The barbarities of war ... are committed in situations where the ebb and flow of everyday life have departed, and have been replaced by a constant round of fear and anger, blood and death ... soldiers at war are not to be judged by civilian rules.
The one hundred-mile-long peninsula of Qatar juts upward like a giant thumb from Saudi Arabia into the Persian Gulf. There were, however, no thumbs-up for Matt, Jon, and Sam when they finally left Iraq and arrived in yet another ancient Arab land.
After three almost unbearably frustrating weeks, their questions came raining in to anyone who’d listen: And how about the letter of caution? Where do we stand with complete exoneration? Is this Westinson guy still making these accusations? Do we have a lawyer yet? Right now we’d take an out-of-work Bedouin.
But no one was listening. In the kingdom of Major General Cleveland military politics and the dreaded “politically correct” was elbowing its way to the front.
The case, which had begun before sunrise on September 2, when the blindfolded Ahmad Hashim Abd Al-Isawi had complained that a mysterious punch to the stomach had made his lower lip bleed, was now moving inexorably toward a courtroom.
On their first morning in Qatar the three SEALs were led into an office of the legal department, where a senior officer awaited them—a naval commander, legal assistant to General Cleveland. In turn a paralegal Army sergeant assisted him. According to Jon, this now made fifteen people who were all lined up alongside General Cleveland to help.
“We, on the other hand, had no one,” said Jon.
They were then taken to another room, where the sergeant placed one piece of paper in front of each man. It stated that Matt was charged officially with assault, the other two with dereliction of duty and making a false official statement.
“This was the first time,” said Matt, “any of us had seen the charges all written down, complete with references to Article 128, and 92 [dereliction of duty].”
Now it should be noted that there could not have been one living person who had breathed the desert air anywhere around the SEAL bases who was not acutely aware that all three of them were denying the charges vehemently.
And here were these three pieces of paper being thrust in front of them, with a total stranger demanding they each sign them, here and now, admitting their guilt.
“I’m signing nothing,” said Jon.
“Sign there,” repeated the paralegal, pointing to the signature space on Jon’s document.
“None of us are signing anything,” said Matt.
“You guys are being charged with these violations,” he replied. “That’s where you sign.”
Matt’s mind was in overdrive. He recalled the many conversations they had sat through in Ramadi, especially the one in which the authorities had seemed to accept that there was an element of doubt here that would almost certainly end with a letter of caution—not even a reprimand.
All three SEALs had intimated they would accept the mild rebuke of a naval caution letter, despite being completely innocent of everything. And now, here was this Army sergeant effectively throwing the book at them, leveling charges of the most damaging nature against them and trying to slide the gravity of the matter right past them, almost by sleight of hand.
“Just sign the papers, right where I instruct,” he repeated.
And quite suddenly the pure subterfuge of the military case against them and the methods being utilized in order to lead them into a trap stood starkly before all three SEALs. Jon, Matt, and Sam were suddenly very frightened. And they turned and looked at each other. Their lifelong goodwill toward the US military system of justice and fairness seemed to crumble away.
Simultaneously, they all recall, they knew they were up against a big and all-powerful enemy who would stop at nothing and would say anything in order to put them behind bars. Promises meant nothing. In the future innuendoes must be ignored. This new pressure point was a game changer.
Jon said simply: “They were trying to trick us. I don’t know why. And I never will. That Army guy just wanted to get us into a corner, where we were trapped, not able to escape. They were trying to deceive us, trying to pretend this was all routine stuff, just three little signatures. That was all they wanted.
“Three little signatures, just a little paperwork formality to them. No big deal. Yeah, right. Those signatures would have been a death warrant to us. And they knew it. But we knew all about signed warrants and how they signified life and death. There was nothing we didn’t know about signed warrants. And we refused to comply.”
“Sign here,” repeated the sergeant.
“Why don’t you go fuck yourself,” Matt almost growled. But instead he said, “We were told in Ramadi by the acting CO we were being given a letter of caution. Not a reprimand. And certainly not a charge, or a General’s Mast.”
Matt’s words were delivered with that straightforward respectful sense of protocol all SEALs are taught to employ when dealing with their superiors. But deep within Matt, as a direct result of this latest encounter, there rose a sudden and unmistakable iron curtain of pure defiance—battlefield defiance. SEAL defiance: I am never out of the fight. I will get back up every time.
Sam and Jon experienced the precise same thing—a kind of rising anger at being knocked back, over and over, by an enemy who was indifferent to their plight and cold to their helplessness.
“It was as if they were trying to rush the formalities as fast as possible before we got lawyers,” said Jon. “Because they knew we’d had no legal advice, no help from anyone. And I guess they understood that if we ultimately did hire lawyers, we would suddenly have a whole new set of legal rights.”
The sergeant said that he knew nothing about letters of caution nor anything about what had been said in Ramadi. But he would check that out right away.
When he returned he declared, “There’s nothing of that on the record. You guys are being charged, and you are to sign these sheets of paper right here.”
Again all three SEALs refused, and the sergeant retreated, leaving the three accused men in the room.
For a full minute they sat together in silence. A thousand thoughts swept through their minds, but not a word was spoken. “I guess we knew right there,” said Matt. “We were suddenly in a fight to the death against the high command of the United States Armed Forces. They were prepared to smash our lives to avoid accusations of US military bullying and prisoner abuse.
“All we wanted was to prove our innocence beyond all doubt and to regain our honor. Because that’s a big thing in the SEAL Teams. Every class had its honor man. That’s what we’re taught. And we had done nothing to deserve anything less.”
