THE OUTRAGE OF THE AMERICAN PUBLIC
A destruction of brave men’s lives was right now in the forefront. It was in the unfathomable malice being directed at Matt, Jon, and Sam. And for what? Was this political? Was the military being ordered to court-martial these men?
Thursday, December 10, 2009, was a critical day in the court-martial proceedings. It was almost five weeks since the defense counselors had filed their formal request for discovery, those sworn legal statements made by all the SEALs who had been involved with Objective Amber and, for that matter, anyone else who had been near the holding cell where Al-Isawi was held prisoner.
Two weeks had passed since the government had filed written response on the subject of discovery, warning that the documents may be classified but assuring the lawyers “that a ‘review’ was being expeditiously conducted at that time to determine classification status of any information appertaining to the case.”
They checked. And perhaps in response to the burgeoning public uproar, on that Thursday the government was now forced to make a decision: to proceed or not to proceed against these American fighting men, each one of whom wore the flag of the United States both on his battle dress and on his heart.
To proceed would be to expose them both to the public and to the United States’ enemies. For the enemy to recognize these men is plainly dangerous for them.
And now the military had a critical decision to make, because to proceed with these courts-martial would thrust the names of the three accused into the public domain. Worse yet, their names would practically go up in lights.
Obviously all combat SEALs loathe and detest any form of publicity. They hope and pray that when their days in the frontline of US offensive forces are finally over, they will be free to live their lives in peace and privacy with their families. God knows that if anyone deserves this, they do.
But the situation surrounding Matt, Jon, and Sam was one of the worst ever. So far as America’s Middle Eastern enemies were concerned, these were the men who had grabbed the legendary Al-Isawi and then apparently beaten him while he was handcuffed and defenseless. If these turbaned gangsters could knock down the World Trade Center, they might have a passing interest in the identities of the men who grabbed the Butcher.
This was the dilemma that the US government and its military high command faced. And that Thursday afternoon found many people who occupy many high places pondering whether to release to the defense lawyers the SEALs’ handwritten statements, knowing it would effectively throw the three SEALs into the public wilderness, thereby destroying their God-given anonymity.
Lieutenant Paul Threatt, who was concerned only with the SEAL combat warriors’ reputations and safety, thought privately: This could end today. I don’t think the Pentagon is going to allow this to happen.
These were his seriously troubling thoughts. Threatt’s business involved the lives of these individuals—their sorrows and fears, their characters and their honesty. He was massively concerned about the welfare of his client, Jon Keefe, and no less so about Matt and Sam. He believed the Navy had an obligation to protect their identities, specifically from sly and cunning Al-Qaeda killers.
“Nothing the US Navy did could possibly justify revealing precisely who the men were—the combat warriors who grabbed the Butcher,” he said months later. “I was certain in my own mind the military too would be fully aware of that and drop the charges.”
But they did not. And Threatt never quite forgave them for that. The following afternoon, Friday, December 11, presumably after many hours of thought and discussion, the Navy elected to let matters go forward. They confirmed the classification review had been completed and had the newly unclassified documents hand carried to Greg McCormack’s law offices in Virginia Beach.
This was such a drastic step, allowing for the first time the innermost core of the proceedings to be seen beyond the frontiers of the US military. The die was surely cast. By releasing this information, the government had thus decided to come against Matt, Jon, and Sam with the full and majestic power of military law—to hell with the consequences.
And they had done so with the full knowledge that a chain of high-risk events would now be set in motion. This also meant that now, at last, the defense lawyers were able to pore long and hard over the written statement made by the young master-at-arms, Brian Westinson.
And before the end of that day the growing battalion of attorneys lined up for Matt, Jon, and Sam were preparing to load weapons to start blowing gaping holes in Brian’s wavering recollections of that early September morning in the Camp Schwedler holding cell.
To most of the experienced legal minds it was inconceivable that the military would have condoned this. Uniformed US commanders do not take plain and obvious risks. That level of caution is ingrained into their DNA, particularly when dealing with the lives of men under their command.
And if ever the destruction of brave men’s lives was right in the forefront, it was right now—in the unfathomable malice being directed at Matt, Jon, and Sam. And for what? Was this political? Was the military being ordered to court-martial these men?
What other explanation was there? Except that politicians, occupying the great offices of state not to mention chauffeured limousines and tables at the most expensive restaurants on earth, must have been calling the shots. Were they quietly ordering the ruthless sacrifice of the three SEALs in order to pave the way to a better political dialogue with the Middle East?
Perhaps they were. And a nationwide quasi-demonstration of US fairness to its prisoners was all very fine. Unless you happened to be Matt, Jon, or Sam, all of whom stood to be ruined if found guilty of prisoner abuse, failure of duty, lying, scheming, plotting, and God knows what else.
And at this point everyone remotely involved in the project to protect the three SEALs was, in a word, confounded. The lawyers began to find discrepancies in Westinson’s statements, and many, many SEALs were declaring they did not see anyone attack Al-Isawi. In their opinion no one had hit Al-Isawi; indeed, none of them would dream of hitting any prisoner—never had, never would. And some of them had been with Matthew McCabe and were prepared to stand up in court and swear to God he’d never lifted a finger against the jihadist.
Over in the great hall of the Capitol, Dan Burton was nothing short of mystified. In his view it was impossible that a Major General would dare to write a letter suggesting that the elected Congress of the United States did not really know what it was talking about, that it was relying on inaccurate press reports, and to follow all of this with a short, rather lofty lecture on the general’s perceptions of fact and duty.
