When I saw the document, which stated, top left, UNITED STATES V. JONATHAN KEEFE, S02, US NAVY, I had to leave the room, because I thought I was going to be physically sick. I was gone for about twenty minutes. My lawyer probably thought I’d killed myself.
There are a lot of decks in the US Navy—quarter decks, gun decks, foredecks, flight decks. But in January 2010 there was a brand-new one entering the seamen’s lexicon: the stacked deck. Because by now the government was preparing to erect yet another roadblock right in front of the accused Navy SEALs.
The government’s stacked deck involved the necessary statements of the five SEALs who were ready to stand in a courtroom, any courtroom, and swear to the innocence of Matthew McCabe, Jonathan Keefe, and Sam Gonzales. They were the platoon lieutenant, Jimmy; Petty Officers 1st Class Rob and Eric; Lieutenant Junior Grade Jason; and SO2 Carlton Higbie.
All five of them had walked across that dark and lethal desert on the fateful night of September 1, walked alongside Matt, Jon, and Sam, not knowing whether they were headed into a quiet, sleeping al-Qaeda camp or into the jaws of hell. Eric had walked alone, out in front of Matt, wide to the right of Jon, point man for column two.
Carlton had walked close to Sam, who had a hair-trigger grip on the comms. Jimmy was right there with them, armed to the teeth and in command. And now the US government was ranged against them all, seemingly determined to ruin Matt, Jon, and Sam. The government was preparing to deny immunity from prosecution to the other five if they dared to stand in court and speak up for their blood brothers in combat.
This was a truly shameful episode. The five SEALs not being charged—yet—had, through their lawyers, requested immunity during any court appearance, as none of them wanted an aggressive prosecutor, steeped in the tricks and wiles of the courtroom, to trip them up.
All five of them were smart as hell, but they knew little of the law; however, they knew only too well the treatment so far meted out to Matt, Jon, and Sam in the long weeks while the military was attempting to wring confessions out of them. Most of them knew, blow by blow, how government legal officials had spent hours threatening and promising, doing anything they could think of to get an admission, almost forcing the SEALs to sign documents that would confirm that Matt had whacked the murderer and that the other two had lied, cheated, and schemed to get him out of it.
The request for immunity from prosecution was normally routine, so no one expected the requests to be denied. But this case was different, way different. The government appeared to believe there were no holds barred.
And soon, they would learn, the government was prepared to deny their routine request for immunity. The lawyer representing the five SEALs, however, would make it plain: the Team 10 witnesses were not going anywhere near a courtroom until they were given guarantees that they too would not end up in the same boat as the three accused.
As the lines were drawn over the immunity issue, there was a weird and angry silence from the government. And all three defense teams were left to reflect on the inordinate set of circumstances that had dominated this case from the very first moment Ahmad Hashim Abd Al-Isawi had opened his mildly damaged mouth with his poisonous accusations against US Navy SEALs.
And from then on the SEALs had been up against it. There was the alacrity with which they had effectively been determined guilty, removed from their base, stripped of their armor and weapons, separated from their teammates, made to live with the Iraqis, do menial work, act as servants to other SEALs, and be disbelieved at every turn in their road.
There were the countless times when Jon Keefe had been asked to turn against his friend Matt McCabe and admit he had watched him strike the prisoner. There were the failed attempts to get them all to sign documents admitting to their “crimes.” And there were the absurdly long delays in providing the defense with routine discovery documents essential for any trial.
And what about the sudden refusal to bring Al-Isawi to the United States so that Matt McCabe should have his constitutional right to face his accuser and confront the “evidence” against him? How about the government’s obvious ploy to ensure that defense counsel could not cross-examine this known liar in an American courtroom witness box?
And how about the public uproar? The heavyweight legal opinions being flung at Major General Cleveland? And what about the demand from the US Congress that this entire prosecution be abandoned? And the obvious wish of the American people to have this case thrown out, regardless of whether Matt had walloped the terrorist. There were hundreds of thousands of cyberspace messages evoking nothing but fury and suggesting that no one in the entire country would have given a short damn if Matt had shot the terrorist and been done with it.
Thousands of ordinary people were contributing thousands of dollars to finance the three SEALs’ defense. But all to no avail.
The government seemed determined to find them guilty. And now there was this latest hurdle—nonimmunity for the five Team 10 SEALs who wished to testify on their brothers’ behalf.
Was this a ruthless attempt at stacking the deck, or what?
If the court-martial convener, General Cleveland, stuck to his guns and refused to grant that immunity, Matt and his teammates could suffer a huge blow to their courtroom strategy. It was, after all, essential that men who had fought alongside them, relied on them, and could testify to their character be present at the trial, standing tall in the witness box and swearing to God that Matt, Jon, and Sam had done nothing wrong.
