged that on the twenty-ninth day of May this year, in the Republic of Iraq, he did willfully murder twelve unarmed tribesmen, residents of the town of Abu Hallah . . . ”
Al Surprenant shoved back his chair, stood up, and snapped, “OBJECTION!”—which was just about unprecedented in the history of United States Naval justice, since the full charges had not yet been read, the prosecution had not uttered one word, and the defense counselor was somewhat rudely interrupting the force judge advocate general, one of the senior legal minds in the entire United States Navy.
Paul Birmingham swiveled around to face Al Surprenant, and Captain Dunning looked quizzical, turning toward Captain Birmingham as if to seek advice. No one knew quite how to treat this sudden violent swerve from the orthodox. But no one needed to. Al Surprenant made himself clear, extremely quickly.
“Captain Dunning, sir,” he said. “The word ‘unarmed’ cannot be permitted in this charge because no one has the slightest idea whether they were armed or not. No member of the United States armed forces, nor indeed of the diplomatic services, has even seen the bodies. Thus, the word ‘unarmed’ is, at best, hearsay, or, at worst, untrue. Neither are acceptable. I ask the word ‘unarmed’ be deleted from the charge.”
Captain Dunning turned once more to Paul Birmingham and said, “Advice, please.”
The force JAG, boxed into a legal trap, replied, “Sir, the matter was referred to the Naval Trial Services, who considered it appropriate for the word ‘unarmed’ to be included, since that is the essence of the accusation by the Iraqis against the U.S. It is not my place to step in and alter the charge, though I do see there is cause for some anxiety.”
“Captain Birmingham,” said Boomer Dunning. “Am I required to pass judgment on this? And have the charges altered?”
“You are not required, sir. But it is within your power to rule on it. Alternatively, you could just adjourn and have the matter referred to the legal department in the Pentagon.”
“I think Lieutenant Commander Bedford has suffered quite sufficient anguish without me prolonging it,” replied the trial president. “We will proceed. Commander Surprenant’s objection is sustained. I rule the word ‘unarmed’ will be struck from the record, on the basis we most certainly do not know whether they were armed or not.
“Paul, perhaps you will make the changes. Admirals Carlow and Gilchrist should initial their approval. Any problems?”
Everyone indicated agreement. And three minutes later Captain Birmingham began again: “ . . . did willfully murder twelve tribesmen, residents of the town of Abu Hallah . . . ”
“OBJECTION!” Al Surprenant was again on his feet. “Sir, no one has any idea whether they were residents of the town of Abu Hallah or not. We don’t even know their correct names. They might have come in by bus or camel or whatever to join the fight against the SEAL platoon. I object most stringently to the word ‘residents,’ which has connotations of stability and responsibility. For all we know, these were just wandering insurgents, troublemakers, residents of nowhere. Gunmen. And I ask the word be stricken from the charge.”
“Objection sustained,” said Captain Dunning. “Same procedures. Remove the words ‘residents of the town,’ and substitute ‘near the town.’ Then try again, Paul.” Captain Dunning added, somewhat archly, “If, of course, Mr. Surprenant has no further objections.”
Resignedly, Captain Birmingham again read out the murder charge. Al Surprenant nodded his assent. The force judge advocate general continued: “Lieutenant Commander Bedford is further charged with reckless conduct in the face of the enemy, and offenses against the Third Geneva Conventions signed in 1949.”
“OBJECTION!” called Al Surprenant. “The Geneva Conventions were originally drawn up and signed by sixteen nations, and they are designed to specify the conduct of nations at war, particularly in the realm of prisoners and the wounded. Nations have national uniformed armies, and, subsequently, codes of behavior, one to another. The conventions do not include the protection of lawless outcast gangs of tribal killers firing probably illegal missiles.”
Commander Surprenant hesitated, turning toward the president, who looked thoughtful and then said, “Please continue. I’m interested in this.”
“Sir, how can the defendant possibly have offended those codes if they do not apply to this terrorist conflict? You may as well call upon the Geneva Conventions to protect bank robbers or street hooligans. Plainly, the rules are designed to protect only national forces, fighting, formally, on behalf of a nation-state. And I ask that this charge be withdrawn because it does not, and cannot, apply.”
Captain Dunning said nothing. But he wrote notes on a legal pad. And then he ruled, “Counselor, I understand the prosecutor intends to challenge your opinion on this, on the grounds of human decency, the original objective of Geneva. For the moment I overrule your objection, but only for the moment.”
“Thank you, sir,” replied Al Surprenant.
“Very well,” continued the president. “Perhaps Commander Parr would outline, for the benefit of the court, the case for the prosecution?”