The thought was inescapable: someone of immense authority may have been standing in the general’s corner. There were some seriously heavyweight signatures on that congressional protest, and they had been dismissed out of hand. The question was: Who had done the dismissing? For in this wildly inflammatory instance it was surely a far superior being than a two-star Army general based way down on the west coast of Florida.
This had become an issue of momentous importance, with a ripple effect currently lapping at the Pentagon’s E-Ring, where the most senior officials sat, and in the highest echelons of the US media. Everyone was talking about it. The courts-martial of the three SEALs had made the front pages of influential publications in America, all of them indignant, most of them incredulous.
The very reputation of the US Armed Services was being kicked around. The military could not possibly have wished this to continue, unless they were as dumb as their detractors suggested. Which, incidentally, they most certainly were not.
Burton, who was only just on the north side of outraged at the treatment Matt, Jon, and Sam received, decided to give himself a cooling-off period through the Christmas vacation before drafting a reply to the major general. He knew he had to be calm and collected, statesmanlike. But with every passing hour he was handed massive evidence that the country was with him.
The Indiana congressman launched a website along the same lines as that of Graham Ware’s SupporttheSEALs.org, and in just a couple of weeks it had thirty thousand followers. Responses were cascading in at more than two thousand a day, every one of them appalled at the way three Navy SEALs, all decorated in combat, were being treated.
And the avalanche of press coverage was by no means restricted to tabloids and sensation-seeking daily publications. This had already hit the pages of the New York Times, the Washington Post, the New York Daily News, and the Boston Globe, not to mention the 174-year-old Toledo Blade and the almost-as-venerable Cleveland Daily Gleaner (Matt McCabe’s hometown area in Ohio). Among the national wire services the members of the Associated Press were huge supporters of the accused men.
Among the news organizations, all of which informed influential minds across the United States, were Cybercast News Service (CNS) based in Virginia, a conservative website that was swiftly on top of the story, detailing the two congressional letters to Robert Gates and General Cleveland, with particular emphasis on the opinions of Congressman Rob Wittman, who represented Jon Keefe’s hometown area of Yorktown, Virginia.
CNS quoted Mr. Wittman thus: “One of these SEALs is a constituent of mine, and I and many of my colleagues are concerned with the message this sends to our soldiers, sailors and airmen, who serve in harm’s way every day. They risk their lives in dangerous and uncertain situations—I am eagerly awaiting the Secretary of Defense’s response to the letter I signed in defense of these three SEALs ... I do not believe the prosecution of these men is warranted.”
The Navy Times was another highly regarded publication that plainly disapproved of the courts-martial. A weekly newspaper also based in Virginia, it provides information and analysis to active, reserve, and retired US Navy personnel, including distinguished former commanding officers.
And the editorial team was swiftly into its stride the moment the story broke, immediately going to Matthew’s lawyer, the esteemed Neal Puckett. He told them, “The SEALs are being tried, essentially, for allegedly giving the detainee a ‘punch in the gut.’
“They are all together, and they all maintain they are innocent of the charges,” he said, before adding, “In a combat environment the handling of a detainee ... these things happen all the time, and can easily be justified as maintaining control.”
These military Times newspapers are the most widely purchased publications in all Army and Air Force Exchange Service (AAFES) shops on US military bases worldwide. A measure of the enormous size of this franchise is, perhaps, its forty-five thousand employees and thirty-one hundred shops in more than thirty countries.
They run the largest military-base post office in the world in Fort Campbell, Kentucky, and in the US base at Ramstein, Germany, they run probably the largest store on earth. In any one of them the Times military newspapers easily outsell national magazines like People and Time.
This adds up to a spectacularly influential news distribution operation constantly promoting the editorial opinion that the US military really ought to think again on this one. And that was especially true of the Navy Times, not only because of its circulation of fifty-five thousand but also because of precisely who that number may include.
Particularly as the largest newspaper publisher in the United States, Gannett Company Inc. of Tysons Corner, Virginia, owns the Navy Times. They also own USA Today, USA Weekend, the Arizona Republic, the Indianapolis Star, the Cincinnati Enquirer, the Tennessean, the Courier-Journal (Louisville, Kentucky), the Democrat and Chronicle (Rochester, New York), and the Detroit Free Press, not to mention twenty-three television stations—NBC’s largest group owner of affiliates.
And on Christmas Eve another deep, dark conservative voice came crashing into the fray. Jed Babbin, editor of the revered conservative weekly Human Events, which was for years President Reagan’s favorite reading, let fly with both barrels when he unleashed a blistering editorial and began a Save-the-SEALs petition that pulled in ninety thousand supporters in the first week.
Babbin, once President George H. W. Bush’s deputy undersecretary of defense, forwarded his petition directly to the Pentagon, to Secretary Gates on behalf of Human Events.
Excerpts included:
We at Human Events hereby request your personal intervention to dismiss the charges against the SEALs ... they captured and detained Ahmad Hashim Abd Al-Isawi, one of the most barbaric and dangerous terrorists in Iraq. ... You are next in line, above General Petraeus in the chain of command ... you can, legally, intervene ... and direct they be returned to duty. We respectfully request that you do so forthwith. To stake the honor and fighting future of these three men ... is manifestly a gross injustice.
Right before Christmas and with almost gleeful abandon, another widely respected conservative publication, the American Spectator, joined the fight. This important right-wing monthly, which has published authors such as Tom Wolfe, P. J. O’Rourke, George Will, Patrick J. Buchanan, and the late Malcolm Muggeridge, launched forth with an editorial by the magazine’s eminently respected founder and editor, R. Emmett Tyrrell Jr., under this headline:
THE CURRENT CRISIS
WAR IS HELL—NOT LITIGATION
Among the carefully worded prose of a very fine writer were the following statements:
Are these trials really necessary—it is, I think, pretty well established that terrorists do not always tell the truth. General Cleveland had it in his power to tell lower level commanders simply to avoid bloody lips in future—but he set in motion a destructive process. Secretary Gates can end this abuse of power by simply doing what Cleveland failed to do.