And now the government’s lawyers appeared to have found another way to stop that from happening. Stacking the deck is one thing, but using obvious legal tricks to rob the defendants of even a semblance of a fair shout was quite another.
One of Sam’s principal defense attorneys was Lieutenant Guy Reschenthaler, a skilled and thoughtful Norfolk trial lawyer. He was a man with substantial experience prosecuting terrorists, insurgents and other reprobates in Baghdad courtrooms.
“And never,” he stated several months later, “never in all of my career, have I known the government’s prosecutors so utterly determined to win a case. They seemed prepared to do anything on this earth to nail down convictions against these three American heroes. And God knows why. I’ll go to my grave wondering.”
For a lawyer still in his twenties, Reschenthaler had a formidable record. In 2009 he had volunteered for deployment to combat environment in Baghdad, where he was assigned to Task Force 134, the unit responsible for detainee operations and prosecutions in Iraq. He served as prosecution liaison in the Central Criminal Court of Iraq, responsible for all cases arising from Special Forces capture-and-theater-internment facility crimes.
His life there was spent among Iraqi attorneys and judges in the Red Zone, with the goal of criminally prosecuting terrorist and insurgents under Iraqi law. He handled nearly one hundred cases, securing convictions in all but two of them. He obtained the death penalty for fifteen detainees responsible for murder.
What Reschenthaler did not know about Iraqi prisoners and their breathtaking deviousness was, generally speaking, not worth knowing. He’d seen it all before. But he had never seen anything like the US government’s determination to convict Matt, Jon, and Sam.
The issue of immunity for the SEALs who would be willing to stand witness for the accused grew more pressing. All through the last days of January and early February a skilled military lawyer from Middle-town, Virginia, Charles W. Gittins, worked on statements from the five SEAL witnesses that would be presented to the US Navy trial judiciary, via Greg McCormack.
These “proffers of summarized truthful testimony” that the men would provide if they were granted immunity consisted of full statements, which, by definition, illuminated the necessary and even critical nature of their evidence.
But the government lawyers would not confirm that the immunity would be in any way forthcoming. As a result, Matt, Jon, and Sam felt utterly defeated; none of them could sleep through the night as the specter of ruin and disgrace crowded in upon them.
All three of them lost weight. They were worried about everything, including the rising legal bills, the concern that there would not be sufficient money to pay for their defense. And now they faced the truly chilling possibility that none of their teammates would stand in the courtroom and support them because the government had found a way to scare them out of it.
“I was almost sick with worry,” said Matt. “and I could not get that document out of my head—the one that said THE UNITED STATES V. MATTHEW MCCABE, SO2—US NAVY. It would almost have been better if I had knocked down this terrorist dude because that way I’d have had personal clarity. But I’d done nothing, absolutely nothing, and it sometimes seemed even the SEAL authorities had turned against me. It nearly broke my heart.”
And through all of this Paul Threatt and Greg McCormack were watching the terrible, wearing effect the case was having on Jon Keefe, who had also been shown a judicial document that stated, top left, UNITED STATES V. JONATHAN KEEFE, SO2—US NAVY.
“At first I could not believe it,” he says. “The words seemed to blur right in front of me. How could anyone have leveled that against me? Was the whole country somehow against me? Not just the Navy—the entire United States?
“I was in Greg’s office when I saw the document, and I had to leave the room because I thought I was going to be physically sick. I was gone for about twenty minutes. Greg probably thought I’d killed myself.”
It took that long for the mighty breacher from southern Virginia to compose himself—strange how this is so often the way with the bravest of men. But like Matt and Sam, Jon never could comprehend what he was supposed to have done wrong. He still can’t.
And all anyone could do at present was to hope to hell the supremely erudite Charles W. Gittins could compose a powerful case for immunity to be granted to the big five waiting in the wings to speak up for their three buddies.
Gittins understood that if the government was going to deny immunity, they would probably announce it from out of the blue, suddenly, and with no real reason. Thus, he had to be ready with an unanswerable reply.
He prepared the proffers of testimony for Lieutenant Jimmy, SO1 Eric, and Lt. JG Jason. And then he worked on the submission for SO2 Carlton Milo Higbie IV, who was currently at the Naval Amphibious Base, assigned to one of the revered SEAL instructor positions. Carl, the massively built, six-foot SEAL who could bench press 450 pounds six times, was enormously well regarded by the Special Forces High Command.
The tactical air controller had previous experience on an Iraqi deployment and was regarded as a vital member of the platoon that had captured Ahmad Hashim Abd Al-Isawi.
His proffered statement would detail the times of duties at the base after they had returned, beginning from “wheels down” in the early hours of the morning, with their prisoner. He would attest that he first called the air officer to discuss some minor coordination problem during the mission and then prepared his e-mails for the mission debrief.
Carl and Jason rode the four-wheel ATV from the TOC to the kitchen, trying to find Paddy. The three of them often ate together, usually with Eric as well, but the giant medic was not there, so they went down to the detainee facility in case he was still examining Al-Isawi.