At midafternoon in the burning heat of the Qatar Air Base, 480 miles closer to the equator than the city of Baghdad, the SEALS were again summoned to a room adjoining the legal offices. This time the tactic was to speak to them individually and separately. Master Chief Lampard was now working with General Cleveland’s senior enlisted adviser, Master Sergeant Bob, and there was an unusual attempt to make this a more friendly atmosphere. Cans of soda and candy bars were laid out, and it began with just a general discussion about the case.
Matt has a vivid recollection of the day. “I allowed myself a cold Dr. Pepper,” he said. “And I was told that if I admitted my ‘crime,’ I would be helped. There would just be loss of rank and pay. However, if my Team 10 command wished to take away my Trident, these guys, Lampard and his Army cohort, would fly home on their own time and stand character witness for me, stating that I was a stand-up kind of a guy.
“Huh? Right about now I thought the whole place had gone crazy. For the past three weeks I’d been treated as if I was a murderer or something, now I’ve got a general’s senior assistant claiming that he’ll fly halfway around the world to swear to God I’m a good guy. Really!? What is it with these people?!
“I was not, however, fooled by this. Because I knew that Abu Ghraib had reared its ugly head all over again.”
Petty Officer McCabe knew as well as anyone that the alleged punch that felled Al-Isawi was not yet public nor was the al-Qaeda killer’s allegation of prisoner abuse. But these kinds of military secrets never stay secret for long. And when these allegations finally hit the airwaves, almost certainly through the Al Jazeera television network, the liberal press in the United States would jump all over it—on the side of the detainee, no matter what his background.
And the Pentagon would have one overriding desire: to have their spokesmen assure everyone the matter had been sternly dealt with. Heads had rolled.
“What they wanted,” says Matt, “if this went ahead, was moral righteousness, a confirmation that they disapproved of US bullying in Iraq. They wanted headlines that would state,
NAVY SEALS STRIPPED OF RANK
DISHONORABLY DISCHARGED FOR IRAQI PRISONER ABUSE
Lack of discipline will never be tolerated in the US Armed Forces.
—General Cleveland
“We, of course, agree with the general,” Matt said. “But there was still no reason to treat us as they had done so far. You can’t get better people than Jonathan Keefe or Sam Gonzales, and I hope they would say something similar about me.
“There was not one thing in our actions or backgrounds which could be held against any of us, nothing to justify this vicious assumption of our guilt. I could only conclude the authorities had their own agenda, and they were happy to make us sacrificial lambs.”
Sacrificial lambs have occasionally been slaughtered in various militaries down through the years, perhaps the most celebrated being the three Australian lieutenants in the Bushveldt Carbineers, all charged with murdering prisoners in the second Boer War (1899-1902).
The British Army’s chief of staff, Field Marshall Lord Kitchener of Khartoum, intended to bring the war to an end with a peace conference. But when it became public that Boer prisoners had been shot, Lord Kitchener provided a demonstration of his willingness to judge his own soldiers harshly if they disobeyed the rules of war.
He ordered a court-martial of the Australians. And he wanted a guilty verdict—no ifs, ands, or buts. Harry “The Breaker” Harbord Morant, Peter Handcock, and George Witton were doomed before they set foot in the courtroom.
In the 1980 film, Breaker Morant, there is a poignant exchange when Kitchener’s second-in-command explains to the Australian defense lawyer that the execution of his three clients would be a small price to pay for ending this long and bloody conflict on the hot plains of the Eastern Transvaal.
“Yes, I suppose so,” replied the lawyer, “Unless of course you happened to be one of the three Australians.”
“That was precisely how we felt,” said Jon. “Just because it seemed that no matter what we said or how many of our teammates verified our statements, there was a separate agenda, known only to the military high command, which deemed us guilty.”
There was also a quiet unease in the Iraq-based SEAL Teams that their brothers were being treated as though this was a civilian world, which it most certainly was not. And once more the words of Breaker Morant’s defense counsel, Major James Thomas, echoed down the years:
The barbarities of war ... are committed in situations where the ebb and flow of everyday life have departed, and have been replaced by a constant round of fear and anger, blood and death ... soldiers at war are not to be judged by civilian rules.
Those three Australians were not denying the killing of the Boer prisoners; rather, they were disputing their orders, and their defense was formidable. But it was all to no avail. Harry Harbord Morant and Lieutenant Peter Handcock were found guilty and swiftly executed by firing squad within days of the trial, outside the fort in Pretoria at sunrise, at six o’clock on February 27, 1902. Lord Kitchener personally signed their death warrants.
Both men declined a blindfold, and the Breaker’s last words were shouted, “Shoot straight, you bastards! Don’t make a mess of it!”
The younger Lieutenant George Witton was also found guilty but was released after three years in an English jail and returned to Australia, still heartbroken, to write the book, Scapegoats of Empire, which inspired both the stage play, the motion picture, and many, many books on the infamous court-martial.
Apparently blind to the inevitable surge of public outrage when SEALs of any rank are subjected to any kind of criticism or persecution, the military continued to go after Matt, Jon, and Sam. And one by one they sent them into that room with the soda pops and bizarre promises.
Jon’s memory of the proceedings casts the gravest doubt on the motives of General Cleveland’s staff. “They weren’t all that subtle,” he recalled. “They wanted me to say that Matt had hit the dude, and they didn’t seem to care much whether it was true, false, or made up. They just wanted me to say it and sign a paper that Matt was guilty of assault and that we were both guilty of dereliction of duty and accepted all charges.”