Let us get these courts-martial canceled. The guy who should be appearing in the dock is Ahmad Hashim Abd Al-Isawi, whose lip has doubtless healed.
The American Spectator, when roused, has earned the reputation of a doughty fighter. Its controversial article in 1994 concerning Clinton-accuser Paula Jones was the basis for a sexual harassment lawsuit that started the chain of events resulting in President Clinton’s impeachment. Why in the world the military was happy to cross swords with so many irate and distinguished wordsmiths will, perhaps, remain forever a mystery.
Meanwhile the furor in the US media continued. The fourth-largest circulation newspaper in the United States, the New York Daily News (a half-million a day), thundered into print with a damning editorial headlined,
SAVE THESE SEALS: NAVY COMMANDOES RATE HONORS,
NOT COURTS-MARTIAL FOR TERROR ARRESTS
And this newspaper—America’s first tabloid—is enormously respected in New York, where its old art deco skyscraper headquarters, the Daily News Building, still towers nearly five hundred feet above East 42nd Street. Beneath the black glass domed ceiling of the lobby stands the world’s largest indoor globe.
Its opening tirade, concerning Matt, Jon and Sam, shook the place to its granite foundations. Anyone who did not know about the three SEALs before the end of the year, 2009, most certainly did now. The Daily News editorial dripped with outrage and scorn toward the military.
Defense Secretary Robert Gates must intervene to prevent an injustice that turns the world on its head.
It continued in fighting mode:
How can those who opened an official investigation of this trifling matter sleep at night? ... It is bad enough that these men have been subjected to the indignity of formal criminal charges. Even an acquittal at trial would be a travesty. Why must they answer the charges of a terrorist?
It is perhaps worth noting that the Daily News did not get into the issue of “guilty or not guilty.” They wrote the editorial assuming the worst-case scenario:
EVEN IF THEY WERE GUILTY: SO WHAT?
And that was the message they trumpeted to their estimated 2.5 million readers all over the city. On that cold winter weekend, in every one of New York’s five boroughs, the issue of these three Navy SEALs eclipsed all others. In fact, the courts-martial seemed for a while to be a New York story, even though it was rooted more decisively in Washington, DC.
But the New York Daily News carried a big stick, and it was fresh out of carrots. The voice of the city had spoken—well, bellowed—from the top of that 42nd Street skyscraper. The editors wanted action, a thorough military rethink. The US Navy SEALs belonged to the nation, not to a few yellow-braided officers. They were America’s platoons, every father’s supermen. And big people better start listening, or else the Daily News, winner of ten Pulitzer Prizes, would most certainly want to know why. Loudly. And they were by no means alone.
The fact was that the courts-martial of Matt, Jon, and Sam had become a silver-plated, coast-to-coast national scandal. In a sense it united the entire country. Because only the most flagrant, human-rights liberal could possibly have sided with the powers that sought to humiliate the men from Camp Schwedler. The nation wanted the charges dropped.
And the media onslaught was relentless. And it was not just the printed word that was being aimed with such venom at the Pentagon. The story broke on FoxNews, and that organization had already allowed one of its biggest hitters, radio/television host Sean Hannity, the best-selling author and conservative political commentator, to conduct a major live interview with Neal Puckett.
During the exchange the interviewer, trying to clarify his thoughts, asked, “The al-Qaeda training manual says that members must complain of torture and mistreatment inflicted on them. It’s part of their training, correct?”
Puckett replied, “It’s to be expected in every situation in which they’re captured.”
HANNITY: HOW do we even get ourselves in this situation?
PUCKETT: By listening to the Iraqi complain, taking his complaints seriously, investigating our own people, America’s fighting men, and taking a terrorist’s word over theirs.
H: SO we handed over this terrorist, this murderer to the Iraqis, and then he’s given back to the Americans—then all he has to do is accuse the Navy SEALs, and they get put on trial for doing the job they’re supposed to do?
P: Look, seems like this guy had blood on him. Someone just had to say, if any of you guys are responsible, knock it off. I don’t want to see this happen again. That assumes they think the SEALs did it, which they actually didn’t.
H: Taking the word of a murdering terrorist over our Navy SEALs. It just doesn’t make any sense to me.
Generally speaking it was a tough call for the broadcast media because they, by the nature of their business, need live principals on the screen at all times. But there was zero chance of bringing in the three future defendants. Fox and their rivals would have to press on with lawyers and experts, with camera crews and reporters “door stepping” both the Navy base and the Virginia SEAL HQ.
Christmas in 2009 was a worrying time for the families. But Jon did his best to make light of the potential disaster that he faced. The biggest problem was he had no answers for his parents, brother, and girlfriend. No one had yet shown him the other SEALs’ statements. The lawyers were still poring over the discovery documents, but no one had yet shown him anything significant.
Matt, who faced a far more serious situation, made his way home to Ohio, but he did not feel much like skiing. Congressman Burton was concerned about the lack of cooperation that General Cleveland was showing toward Congress. This weighed upon him throughout the vacation as he agonized about the content of the letter he must write back to the SOCCENT commanding officer at MacDill Air Force Base.
But he was determined “to convey the American people’s perception that the General was unfairly prosecuting three heroes, based, at least in part, upon the word of an inhumane monster.”