The Marylander, Harrison Parr, rose to his feet and instantly slipped into political mode. “Sir,” he said, “it gives me no pleasure to prosecute a United States Navy SEAL, a man of exemplary character, surely destined for the very pinnacle of our profession. It is especially difficult for any navy legal counselor to stand right here and attempt to destroy the career of such a man, particularly when his offenses, if offenses they are proved to be, were committed in the very obvious heat of battle. But the judicial traditions of the United States Navy demand such actions, the compulsory process of arriving at the truth. And it was ever thus. Gentlemen, the United States stands accused by a friendly foreign power of gunning down its citizens, citizens they claim were not armed, civilians who were in the process of surrendering.
“The basic facts are not in dispute. No one denies the Iraqis had their hands held high, and no one denies Lieutenant Commander Bedford ran forward and shot each one of the twelve men dead. We have already heard that the tribesmen may or may not have been armed. But the Iraqi government says they were unarmed. Every television report in the Middle East says they were unarmed. Every newspaper report in the Middle East, and many in our own country, submit that the twelve Iraqis were indeed unarmed. And it would be the duty of any Western democracy to examine those allegations thoroughly and, if found to be true, to take action accordingly and punish the miscreant.
“It is my sad duty to stand before you to test the validity of these accusations. And I call the principal eyewitness for the prosecution, Lt. Barry Mason of the SEAL team’s Foxtrot Platoon to offer his account.”
Lieutenant Mason, immaculate in his uniform, swore to tell the truth, the whole truth, and nothing but the truth. He confirmed his name, rank, and date of birth; stood rigidly to attention; and succinctly answered the questions of Harrison Parr.
I believe you were on combat duty on the west bank of the Euphrates River on May 29th this year?
“I was, sir.”
And were you under the command of Lt. Cdr. Mack Bedford?
“Not at first. I came with the first convoy on a rescue mission under the command of Lieutenant Harcourt. But we were hit with an antitank missile, and everyone in the lead tanks was killed.”
Lieutenant Harcourt?
“Dead, sir. I tried to save him because he got out of the tank, but he was burned alive. I was lucky.”
And what happened then, Lieutenant?
“We
tried to put out the fires and radioed for help. Lieutenant Commander Bedford’s convoy reached us within about forty minutes. And we came under his command.”
And then?
“Two more tanks were hit, sir, by the same type of missile. Fired from across the river, from the edge of the town.”
How do you know they were fired from across the river?
“I saw the last two come in, sir. We never had a chance.”
Would you say Lieutenant Commander Bedford was enraged by all this?
“He was very, very angry, sir. Some of his close friends were burning to death, and no one could do anything to save them. The heat was melting the fuselage of the tanks. Our other lieutenant was in tears.”
Were you in tears?
“Yessir.”
Were other SEALs in tears?
“Yessir.”
And were you not ashamed, as a SEAL officer, to be in tears?
“Nossir. We all were.”
Perhaps not the reaction one would expect from trained combat troops?
“You didn’t see it, sir. Our guys burning to death. If you had, you would not have made that remark.”
As you wish. Now perhaps you’ll tell the court what happened next.
But Lieutenant Mason was too upset to continue. Boomer Dunning immediately stepped in to save the young officer from embarrassment. He called a ten-minute adjournment and told the guards to bring a glass of water for the lieutenant.
When the court resumed, Lieutenant Mason was once more prepared for his ordeal, to relive the memory of that day in Iraq, and the recurring horror of what he had seen—the horror that haunted his dreams every night of his life.
And when the Iraqis began crossing the bridge, was there any doubt in your mind that these were indeed the same people who had opened fire on the U.S. tank?
“None at all, sir. They were the same people. We could see them on the other side of the river. There was no one else there.”
Is there anyone who can corroborate this?
“Certainly Lieutenant Commander Bedford, sir. He was sighting them through binoculars for about ten minutes before they tried to cross the bridge.”
Have you been told that? Or did you actually see him?
“I saw him, sir. He was standing right next to me. He was constantly checking out the enemy through the glasses.”
But how could either of you have known that the men crossing the bridge were the men who fired the missiles?
“OBJECTION! The question’s been asked and answered.” Al Surprenant looked extremely irritated, and was unable to prevent himself from adding, “Of course the lieutenant and his commander understood precisely who the men on the bridge were.”
“The objection is sustained,” interjected Captain Dunning. “But perhaps, Commander Surprenant, you would restrict yourself to a plain format of objecting, rather than providing us with personal elaborations.”