He was told, “Jon, this is not an interrogation. You can waive and revoke your rights. Then you can tell us off the record, if you like.”
“I just stood there,” said Jon. “And I was thinking, Do you guys think I’m that dumb, that I will just stand here and tell an outright lie about my buddy and teammate? I had nothing to say to them. So I said nothing.”
Jon was then warned this could go to “four-star level.” And he knew that meant to General David Howell Petraeus, the tenth commander of US Central Command, former commander of all multinational forces in Iraq, and future commander of US forces in Afghanistan.
“That was kinda big,” said Jon. “I simply could not believe how this thing had gotten utterly out of hand. Four-star level! What the hell were these comedians talking about? The punch that never happened on the lip of a lying little jihadist killer, who never had a bruise on him? And they’re calling in the head of the US Army? Someone, anyone, give me a break.”
It is not possible to exaggerate the effect all this had on Jonathan Keefe. His parents were God-fearing people, and his mother, Dawn, was proud of the fact that Jon had attended the same local Catholic church, Our Lady of Mount Carmel, in which he was both baptized and made his first Holy Communion a quarter of a century earlier.
That long religious upbringing in a family of strict moral codes was an important part of the young SEAL’s character. And, of course, there had also been the strict US Navy doctrine of the truth, the whole truth, all of the time. Lying was pure anathema to him: his parents, his parish priest, and the US Navy had combined to outlaw in his mind the very concept of lying.
This was a genuine stand-up guy. Like Matt and Sam. Ask either of them a question, you’ll get a straight answer. And now here were these uniformed legal eagles almost imploring Jon to tell a deliberate, Southern-fried, copper-bottomed whopper: that he had indeed watched his best buddy whack Al-Isawi.
Jon stood before his inquisitors, unblinking, shoulders back, and silent. And through his mind raced the phrase, They’re asking me to tell a lie.
And now he remembered Master Chief Lampard telling Jon that he had personally been investigated seven or eight times and had always manned up and taken the punishment. Lampard had added that he had known SEALs in trouble who had run up legal bills of $40,000 and still been found guilty.
“We know you have loyalty to your team,” he added. “But if you’ll just tell us the truth, that the allegations are correct, no one will get into trouble. All you need to do is to stand in front of General Cleveland and confirm what Matt did.”
Jon said nothing. Like Matt and Sam, he knew perfectly well that this was no longer some kind of a softball sparring match. This was hardball, and these guys were trying to get him to comply with their wishes, and he was damned if they were going to succeed.
They again assured Jon that he could revoke his rights and tell them off the record that Matt had struck the prisoner. “No paperwork will be necessary,” they said. They then went further than that and said he could re-invoke his rights and get back on the record.
Jon had not spent time at law school. He understood little of the finer points of trials and justice. But even he understood this was utter rubbish. Revoke his rights? Off the record? Re-invoke your rights? No paperwork?
Jon refused to answer.
And once more his inquisitors swerved onto a slightly different tack, urging him to accept what the US Army refers to as Article 15. The Navy has its own procedures for lower-level punishment, dating back to the days of sail. It’s called a Captain’s Mast, a method of non-judicial punishment (NJP) in which a sailor who has committed an offense appears before his commanding officer on board a warship and may be reduced in rank or pay or even discharged. He will not, however, face really serious punishment like jail or, in days of yore, the lash.
These days there is more often a procedure called Admiral’s Mast, in which an alleged offender may appear before a fleet commanding officer and admit the error of his ways. Again, the process is more or less unchanged—nothing as serious as court-martial but still requiring an admission of guilt. For whatever reason, in the US Marines, their NJP procedure is always called Office Hours.
US naval personnel only rarely refer to the Army’s very similar Article 15 because it only rarely affects anyone wearing dark blue. But in the case of Matt, Jon, and Sam, something very significant had happened. The case had moved over from naval jurisdiction to that of the Army. Those who mattered now were Major General Cleveland and his staff. And there was now a rumor that General Petraeus himself would be involved and, indeed, may be obliged to give the green light to any judicial matters involving the three SEALs.
Faced with the silent Jon Keefe, the inquisitors now urged him, over and over, to take Article 15, effectively the General’s Mast. They told him an admission of guilt would be ideal, all three SEALs could renege on previous statements involving the nonstriking of the jihadist, their “lies,” “dereliction of duty,” “false statements,” and so forth.
Instead, they should throw themselves upon the mercy of Major General Charles Cleveland. They again gave Jon reassurance that if he admitted he had seen Matt punch Al-Isawi, his own part in the debacle would be glossed over.
“Do you have any questions?” they asked him.
“No,” replied Petty Officer Keefe. It was the only word he uttered throughout the entire interview.
As he left the room Jon had only one thought in his mind: These people would do anything, say anything, promise anything, or, if necessary, threaten anything in order to get a confession. Obviously Jon had not been in the other rooms while Matt and Sam were being “persuaded,” but he had a pretty good idea they too were being lied to, tricked, and otherwise hoodwinked, not to mention humiliated.
This day had been a game changer, and now the gloves were off. There would be no more trust, no more cooperation, no more nice guys. From now on the three SEALs would fight tooth and nail to the bitter end—a state of mind in which they were all hard trained. There would be no surrender inside or outside the courtroom.
Jon, for the twelfth time, requested a Navy lawyer to help him, as had the other two. At this point, however, only he understood, after his third-degree going-over by General Cleveland’s legal staff, that this was all headed for the highest level of the military judicial system. Jon already knew he needed an expensive civilian lawyer, a ruthless courtroom operator who would protect him and get Westinson on that witness stand to tear his “evidence” to shreds.