His letter, dated January 4, 2010, ultimately read,
Dear General Cleveland,
I received your letter of December 15th 2009, regarding the pending courts-martial of Petty Officers [McCabe, Keefe, and Gonzales]; and I appreciate your office’s attempting to set the record straight, and clarify what you describe as the “incomplete and factually inaccurate” press coverage of the situation. Having reviewed all of the material you provided, I still have to strongly disagree with the decision of your officers to pursue punishment of these Navy SEALs.
Ahmad Hashim Abd Al-Isawi was one of the most wanted terrorists in Iraq; responsible for the murders of innocent American civilians and numerous attacks on American and coalition forces. The injuries to Mr. Al-Isawi were, as you readily admit, relatively minor, and certainly pale in comparison to the brutality of the crimes he helped perpetrate.
While Petty Officers [McCabe, Keefe, and Gonzales] may have been wrong to not fully cooperate with investigators, it seems to me that the punishment still far exceeds the crime. In my opinion, prosecutorial discretion should have been exercised.
Beyond the fates of the three individual sailors, I have some general concerns about this case that are only reinforced by your letter. First, the fact that fellow US service personnel initially raised the accusations ... strongly suggests that we have created a culture within our Armed Forces where our military personnel are now more concerned about protecting themselves from legal jeopardy for every action or statement, than they are about fighting the enemy.
Our troops and these SEALs need to be bold and decisive in combat; not hesitant and over-thinking every action for fear of prosecution. We are in a war that we must win against a determined and patient enemy, who already believes we do not have the will to do what is necessary to defeat them.
Second, because of the intensive media coverage of this case—even if it is incomplete and factually inaccurate as you describe—this is the public perception of the case: the American people are outraged by the courts-martial of individuals who should be hailed as heroes.
In fact over 30,000 Americans have signed my online petition calling for an end to this prosecution.
Perhaps even more alarming than the decline in morale this case has caused the country, is the boost in morale and confidence that this case gives to al-Qaeda terrorists, who, as I said, already believe America does not have the will or stomach to do what is necessary to defeat them.
General Cleveland, you are a distinguished soldier and former Special Forces operator yourself. I have the utmost respect for you personally. But in this case the American people’s perception is that you are unfairly prosecuting three heroes, based, at least in part, upon the word of an inhumane monster. Al-Qaeda’s own handbook instructs their operatives to allege abuse if detained by American forces.
In fact al-Qaeda operatives are trained to self-inflict injuries for the sole purpose of accusing U.S. forces of abuse. We’ve seen repeated cases of this since the conflicts in Iraq and Afghanistan began. In my opinion, carrying forward these courts-martial will do our Nation and our Armed Forces more harm than good.
I respectfully and strongly urge you to exercise your leadership authority, stop the impending trials, and drop the charges against these American heroes.
I await your prompt response.
It was signed by Dan Burton, with copies to Hon. Barack Obama, Hon. Robert Gates, Admiral Mike Mullen. And, of course, it never even tackled the most likely possibility—that none of the three SEALs were guilty of anything.
In essence, the trials of the three SEALs were still all military: the court-martial, the major general, the SEAL base, the Navy JAGS, the Special Forces, the commanders, the master chiefs, and the Armed Forces’ term for a prisoner: “detainee.”
But politics was shouldering its way into the fight with every turn in the road. Representative Burton had rightly marched into the debate some of the most influential men from the Capitol. And the names Gates and, occasionally, Obama were part of the conversation.
Leading conservative writers were in there, swinging hard at military leaders, and conservative publications were making their stand against what they recognized as injustice. Even liberal US newspapers were taking a swerve en masse to the right, demanding fairness for the SEAL heroes.
And Puckett, Matt’s civilian lawyer, albeit a former US Marine lieutenant colonel, suddenly ratcheted everything upward by writing a thoughtful but tough article in the most revered conservative publication in the country, Reflections magazine, the voice of the new conservative movement of the twenty-first century.
This beautifully written monthly stated its case with passion. And it quoted William F. Buckley Jr., founder and editor of the National Review, claiming the same mission statement: “To stand athwart history, yelling stop.”
And onto this shining platform of right-leaning intellect stepped Puckett, welcomed by one of the most demanding editorial boards in the world, one that was avidly pro-military and absolutely not in favor of court-martialing courageous and patriotic Navy SEALs.
Indeed, in this rapidly developing uniformed farce, the high commanders fell right into the magazine’s catch-all of “sporadic and weak resistance preferring power to principle,” perhaps even floundering under the “ideological juggernaut of liberalism,” which, in the end, is wrong about just about everything.
Like most of the country, Reflections saw the military condemnation of the three SEALs as nothing short of disgraceful. And they reminded the Washington lawyer of the words of their patron saint, the father of Western conservatism, Edmund Burke, who once memorably declared, “All that’s necessary for the forces of evil to win the world, is for good men to do nothing.”
The Edmund Burke Institute, for which Reflections is the flagship publication, was firm in its general resolve: “We refuse to do nothing. We will fight for what is right, true and good. This is the rock upon which we take our stand.”
Thus, their team endorsed Puckett to help them make that stand, explaining to an important readership precisely what was at stake. When he filed his thoughtful prose, they headlined it:
NAVY SEALS DENIED JUSTICE
And after he briefly described the circumstances that led to the accusation and the dangers that Matt, Jon, and Sam now faced, he characterized the military’s response:
The commanding general decided to take stern, formal disciplinary action, which would have ended the career of all three of the SEALs ...
Rather than thinking through all of the other alternatives available, the senior legal advisor recommended the general refer these cases to prosecution by court-martial. This action ensured that the public would become aware of the case.