“I apologize, sir,” replied the counsel for the defense, somehow humbled but nonetheless looking absolutely delighted with himself.
Harrison Parr continued, but he was shuffling papers, playing for time, slightly concerned at the intensity of his legal opponent’s attack.
And was it at this time you first saw Lieutenant Commander Bedford make a run for the bridge with his rifle raised?
“OBJECTION! Counselor is blatantly leading the witness,” snapped Al Surprenant.
“Sustained. Please rephrase the question.” Boomer Dunning’s face, too, was concerned, worried at the level of bitterness this case was already revealing.
Lieutenant Mason, what did you see next?
“Sir, we were all staring at about a dozen men crossing the bridge.”
Were their arms raised in surrender?
“Their arms were raised. Whether or not they were raised in surrender I have no idea, since they were not military, just killers, and I am unfamiliar with their codes of conduct.”
Well, if you had seen American soldiers walking forward like that, would you assume they were surrendering?
“They were not American, and they were not soldiers. They were brutal tribal murderers who had just launched a sneak attack on us, and wiped out some of the nicest, most loyal guys you could ever meet. Don’t compare those bastards to Americans, sir. At least not to me.”
Boomer Dunning again stepped in, as the young lieutenant was becoming visibly upset. “Lieutenant,” he said, “I know this is very difficult for you. I don’t suppose many people could understand just how difficult. But the question was simple: if Americans had walked like that, would you have assumed surrender? You are at liberty to reply yes, no, or I don’t know.
Lieutenant Mason nodded and said, “Yes. I would think Americans were surrendering.”
Then why would you doubt the motives of the Iraqis walking toward you with their hands held high?
“Because that’s what they do, sir. They pretend to surrender, and they might be carrying suicide bombs, strapped to their bodies under their robes.”
Do you really believe that, Lieutenant?
“Believe it? I know it. An Iraqi surrender is just about the most dangerous maneuver in the book. To us, that is. They wait till they are near us, and then either detonate a bomb or open fire.”
Did Mackenzie Bedford believe that?
“OBJECTION! How could Lieutenant Mason possibly know the deepest innermost beliefs and suspicions of his commander?”
“Sustained. Rephrase, please.”
Was this a common belief among Special Forces serving in Iraq?
“Very definitely, sir.”
Well, Lieutenant, perhaps you would now tell the court what happened next?
“Yessir. We could now see the Iraqis moving forward. And Lieutenant Commander Bedford ran toward our side of the bridge and confronted them.”
Was his rifle raised in battle mode?
“Yessir. And I did think he was about to open fire on them.”
And what did you do, Lieutenant?
“I ran forward to try to stop him, sir.”
And you were obviously not successful?
“Nossir. I was too late. Lieutenant Commander Bedford opened fire on them.”
Did anyone else in the platoon join him in this exercise?
“I cannot say, sir.”
I mean, was there one other single person in Foxtrot Platoon who felt inclined to join in these cold-blooded murders?
“OBJECTION! Again the question has been asked and answered.” Al Surprenant was visibly furious. “Counsel is not only leading the witness, he is bullying the witness,” he added. “He is asking the same question in a way that demands the lieutenant state how other men felt. And how could he possibly know how other men felt?”
“Objection sustained. And would defense counsel kindly restrict questions to military facts? I am aware this case has already taken a curious turn, perhaps because Lieutenant Mason would far rather be standing here in defense of the accused rather than against him. Proceed.”
Harrison Parr smiled good-naturedly and said to Barry Mason, “The court understands this is very difficult and that you have been ordered to appear here and assist in the prosecution of Lieutenant Commander Bedford. You have been an excellent witness so far, and I am sure my learned friend, Commander Surprenant, will provide you with ample opportunity to express your personal opinions as we continue.”
“Thank you, sir.” That was not “Yessir”; that was “Thank you, sir.” And everyone understood the significance.
Lieutenant, do you remember what you said when you reached Mack Bedford?
“I said, ‘Don’t fire, sir.’”
I believe you also said, “For Christ’s sake, don’t fire.”
“I believe I did.”
And may I ask why you said those things?
“Mostly because I thought we might all end up standing right here if he did.”
Did you believe it was necessary to shoot them?
“I thought we might get
away with not shooting them.”
And did you realize the Geneva Conventions expressly forbid the shooting of surrendering personnel?
“OBJECTION!” Al Surprenant was on his feet now. “The revised Geneva accord also forbids the practice of troops pretending to surrender. I consider it utterly unreasonable to quote from Geneva so opportunistically.”
“Sustained. For the time being we will leave Geneva out of this.”
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