The three SEALs regrouped and exchanged updates, agreeing among themselves that they had to get top-class civilian attorneys, skilled advocates who could punch holes in all the lies and distortions being leveled at them.
At this stage the authorities seemed to consider Jon an easier target than Matt. At least they apparently thought it might be easier to get him to say that Matt had whacked Ahmad Hashim than it ever would be to persuade Matt to admit to having done so. Wrong. Jon was as determined as any man could be. He would never even consider surrender.
There was also the slightly uneasy situation with Sam Gonzales, who was very senior, very highly regarded, and very important on the SEAL base. His evidence would certainly prove damning to the prosecution, as he had been there or thereabouts throughout all of the critical hours and encounters.
He would hear not one word against Matt or Jon nor against any other SEAL Team member. He had dictated a sworn affidavit that the men were completely innocent. He had been there with them at the holding cell and had seen everything there was to see. Also, he was taking a somewhat skeptical, sideways look at Westinson, who he thought was acting pretty “stressed out.”
Looking back, it was quite possibly the presence of Sam that was generating such urgency when questioning Matt and Jon. The military legal team was anxious to deliver a confession to their masters simply to avoid a trial, at which SEAL Petty Officer 1st Class Sam Gonzales was perfectly capable of blowing them all out of the water. Judge, jury, naval officers, courtroom guards, stenographers, and clerks—they would all believe him.
The trick was either to get Matt to admit his “crime” or for Jon to say he saw it as an eyewitness before the matter ever got to a court. They could then hang Matt out to dry in front of the general. And the Pentagon would have its headlines when the media had liftoff. A spokesman for the Navy would quietly confirm that they had dealt with the matter in the severest possible way. As was only to be expected.
Meanwhile the pace quickened. Within the hour the SEALs were once more summoned to the US Army’s legal offices. Matt was escorted into a different room and found himself again face to face with Master Chief Lampard and the army sergeant major, General Cleveland’s senior enlisted adviser.
And there, for the first time, he was formally told the assault charge was by no means the only accusation he faced. He was also being charged personally with dereliction of duty and false statements. No one had ever told him he would be arraigned on three counts, that he had three very serious, almost criminal charges lined up against him.
Matt stood tall, ramrod straight, facing his accusers, every inch a US Navy SEAL Team leader who only one month previously had courageously smashed his way into the armed headquarters of Iraq’s most dangerous terrorist and grabbed and “cuffed a wanted killer who had evaded capture for almost five years” but now found himself on the wrong end of Matt’s M-4 rifle.
“I suppose none of that counted anymore,” he said later.
And for the umpteenth time on this day Lampard and the sergeant major verbally tackled Matt, asking him twice more to confess.
Matt refused to answer. He just stood there, staring straight ahead. And for some reason his accusers thought his silence signified submission, and they were plainly expecting him to request clarification, maybe even advice about his chances before the general if he took Article 15.
What lenience could he expect? Did he need to admit all three crimes? Would he risk losing rank? Could he count on some senior character witnesses, men who would stand up for him in court, citing his impeccable record? Above all else, would they take away his Trident?
Never have two legal military interrogators been more widely off track. Matthew McCabe, like all of his kind, had an inner core of pure steel. He never flinched and never spoke.
Finally, Master Chief Lampard, fully expecting a climbdown, asked him persuasively whether he had any questions.
“No,” snapped Matt.
“And,” Matt recalled, “they both looked absolutely astounded. And I just left the room.”
It was precisely the same for Jon and Sam. Both men were given details of the newly written charges against them.
Jon was asked: “Questions?”
“No.”
“No.”
“We’d all had quite enough of their lies, tricks, glibness, and threats. Not to mention their stupidity,” he said. “None of us had anything to say, at least not to them.”
All three men had by now requested, over and over, the assistance of a Navy lawyer, just to have someone for the first time standing in their corner. They all knew this was a standard right for any naval personnel accused of anything. Jon had asked for Lieutenant Paul Threatt, who was based in Norfolk, but so far he had heard nothing.
Day after day Jon, Matt, and Sam heard nothing. And they were as alone on these days as they had been throughout their ordeal. Hour after hour they had faced experienced inquisitors, men of a higher rank who, so far as anyone could tell, had pulled just about every trick in the book to persuade them to make confessions—to sign admissions of guilt.
These were unfailingly presented as “no-big-deal formalities.” But these three smart Special Forces operators, though young and inexperienced in the guiles of martial law, knew instinctively their signatures would almost certainly prove fatal. Thus, they had not given way. And they had treated the offered pens and paper as bomb disposal men treat a ticking roadside IED.
And then their accusers summoned Jon to face a gimlet-eyed Army staff sergeant who thrust three legal documents in front of him.
Jon perused them swiftly and noted they dealt with three separate subjects. “They could hardly have appeared more legal,” he remembers. “Kind of papers you’d expect for the trial of a mass murderer like Al-Isawi, not me.”
The staff sergeant told Jon to initial each page where he indicated and then to sign them.
“I’m not signing anything until I have legal counsel,” replied the heavyweight SEAL breacher from Virginia.
The sergeant paused and stared hard at Jon, and then he softened a bit and continued, “You must sign them. And when you’ve done it, you can speak to a Navy lawyer in Norfolk.”
Jon just stood there, entirely alone, and flatly refused. But the staff sergeant came back, again and again, first cajoling, then persuading, then threatening. But Jon stood firm. “I am signing nothing,” he repeated, “not until I have counsel.”