The significance of this arched piece of writing was that Puckett was both a Marine officer and a trial lawyer. Who could possibly be more qualified than him to make this judgment? And therein lies the rub of this puzzling legal conundrum: so many wise and experienced people were thinking in perfect harmony and urging General Cleveland to rethink and cancel all charges against the SEALs.
But somehow there was an obdurate and irrational determination at work here. It was a strange obsession to nail them at all costs, with no obvious benefit to anyone, certainly not to the reputation and public standing of the US Armed Forces.
Right now, in the brand-new year of a brand-new decade, in a relatively new century, half the country was waving angry fists directly at the Pentagon. It was a very long time since that much public rudeness had been hurled at senior officers and officials, a long time since the military had conducted any operation with such a chilling lack of common sense.
And because the public was not having it, Jon Keefe’s lawyer, Greg McCormack, decided that one sensible move might be to have his client take a polygraph test, which, though not always admissible as evidence in court, would nonetheless provide substantial validity to Jon’s known character and truthfulness.
Greg’s staff hired a well-known licensed Virginia polygraph examiner, Andrew M. Casey, to conduct the tests on Jonathan, who readily agreed to undergo them. Examiner Casey’s report says,
The main issue under consideration was whether or not KEEFE was truthful when he stated he did not lie to NCIS Special Agent Stamp concerning the alleged abuse of detainee Al-Isawi. During the pre-test interview, the facts of the case were discussed, and all questions were reviewed by him.
RESULTS: Throughout each polygraph chart there were no apparent physiological indications of deception when KEEFE answered “No” to the following questions:
Did you lie when you told Special Agent Stamp that you didn’t see anyone abuse or mistreat Al-Isawi?
Did you see anyone abuse or mistreat Al-Isawi?
Was Al-Isawi abused in your presence?
OPINION: Based on the above, it is my opinion that NO DECEPTION WAS INDICATED.
McCormack immediately fired off a request to General Cleveland at Special Operations Command Center, MacDill Air Force Base. It asked that the Naval Criminal Investigative Service at the NCIS Norfolk Office administer a new, more expansive and thorough polygraph examination to SO2 Keefe.
The general wrote back that he hereby granted that request, but in addition to the three questions indicated, the polygrapher would ask Jonathan questions concerning his knowledge of the source of Mr. Al-Isawi’s injuries and about his efforts to influence the investigation.
This was a fascinating clash of viewpoints. McCormack understood with 100 percent certainty that Examiner Casey was equally sure that Jon was telling the absolute truth. In the lawyer’s opinion there was not a cat-in-hell’s chance that any polygrapher on the planet could possibly trap his client into revealing he had told a lie.
General Cleveland may or may not have grasped this. Because if the military wheeled in one of the country’s best polygraphers and put Jon Keefe through the ringer, employing every known technique in the book to trap him—and then come up blank—that would surely do the government’s case no good whatsoever.
The military and the intelligence services, especially the Navy, have a tempestuous and sometimes embarrassing history with this curious little electronic device, which, while the subject undergoes some kind of fourth-degree interrogation, records physiological activity, blood pressure, heart rate, pulse rate, respiration, and skin conductivity.
There had been many great triumphs and a few perfectly cringe-making failures. The US government had its own grandiose name for the lie detector test: a psychophysiological detection of deception (PDD) examination. And prosecutors love to have it tucked in their brief file so long as it proves the defendant has told a few whoppers.
In a way they could not afford to polygraph SO2 Keefe, but they could also not afford not to. The memory of the horrendous trial of former US Navy Chief Warrant Officer John Anthony Walker, a communications specialist who spied for the Soviet Union from 1968 to 1985, is the reason for this dichotomy.
During his time conducting this profitable enterprise, Walker helped the Soviets decipher more than one million encrypted naval messages. He organized a spy operation involving several Navy personnel, an operation the New York Times reported in 1987 as “the most damaging Soviet spy ring in history.”
After Walker’s arrest Caspar Weinberger, President Reagan’s secretary of defense, stated that Walker gave the Soviets information that allowed them access to weapons, sensor data, naval tactics, and terrorist threats as well as surface, submarine, and airborne training, readiness, and tactics. The Soviets essentially knew where every US submarine was patrolling at all times. In the event of war Walker’s treachery would have resulted in enormous loss of American lives.
And a simple lie detector test could have stopped the whole thing. Because Walker, despite certain people’s suspicions, never took a polygraph test. His Soviet masters had instructed him never to accept any form of promotion that required one. He actually refused promotion because of this.
Walker, the bearded former crew member in the nuclear-powered fleet ballistic missile boat USS Andrew Jackson, was badly short of cash, so he simply walked into the Soviet Embassy in Washington one afternoon and sold a top-secret document for several thousand dollars, and this in turn led to a permanent salary from Moscow of up to $1,000 a week.
He was judged responsible for the North Korean capture of the spy ship USS Pueblo in 1968. And as a critical supervisor in the comms center for the US fleet’s Atlantic submarine force, he betrayed the entire US Sound Surveillance System (SOSUS) underwater surveillance system to the Soviets, who immediately altered their submarine propellers to reduce cavitation and, thus, detection.
Naval experts estimated that Walker and his team provided enough code-data information to sway the balance of power between Russia and the United States during the Cold War. When he was finally arrested—exposed by his angry ex-wife for nonpayment of alimony—he observed, rather jauntily, that “K-Mart has better security than the Navy.”
And the US Navy never quite recovered from that, regularly reaching for the lie detector at the slightest suspicion of espionage inside their warships or dockyards. Walker, after plea-bargaining, got life in jail, but his right-hand man received a sentence of 365 years in a Californian state penitentiary.