Finally, when it was clear that this was going nowhere, the sergeant left and returned with General Cleveland’s head legal counselor, another member of the Judge Advocate General’s Corps (JAG), who selected one of the three sheets and removed it.
This left just the two charges, and for the last time, the sergeant told Jon to sign them, confirming the third one had gone.
And Jon, still patient and polite but nonetheless very scared, uttered the same phrase he had uttered so many times before: “I will sign nothing.”
At which point he was left alone, and after a few minutes the phone on the desk suddenly rang. Jon answered it, and a voice said, “I’m calling you from US Naval Base, Norfolk, this is Lieutenant Paul Threatt. I’m a Navy lawyer, and I’m here to help you.”
A tidal wave of relief swept over the big Virginian. It was the first time anyone in the world had stepped up to offer help to any of the three of them. Paul Threatt was the lawyer Jon had requested. One of his SEAL brothers had strongly recommended the attorney because he was a stern intellectual moralist and, if necessary, a courtroom brawler.
“It was as if my prayers had suddenly been answered,” says Jon. “For a few moments I couldn’t even speak.”
When he did he just blurted out his profound thanks and then told the JAG officer from Norfolk about the two legal sheets of paper he had been told to sign.
Very carefully, Threatt asked Jon to read the words out to him slowly. And it was clear to Jon that the lawyer was listening with rising anger. At the end of the section he snapped, “DO NOT SIGN THAT.”
Right here Threatt had some kind of sixth sense, because he could feel that the SEAL was very tired, mentally beaten down by days of questioning and persuasion. “There was a weariness in his voice which I did not like,” the lieutenant recalled. “Of course I did not know Jon. But even at that distance I could tell he’d taken some kind of a battering. I needed to be stern and very definite. Jon Keefe did not want to hear vacillation.”
And he repeated the phrase, “DO NOT SIGN THAT,” again and again, as Jon worked his way down the pages, dictating the accusatory words halfway across the world to the headquarters of the US Navy (legal department), where Lieutenant Threatt sat almost in disbelief at the cruel and ruthless way this Navy SEAL was being treated.
“I am afraid I had to be harsh with Jon,” he remembered, “Short with him. Staccato, rude. But I had to keep him focused. I did not want him to relax. And I just kept going, making sure he could never lose concentration. He probably thought I was some kind of ogre. But I never lost him, and his determination stayed high.”
Lieutenant Threatt later told Jon: “I knew from those initial moments that you were tired but completely innocent. How did I know? Don’t ask me. I just did.”
For the next forty-five minutes the two men talked, with Threatt explaining to Jon, chapter and verse, what it would mean if he accepted the General’s Mast (Article 15) and agreed to stand before Cleveland and confess that he had indeed lied to the authorities and been derelict in his duty of care to a captured prisoner.
“If you do that, it is very likely you will receive nothing much worse than a reduction in rank and pay and that your loyalty to your teammates will be taken into consideration.”
“I cannot do that,” Jon told him. “I have not lied, and I cannot say I did, because that wouldn’t be true either. They’ve already asked me to lie about a dozen times, and I can’t do it.”
Seven thousand miles away, Threatt smiled the smile of the legal predator. Rarely had he interviewed an accused man so plainly not guilty.
“Well, Jon,” he said, “Article 15 is the easy way out for you, the path with the least risk to you personally. The other way is court-martial. And that’s considerably more serious, because that can very easily involve jail. For Matthew, on an assault charge, that could mean five years, if the three of you were found guilty.”
“I cannot do anything which requires me to admit any wrongdoing,” replied Jon. “Either by my teammates or by myself. None of us is guilty of anything.”
“And that,” said Threatt, “leaves us with the courtroom. And there you will be given a clear opportunity to defend yourself, and your legal counsel will cross-examine the prosecution’s witnesses.”
“So if we want to fight it, we elect to be court-martialed?” Jon had swiftly grasped the situation.
“That is correct,” said Paul. “It’s a dangerous course of action because of the obvious downside with a guilty verdict ...”
Jon remembers interrupting: “Paul, there can be no guilty verdict. All three of us are one hundred percent innocent. Every SEAL Team member will stand up in court and speak for us. We already have those assurances. The prosecution has nothing except the word of the master-at-arms kid who deserted his post at least twice during that evening. And he’s a nervous wreck. I wouldn’t believe him if he told me it was daylight.”
Threatt calmly warned that “trials can go wrong, and innocent men have been found guilty ...”
“Yeah, but no three people in the history of the US Navy have ever been as innocent as us,” replied Jon. “Matt McCabe never laid a finger on that little Iraqi creep. Neither did Sam, and neither did I. Matt didn’t lie, Sam didn’t lie, and I didn’t lie.”
He added that this Westinson character had been wrapped up in cotton wool and protected, encouraged, and even guarded from the very beginning, “ever since he came out with that cockamamie story about Matt,” said Jon. “No one has corroborated it, and no one with a lick of sense believes it. That’s all they’ve got, Lieutenant Threatt. Nothing else.”
“Then, Jon, it’s my duty to advise you to go to court-martial. And there I will do everything in my power to defend you. I will come to see you as soon as possible, and you should consider the possibility of retaining a civilian lawyer as well.”
Jon knew nothing about legal expenses in the civilian world. He did, however, understand that it was unlikely to be cheap. “Are we talking $50,000, maybe $100,000?” he asked.
“Very possibly,” replied Threatt.
“Well, my family does not have that kind of money to throw around, and I really do not want to involve my family. The shame of my situation would be bad enough.”
“In this case it’s possible the money may come from somewhere unexpected,” said the naval lawyer mysteriously. He would elaborate no further. But already there was a seed planted in his mind.
Somewhere deep within him, Threatt knew the American public was capable of rising up in fury when they heard that three heroic Navy SEALs were being court-martialed in Iraq for allegedly punching the local mass murderer—the same man who in 2004 had publicly strung up the bodies of four US citizens after having shot and burned them alive—the Butcher of Fallajuh, no less.
Jon hung up the telephone and waited to consult with Matt and Sam. By the time they met, all three of them had spoken to naval lawyers, and it was decided they should make one last-ditch effort to get out of all this with a plea to the highest authority.
They each requested a General’s Call—a far less serious meeting with General Cleveland than Article 15. This was a meeting at which they could once again protest their innocence without signing a written confession, which was, in truth, abhorrent to them all—to Matt, because he had not whacked anyone, to Sam who knew darned well Matt had not whacked anyone, and to Jon because of the lies.
But all of this swiftly became irrelevant, because the request to plead their case in front of Major General Charles Cleveland was refused. And that concluded phase one of their ordeal. On the night of September 25, 2009, the three SEAL petty officers, Matthew Vernon McCabe, Jonathan Keefe, and Sam Gonzales, formally requested courts-martial, a drastic step in anyone’s fight to establish innocence.
A court-martial was the only avenue left open to them, as Major General Charles Cleveland would neither listen to nor even see them. And thus far the only intellectual drift any of the SEALs had seen from the General’s henchmen was either accusatory, disbelieving, manipulative, or occasionally scornful. A meeting with Cleveland was a dead end.
For the first time Jon, Matt, and Sam understood they must go to trial and plead their case in a room of strangers, before a judge and/or jury.
Still, at least the strangers would be neutral, which was a sight more than anything they had encountered thus far. And certainly they realized that a naval court-martial was an extremely serious matter, its origins stretching back to the days of sail, to the eighteenth century, when it adopted procedures from the 1749 British Naval Code.
Since 1865 there have been US naval officers belonging to the Judge Advocate General’s Corps. And today there is a worldwide organization of 730 JAGS providing legal and policy advice to the secretary of the US Navy in all matters concerning military justice.
The JAG Corps’ official insignia incorporates a silver “mill rinde,” the ancient French symbol of justice for all, under the law. Its purpose was to keep the great stone wheels of the flour mills separate and even, and thus it represents the fine balance the law must observe between the accused and the accuser. The English law also adopted the old iron mill rinde as a symbol of even-handed judgment.
Which all sounded excellent to Jon, who, right now, had his own JAG. Even in their short phone conversation, Threatt had made it very clear that he believed in his client’s innocence.
But Matt was scared. He had now been told how dangerous it was to appear before a court-martial on a charge that could lead to prison, but he saw no way out. He understood he may need a substantial amount of money to fund his own defense and did not have the slightest idea where to turn.
The fact was he had no one. And he might very shortly owe a law firm $100,000, which he did not have and, in the foreseeable future, had no way of getting. He did, however, understand he could not go into a courtroom charged with beating up a high-profile Iraqi prisoner without a civilian attorney in his corner.
In desperation he called his father and explained what had happened. He had no idea whether his grandfather had anything close to sufficient cash, but he had to start somewhere. He did not know whether Jon might somehow come up with the money, but the McCabes almost certainly could not. Of that he was sure. Neither could Sam’s family. Matt had no idea what he and Sam would do.
“So far as I could see,” he recalled, “I either found a way to raise tens of thousands of dollars or I might end up in the friggin’ slammer. Beautiful, right?”
Matt’s grandpa said he would, of course, help, but he could not raise anything like $100,000. And all three of the SEALs now understood the gravity of their situation. They tried to find details of the court-martial procedures on their computers, but it was not easy.
They did, however, discover there were three types of court-martial: summary, special, and general, the last being easily the worst, as it could not only impose dishonorable discharge, imprisonment, or even have officers fired, but it could actually sentence a man to death for certain offenses.
The summary court-martial was for relatively minor charges of misconduct and usually involved either a reduction in pay or a month in jail. The three SEALs had indications that their own case was anything but minor. The military was regarding it as a potential Abu Ghraib all over again, and the prospects were not pretty.
None of them thought they’d be whisked through a summary court-martial, but they did think they might land the special court-martial, the intermediate level–trial system. This involves a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers forming a jury. This court could remove two-thirds of a man’s pay for a year but, on the bright side, was not empowered to impose a sentence of longer than one year’s confinement.
What they did not know was that their request for a court-martial trial had sent a chill of apprehension through the upper reaches of the US High Command in Iraq, both Army and Navy. The words “prisoner abuse” doubtless caused obvious consternation.
And there was plenty of consternation, as seen when General Cleveland’s staff did everything they could to persuade the SEALs to change their minds. But there was no trust there any longer. Matt, Jon, and Sam believed they would be cajoled and lied to. Essentially they had had enough. And the Army command at Qatar had little option but to allow the case to roll ever upward.
There’s no point in allowing such a matter to take any other course; sending it upward takes the responsibility with it. Which was why, only four days later, an official communiqué was transmitted to General Cleveland’s office, “pursuant to his request to dispose of the allegations of misconduct by SO2 Jonathan Keefe, SO1 Sam Gonzales, and SO2 Matthew V. McCabe.”