The polygraph played some role, either positive or negative in most of the big US espionage cases of the past fifty years. The grotesque and drunken CIA double-agent Aldrich Ames admitted being “terrified” of the lie detector while he was spying for the Soviet Union. But the KGB kept him straight, told him to relax, and Ames beat the polygraph twice in 1986 and 1991. The Wisconsin-born traitor did not, however, beat the US court system, and he was jailed for life in 1994, having fatally betrayed many, many US agents.
Another lethal CIA spy for the Soviet Union, Harold James Nicholson, suddenly failed an agency polygraph test in 1994, and this led to his immediate arrest and jailing for espionage against the United States.
One of America’s worst traitors was the Chicago-born Robert Hanssen, who spent twenty-two years working for the FBI but simultaneously spying for the Soviet Union and, later, Russia. They caught him in the end, and Hanssen pleaded guilty to thirteen counts of espionage.
He was sentenced to life imprisonment, without parole, in a high-security Colorado penitentiary. He told his captors that no one ever asked him to take a polygraph test. If they had, he confirmed, it might have made him think twice about spying, even though he earned an estimated $1.4 million from Moscow Station.
Thus, the US military has a love-hate relationship with that demonic electronic apparatus. They dared not ignore it for fear of the same torrent of abuse that hit the CIA and the FBI over Walker and Hanssen, both of whom were never required to take one. And then there was Ames, who beat it, and Nicholson, who was trapped by it.
When Greg McCormack made his request on behalf of Jonathan Keefe, General Cleveland had to risk it. But the lawyer rightly understood there was no danger whatsoever to his client, and he welcomed the opportunity despite the extra questions the government was preparing in order to try to trap the big SEAL from Virginia.
Meanwhile almost all of the other lawyers involved in the SEALs’ defense had spent much of the Christmas and New Year vacations poring over the sworn statements to which they now had access. And the one that truly preoccupied them was the long NCIS interview with Brian Westinson, made on September 15 but kept under wraps for three months until the government delivered it to their legal offices on December 15.
This statement was made during a re-interview. Westinson had made an earlier report on September 5 in which he stated, in writing for the first time, that he had witnessed Matt strike the detainee on the left side of his abdomen with a closed right fist, and this caused him to fall to the floor onto his right side, with his legs pulled up in the fetal position.
Westinson wrote that he was shocked and scared at seeing this happen, and the three SEALs, Matt, Jon, and Sam, noticed his surprise.
Westinson had recorded that Jonathan said to him: “Don’t feel bad for this guy. He killed a lot of Americans and two team guys.” Westinson had added that he personally picked up Al-Isawi from the floor and set him in a chair. “He was still bound with his hands behind his back,” the MA3 wrote. “And he was wearing a mask covering his eyes and nose. I observed blood coming from his lip.”
So far as the defense lawyers were concerned, this was all very well. But their clients had also provided them with accurate accounts of the “incident” from the very beginning, right from the opening meeting at Danny’s. And it was stark in the minds of all three accused SEALs that on that morning Westinson had never admitted to seeing anything of the kind and never once even suggested he had seen Matt punch the terrorist.
And both Matt and Jonathan remembered something else: at first Westinson admitted he had been absent from his guard post twice, but later stated it had been three times. In the SEALs’ opinion this was because he considered, momentarily, it was more favorable for him to have been missing for as long as possible, during which time someone else may have thumped Al-Isawi in the stomach. The longer the absence, the wider the range of Westinson’s alibi.
And now, set before them, the lawyers could read Westinson’s rewrite, rethink, rehash statement, made in the camp at Ar-Ramadi when he was not in front of a group of hard, disciplined SEALs who were listening to every word. There, while he worked on that September 15 rewrite, he had free literary rein.
And boy! Had that account ever changed from those stammering accounts he gave in front of everyone in Danny’s recreation room. Under intense interrogation from NCIS Special Agent John Stamp, Westinson’s re-interview was based on a specific set of questions:
1. How long were you gone from the screening facility before you observed McCabe, Keefe and Sam?
I left once to go get medical paperwork, once to put the rifle away. I was away from the detention facility approximately five to 10 minutes before returning, to find Sam, McCabe and Keefe inside with the detainee.
2. What did you first see?
I saw Sam, McCabe and Keefe standing three feet away from the detainee. The detainee was facing them, standing up against the wall. He did not appear to be in any distress.
3. What did you first hear?
I did not hear anything out of the ordinary when I returned to the detainee facility.
4. Is there a sign in the log book?
No. No video either.
5. Describe the exact positioning of McCabe, Gonzales, and Keefe when you entered.
Al-Isawi was standing up, facing McCabe, Gonzales and Keefe, with his back to the wall. He did not seem distressed. Gonzales, McCabe and Keefe were three feet away from him.
6. What did they say to you when you entered?
I don’t remember anything being said.
7. What did you say to them?
8. Did it appear like something was going on? What did you first think when you entered?
Yes, because I saw Sam looking out of the door, as if making sure no one saw, that would report what they were doing. When I walked in I didn’t think anything was going to go on, as if me being there would deter them from doing anything to the detainee.
9. Why would they be in there?
They had no reason to be in there. With past detainees the Team guys would poke their heads in to look at a detainee but I’d never seen them abuse detainees before.
10. What was Al-Isawi doing?
He was just standing there.
11. Was he sitting or standing?
Standing.
12. Did Gonzales, McCabe or Keefe have their hands on Al-Isawi in any way? Helping him stand?
No, I didn’t see anyone touch him until McCabe hit him.