It read,
I release jurisdiction to you, and authorize you to dispose of these matters in any manner you deem appropriate. This includes the authority to convene courts-martial at any level, up to and including General Courts-martial, and to refer charges concerning these individuals to any court-martial.
Signed: David Petraeus, General, US Army
“Four-star level, right?” said Matt, a touch sardonically, when he was informed. “No bullshit. From a phantom bang in the guts, straight through to the death penalty. That’s what I like about the Army—no half-measures.”
Three days later the critical document was sent from Special Operations Command Central, MacDill Air Force Base, Florida. It was headed, SPECIAL COURT-MARTIAL CONVENING ORDER 1-09. And it was signed by Charles T. Cleveland, Major General US Army, Commanding:
A special court-martial is convened and may proceed at Naval Base Norfolk, Virginia, or any authorized place as directed with the following members:
Captain G. O’REGAN, U.S. Navy; President;
Commander J. TORRES Jr., U.S. Navy;
Commander K. L. ICARIUS, U.S. Navy;
Lieutenant Commander C. R. LARSON, U.S. Navy;
Ensign B. J. BEYER, U.S. Navy; and,
Chief Warrant Officer 4 A. D. BOWER, U.S. Navy.
The Army might have taken over the reins of the proceedings, but it remained a US Navy issue. The exchange of letters between Generals Cleveland and Petraeus had nailed it all down. Matt, Jon, and Sam would stand trial in a naval courtroom, and if recent events were any guide, they would probably be tried separately.
That meant three separate courts-martial, at withering expense. But expense was no object in this case, not in the military’s relentless search for political correctness, for being seen publicly to have done the right thing—protecting a prisoner’s human rights—and being seen to have punished the “miscreants.” Which is all very fine if they are indisputably guilty.
But if they are not, that search for political correctness may prove catastrophic. Especially if Threatt’s instincts proved correct: the American public and media would loudly disapprove of heroic US Special Forces being dragged through the military justice system on the word of a notorious al-Qaeda terrorist.
That kind of uproar could cause lasting humiliation for the men who had elected to charge the three SEALs. And in the fullness of time, it may prove to be a thoroughly regrettable course of action, from which it might take years to recover.
Meanwhile it all remained a deep secret inside the confines of the military. And the only humiliating that was going on was directed squarely at Matt, Jon, and Sam.
The day after General Cleveland’s court-martial letter was delivered, SEAL Team 10 vacated Camp Schwedler and embarked the aircraft for home, Virginia Beach, with their tour of duty in Iraq completed. The three SEALs facing court-martial did not go with them, however, and this caused their families to be very concerned.
Instead, the three men were ordered to continue their back-breaking menial tasks on the Qatar base, one of which was to load by hand several tons of old furniture onto dump trucks. “That was a bit of a killer, four hours at a time in 130-degree heat,” said Matt, who added wryly: “But the really great part was the US Army never once made us work with a ball and chain around our ankles.”
The truckloads of furniture were not all. There was, on the base, a gigantic warehouse, the size of two football fields, and the three SEALs were made to sweep it out, by hand with brooms, from end to end until it was free of dust and sand.
They were then transferred to the gymnasium and made to clean and sanitize the equipment. They cleaned bathrooms and laundry rooms—“stuff that had not been done in a year,” said Matt. “Just for the record, we completed the lot in one week. I mentioned before, no one can do anything better than us.”
Long days of this kind of punishment were interspersed with regular sessions of lectures, as the Army’s legal men tried to persuade them to accept a General’s Mast. Apparently General Cleveland was prepared to see them only under these circumstances, when they would, of course, be required to “confess their crimes.” But the SEALs refused to answer, saying nothing and remaining stubbornly righteous to the end, while everyone waited for the court-martial papers to come through.
This happened on October 5, and at last, a few days after their teammates, Matt McCabe, Jon Keefe, and Sam Gonzales were released to return home. They flew commercial from Qatar to Washington and then down to Norfolk. They were under strict orders not to discuss the case with anyone.
But they did talk to their parents, who had no idea what had happened or why Team 10 arrived back without them. This was not a joyful reunion, and the atmosphere of gloom and dread would remain with them all for the next six months.
Shame affects everyone, especially a young serviceman whose honor has been challenged. It happens very rarely, but when it does it’s an insidious thing: My son is accused of assault and lying ... My son is accused of dereliction of duty ... Can he be guilty? ... Why would the US Navy do this to him if he were innocent? ... Can there be this much smoke without fire?
In these three cases the friends, relatives, and, especially, family members were dumbfounded. Matt, Jon, and Sam were such obviously upstanding people—the charges against them were unthinkable. No one was supposed to say anything about the forthcoming trial, but the rumors were rocket boosted as soon as Team 10 arrived home without them.
The families had been assured they were not dead, injured, or missing in action, but this served only to deepen the mystery, which then had about four days to burgeon into a cauldron of speculation, wild guesses, and despondency. The military is extremely competent at keeping a lid on things, and thus far, despite the breathtaking “news value,” not a word had leaked beyond the Virginia Beach and Norfolk Bases.
As the mystery for the families deepened, inside the Pentagon there was growing dread that the Army was about to hurl the Navy into the worst possible light, led by the convening major general, Charles T. Cleveland.
And those growing dreads grew more realistic every day. And the arrival of the court-martial papers in the first week of October effectively cast the one-month-old saga into stone. There was no going back now. All three SEALs were in the process of hiring civilian lawyers. The high command of the US Army temporarily sidelined the Navy.