13. Did you ask Gonzales, McCabe, or Keefe what they were doing?
No.
14. Where were Gonzales, McCabe and Keefe when McCabe struck Al-Isawi? Were they holding his arms?
They were in the same position I pointed out earlier. McCabe just reached out and hit him.
15. How long were you standing next to McCabe before he struck Al-Isawi? Did McCabe say anything before he struck Al-Isawi? Did Gonzales and Keefe say anything either right before or after the punch?
I was standing next to McCabe less than a minute before he hit Al-Isawi. McCabe didn’t say anything before he hit him. After the punch, Gonzales and Keefe laughed, and Keefe yelled at the detainee, like a roar. As they were walking out, Gonzales said, “That’s enough. He’ll get more later.”
16. Was there any other conversation that took place in the screening facility, other than what you have already told me about?
17. Has anyone attempted to influence your statement? Has McCabe, Gonzales or Keefe spoken to you since you observed the assault? If so, what did they say?
Sam wanted to write my sworn statement with me. That’s what was the breaking point, what led me to report it. He also told me, “That guy fucked himself up, you’re being very unprofessional right now,” after he saw me hanging around the TOC. And after the meeting with the Lieutenant the day this happened, Sam said to me, “Get in there with those guys and get your story straight.” Sam was referring to the entire SEAL Team, and to the medic, Paddy.
18. What did you think when you saw blood on Al-Isawi’s lip? Did you tell anyone about it?
I was scared but I didn’t think it was from McCabe’s punch. I don’t think that injury could have happened from a blow like that. I thought that before I got back from putting my rifle away one of those three did something to Al-Isawi to cause the injury to his lip.
19. Did you ever speak to Al-Isawi? Did Al-Isawi ever say anything to you?
I yelled at him to wake up once, when he was trying to fall asleep.
20. When the Lieutenant and Sam returned to clean up Al-Isawi, what did they say about the blood? Did they speak to Al-Isawi? Did Al-Isawi say anything to them?
When the Lieutenant mentioned the wound to Sam, he said, “Do you think this could have happened on extract?” meaning during Al-Isawi’s capture. Sam was acting like he was feigning ignorance of the injury.
21. Is there anything else I should ask you about?
I think he was abused by other SEALs but didn’t see any other abuse.
22. Did you see anyone else walking around or toward the detention facility while you were leaving to get your medical paper work or put your rifle away?
When I left the detention facility the first time to get the medical clipboard, I saw SO2 Higbie riding on a quad runner in the direction of the screening facility. I did not see him go to the screening facility though. When I was coming back with the clipboard, I noticed Higbie leaving the facility. He said to me, “Nothing happened back there. Relax,” as he was leaving. At that time I looked in on the detainee, and he seemed to be in no distress. Also, Paddy was there, and I don’t think he would have let anything happen to the detainee. I didn’t see anyone coming or going from the detention facility. when I went to put my rifle away. When I was coming back I did not see anyone coming or going from the detainee facility. When I got back to the detainee facility is when I saw Sam, McCabe and Keefe in the room with the detainee. Paddy was right outside the door to the detention facility when I went inside. He would have heard if the detainee was being abused while I was gone. I only left the detainee twice.
This was the Westinson rewrite. And when the lawyers read it the battle lines were truly drawn. For it contradicted every inch of the other statements that the men of Team 10 had written out under oath. Not one of them had seen anyone harm the detainee, and the medic had declared him unmarked except for, later, the tiny abrasion on his lower lip.
And worse yet for Westinson, none of them believed that any member of a SEAL Team would do such a thing. And no one but no one thought it possible that any SEAL would deliberately lie about such an incident.
Any and all them were prepared to testify to the excellent characters of the three accused. In short, no one thought there was a snowball’s chance in hell that Matt McCabe had struck the prisoner Al-Isawi or that Sam and Jon had stood by and then lied about it.
This meant that either MA3 Brian Westinson was lying or the SEALs were lying, as their statements were diametrically opposed. And the jury would have to decide whom they believed.
By this time, with two of the courts-martial already scheduled for January, and with so much more work to do, a two-month postponement was permitted. There was a growing sense that the mighty clash of wills over a minor punch that may or may not have landed on the detainee was shaping up as one of the great legal confrontations of the age and was likely to end up as one of the most expensive.
And already, almost fourteen weeks before anyone was going into court either in Iraq or the United States, there was an enormous point of law that was elbowing its way into the very forefront of the cases: the government’s refusal to allow Al-Isawi to be brought to America to testify. However, General Cleveland had approved the defense lawyers’ rights to take deposition from the Iraqi prisoner.
But attorneys Puckett, McCormack, and Monica Lombardi, who had recently joined the defense team, were all of the opinion that this violated an enshrined right in a US court of law that the defendant has the right to confront his accuser. And right here the general was wading in deep waters.
In the first week of the New Year Puckett wrote a firm letter under the heading, “Re: Request of deposition of Mr. Ahmad Hashim Abd Al-Isawi.”
It read,
Dear General Cleveland,
I received your letter of January 7th, 2010, approving the taking of deposition of Mr. Ahmad Hashim Abd Al-Isawi. I am disappointed that you have approved this request without requiring trial counsel to demonstrate why Mr. Al-Isawi cannot be produced. As the court-martial convening authority, you are the natural arbiter of disputes between the prosecution and defense.
The issue in dispute here is one of serious consequences. It is the right of an accused to confront his accuser. That right is enshrined in our Constitution under the Sixth Amendment. Yet, without any demonstration by the Government of an attempt to produce Mr. Al-Isawi, you have permitted the prosecutors to usurp a fundamental constitutional protection of SO2 McCabe. Ironically, it is a right for which SO2 McCabe was willing and ready to fight, and make the ultimate sacrifice.
If Mr. Al-Isawi is in the custody of Iraq authorities, you could have invited him to attend and coordinated his travel documents through the Department of State. We recognize that such coordination may be difficult, but difficulties do not justify denial of a constitutional right to an accused.
Instead of coordinating his travel, you have decided to depose Mr. Al-Isawi in Iraq. A deposition instead of a live testimony means that court-martial members will not have an opportunity to assess the witness’s demeanor, watch his mannerisms, and, most importantly, ask him questions. By denying the court-martial members an opportunity to fully participate in the court-martial process, you are also denying SO2 McCabe a fair opportunity to defend himself and confront his accuser.
In light of your decision to deny our client his full constitutional rights to confront his accuser, and in consideration of SO2 McCabe’s right to a speedy trial, we hereby withdraw our request to have Mr. Al-Isawi produced, and agree to enter into a stipulation of his expected testimony.
Puckett signed the letter and had it dispatched to MacDill Air Force Base. This probably delighted General Cleveland and whosoever his political guardians might have been because, at last, they were rid of the threat that some legal curveball might be delivered that would compel them to produce Al-Isawi in the United States, with all the rights and privileges of a regular US citizen, including the ability to plead the Fifth.
It cannot be overstated how seriously US law enshrines this right of the accused. In 2004 the Supreme Court made a decision in the CRAW-FORD v. WASHINGTON case that rewrote the standard for determining when the admission of hearsay statements in criminal cases is permitted under the CONFRONTATION CLAUSE of the Sixth Amendment.
This means, broadly, that no lawyer can walk into a US courtroom with a prepared, written, sworn statement from a witness. Because it can be deemed hearsay. The person who made that statement has to be present, right there in the witness box, to utter his words before the judge and jury, prosecution and defense.
Those words are deemed sacred in the search for truth. And no matter how fastidiously any statement has been prepared and sworn and witnessed, it simply will not do. Because nonappearance means the words may be interpreted as hearsay.
This 2004 decision was a momentous change to the law, one of the most defense-friendly decisions in many, many years. It underscored the right to cross-examine witnesses and potentially disallowed hearsay evidence, which courts had permitted for the past twenty-five years.
The ruling astounded attorneys all over the country.
It was such a legal milestone that it brought a brand-new word into the lawyer’s vernacular. From that moment on, March 8, 2004, attorneys, when faced with sworn statements from potential no-shows, would thunder, “CRAWFORD!”
And even General Cleveland had to pay attention to that. Though standing on the government’s decision to keep Al-Isawi in Iraq, he had absolutely no choice about letting the defense lawyers loose on him to conduct a cross-examination. And making matters infinitely worse was the fact that as this legal quagmire was proceeding, there was a newly released statement from Al-Isawi.
All of the defense lawyers, JAGs, civilians, and paralegals were studying this new statement. The recorded first exchange between the prisoner and his military interrogators was the first sight the lawyers had at the direct accusations being leveled against their clients, the SEALs.
In the hours immediately after the incident two special agents from the Camp Cropper Criminal Investigation Division (CID) Office, Military Police Battalion, Baghdad, had sat Al-Isawi down and proceeded to have their linguist/interpreter fill out seven pages of Arabic writing, as dictated by Al-Isawi.
The typed-up account, translated into English, was now presented to the defense lawyers. It read,
September 1st at 2.30AM the American and Iraqi forces broke into my house and arrested me, and then took me to their camp. They interrogated me at one room, and then took me to a different room where I was assaulted and abused by the American forces, by hitting and kicking on sensitive areas on my belly, and shoulder. They were hitting me by the hands and foot.
Questions and Answers: [spelling errors not corrected]
Q: Do you know who hit you?
A: I don’t know because I was blindfolded.
Q: Do you know what you were hit with?
A: I was hit by hands and foot.
Q: Were you hand cuffed?
A: Yes.
Q: Do you know you were hit by a man or woman?
A: A man.
Q: How do you know?
A: I can recognize his voice.
Q: Do you have any injuries from that man who hit you?
A: Yes. I was hit on my face and shoulder.
Q: Do you have any other injuries from that man?
A: Yes. I was kicked so hard on my bellay.
Q: Were you hit on your bellay by fist or foot?
A: By foot.
Q: How do you know you were hit by foot?
A: Because it was very strong hitting.
Q: Were you provoked by that man?
A: No.
Q: Did you understand what that man was saying to you?
A: The only word I understood was the f-word, and he said a lot more words that I cannot understand.
Q: Did you do anything as reaction while that man Was hitting you?
A: I did not do anything because I was hand cuffed, but after I was fell to the ground, that blind-fold moved a little bit so I saw the man’s foot in front of me.
Q: When was the last time you slept before you got hit?
A: About an hour before the hitting.
Q: Were you scared after they broke into your house?
A: Yes.
Q: Did you get any medical or Madison treatment after hitting?
A: I was only examined by the doctor and he told me that he will bring some Madison but he did not.
Q: Can you describe how strong that pain in your stomach was?
A: It was very strong pain especially for the first three days, and then it’s gone
with first week.
Q: Special Agent was ordered to withhold the day and time and location of completion of this statement from you. Do you have any objections?
A: No.
There would be a great deal more to come because, as Puckett’s letter to the general had so strongly intimated, the defense attorneys for all three accused Navy SEALs would be traveling to Iraq for a possibly revealing chat with the Butcher of Fallujah, who now claimed “prisoner abuse.”