The official papers were arriving almost hourly—statements, affidavits, and, worst of all, charge sheets. Jon was almost physically sick at the sight of them:
In that Special Operator Second Class Jonathan E. Keefe, SEAL Team TEN, Naval Amphibious Base Little Creek, Virginia, US Navy, on active duty, who should have known of his duties, at Camp Schwedler, Baharia, Iraq, on or about 1 September 2009, was derelict in the performance of those duties in that he willfully failed to safeguard a detainee, Mr. Ahmad Hashim Abd Al-Isawi, as it was his duty to do.
That was Jon’s violation of Article 92 (UCMJ). The violation of Article 107 was worse, alleging that
with intent to deceive, made to Special Agent John Stamp, Naval Criminal Investigative Service, an official statement, to wit: “I did not see anyone abuse or mistreat Mr. Al-Isawi” or words to that effect, which statement was totally false and was then known by the said Petty Officer Second Class Keefe to be so false.
They hit Matthew McCabe with those exact same charges and then added his alleged violation of Article 128:
In that SPECIAL OPERATOR SECOND CLASS MATTHEW V. MCCABE SEAL TEAM TEN ... on active duty, did at Camp Schwedler ... same date ... unlawfully strike Ahmad Hashim Abd Al-Isawi in the midsection with his fist.
Matt’s accusers were listed as Staff Sergeant Scott K. Ashcraft (US Marines), the man who had first brought in the charge sheet drafts for them to sign, and Commander T. C. Huntley, legal assistant to General Cleveland, the man who had refused to listen to one word of their protests of innocence and who had convened the courts-martial.
Those charge sheets represented the drawing of battle lines. In the coming weeks of October Jon hired the famous Virginia Beach no-holds-barred attorney Greg D. McCormack as his lead defense counsel in addition to the Navy JAG Paul Threatt.
McCormack had the reputation of a formidable court-martial trial advocate. He was himself a former member of the US Army’s JAG Corps, serving first as a military prosecutor and then as a defense counsel for three years until he left the Army in 1982.
McCormack had over thirty years experience of litigation and was licensed to practice law in all military appellate courts. His acknowledged expertise has always been in criminal cases, where his fast, adversarial manner has helped win the release of many, many falsely accused men.
And like Paul Threatt, McCormack made up his mind very swiftly about Jon. He would later state that from the very first he found it utterly impossible that the big Virginian would have dreamed of lying to the SEAL authorities or that he had seen his teammate Matt punch the blindfolded prisoner.
For McCormack it did not add up. Jon was about as blameless as any serviceman he had ever defended. And when the renowned courtroom aggressor felt like that about any accused man, he would go to the ends of the earth to protect him, if necessary. And that included Iraq.
Matt too made a major move toward hiring the very best legal assistance. He went to the former US Marine Lieutenant Colonel Neal A. Puckett, a thirty-five-year courtroom veteran, having been a former JAG and military judge with a towering reputation for combative court-martial expertise.
Puckett had represented the accused in a series of high-profile military cases. But the one that propelled him into national recognition was that of Lieutenant Colonel Allen West, former battalion commander in the 4th infantry division in Iraq and, later, congressman for Florida’s 22nd District Republican Party.
West had been facing charges of detainee abuse in Iraq in 2003 when, admittedly stepping out of line, he had fired a pistol straight past an Iraqi detainee’s head and frightened the living daylights out of him during a robust interrogation.
There had been mitigating circumstances—insurgents were plotting to kill West. In addition, the colonel believed the detainee had substantial information about terrorist activity and was determined to get it out of him.
He confessed to losing his temper and equally to taking a few whacks at the prisoner. But, in precisely the same manner as the case against Matt, Jon, and Sam, the entire thing got rapidly out of hand, despite no one having come to much harm. And the gunshot had worked: the prisoner immediately divulged plans for an upcoming attack that would probably have cost many American lives.
His CO, Major General Raymond Odierno, brought down the guillotine on the well-regarded West, immediately relieving him of command, which instantly killed his career. The colonel faced the prospect of resigning his commission just before qualifying for his retirement pension and benefits or facing court-martial, which could have brought him eight years in a military prison.
The colonel acknowledged he had not followed “proper procedures” but insisted that he had acted as he did to protect his men. He stated at his hearing that he would “walk through hell with a gasoline can in my hand to protect any one of them, if need be.”
Puckett leapt to his defense. In a memorable exchange with the military authorities he warned them of the rising anger of the American people and compelled them to back down. In the end Colonel West received a letter of reprimand from General Odierno and was allowed to retire from the Army with his pension and rank intact. In turn, people both within and outside the military congratulated Neal Puckett. And when Petty Officer Matthew McCabe walked through his office door in Alexandria, Virginia, Puckett could not help but draw sharp comparisons between the two cases, the main difference being that Matt had done nothing wrong in the first place.
Major General Odierno, promoted under Bill Clinton, had plainly shot himself in both feet, not the least of which for arousing enormous public fury at the cruel way he had tried to force an outstanding officer to forfeit his entire pension when he was just seventy-two hours short of qualifying.
The general should, of course, have just let the clock run out over three days and then quietly sent the colonel home with a letter of reprimand, with his pension for a lifetime of service intact. Instead, however, in the interests of “human rights,” and “being seen by the terrorists to be fair,” he had caused near-riot conditions among the right-wing media and placed the military in a most unfavorable, utterly heartless light.
So far as Neal Puckett could see, this Major General Charles Cleveland was well on his way to doing precisely the same thing if he wasn’t very careful.