When Carl arrived he did not see anyone present with the detainee, so he and Jason waited outside the door. Pretty soon Westinson showed up, and the two SEALs then left. Carl had spent just a few seconds at the holding facility, and although Paddy was not there, he had time to notice that the detainee was seated with his hands behind his back, wearing the mask. Carl stated that everything looked in order, except there was no one guarding the detainee.
The only SEAL he saw was Jason, and his statement confirmed that he, of course, saw no American strike “Amber”—as the SEALs called Objective Amber’s target. He himself definitely did not strike Amber, and, subsequently, no one told Carl they had hit or struck Amber at any time.
It should be remembered here that this was the account of a SEAL instructor, one of the most trusted and respected members of the entire US Armed Forces. If Carlton Milo Higbie IV said something was so, then it was so—no ifs, ands, or buts. And right now the government was trying to dissuade him from even entering the courtroom on his friends’ behalf.
Like everyone else, a few hours later Carl was awakened and told to report to the meeting at Danny’s, where he learned of the allegations of prisoner abuse. The lieutenant outlined Al-Isawi’s complaint to the twenty to twenty-five people present. Carl had no idea what the lieutenant was talking about and, anyway, did not believe anyone in that room would abuse the detainee. So he spoke up, stating, “Nobody hit the guy.” Others also spoke up, echoing Carl’s opinion. When the meeting ended he went back to bed.
In his proffered statement Carl also described how they were then ordered to fill out individual statements, and because of his seniority, he remained with them and assisted several men complete their forms.
His statement to Charles W. Gittins concluded with the following passage:
As Team 10 was transitioning with Team 1, Higbie had occasion to eat with Command Master Chief Lampard, at the Task Force West Camp. CMC Lampard was apparently unaware of who SO2 Higbie was, because Higbie was not wearing his uniform at the time. Chief Lampard told SO2 Higbie that he was very disappointed in the SEALs for abusing a prisoner, and even more disappointed that they had tried to cover it up, or words to that effect.
SO2 Higbie told Chief Lampard very candidly that no one did anything to the detainee, and no one was covering anything up. And that Higbie thought it was ridiculous that the CMC would say that without any knowledge of the facts. Chief Lampard became quiet, made sort of a grunt, and changed the subject.
END OF PROFFER. Respectfully submitted, and signed by Charles W. Gittins.
On January 29 trial counsel was provided with the proffers of testimony for Jimmy, Eric, and Jason. The submission argued that the testimony of each witness was relevant, necessary, and “in many regards, constitutes exculpatory evidence toward the defense.” The issue remained, however, whether the government would grant testimonial immunity.
On February 4 the defense submitted its request that the government grant each of the witnesses immunity. Two weeks went by, and on February 19, 2010, the government denied the request for testimonial immunity for all five witnesses.
Two weeks after that the two additional proffers for Carl and Paddy were also presented on the grounds that these were the unique observations of each witness during the significant time on the morning of September 2. All three had observed the detainee and interacted with SO2 Keefe, SO2 McCabe, SO1 Sam, and MA3 Westinson. They would also add their opinions regarding the military character for Jon Keefe’s truthfulness and duty performance.
McCormack then took over this battle with the government, acting on behalf of Jon, who was slotted to appear first before a court-martial. He submitted that each witness had a unique role in the facts of the case. With lawyerly restraint, he did not elucidate his true opinion—that it was insanity not to grant these five SEALs the immunity they deserved. And he made out the case for each of them:
Lieutenant Jimmy: A crucial witness because he was the Platoon Commander, and the first person to observe blood on the detainee’s clothing. He alone made the initial report. He conducted the initial investigation, as SO2 Keefe’s superior officer, and he had the responsibility of advising SO2 Keefe of his rights, which he failed to do on repeated occasions.
Additionally, he will relate MA3 Westinson’s multiple denials of any knowledge of, or role in, the detainee’s injury, as well as his demeanor. Furthermore, Lieutenant Jimmy will testify to SO2 Keefe’s character for truthfulness and honesty, as well as outstanding military character.
Lieutenant JG Jason: A crucial witness because he was Assistant Officer in charge, and as such observed the detainee at a time when no other witness observed him. LTJG Jason also has knowledge of a motive for MA3 Westinson to lie. Furthermore LTJG Jason will testify on SO2 Keefe’s character, for truthfulness, honesty, and outstanding military bearing.
SO1 Eric: A crucial witness because he conducted the initial evaluation of the detainee’s medical condition. SO1 Eric’s testimony is also necessary to establish the chain of custody of the detainee. SO1 Eric also has knowledge of who was alone with the detainee, and would have had the opportunity to injure the detainee.
SO1 Eric will also testify that after the allegations of abuse surfaced, he examined the detainee, and found “no such indications.” Furthermore SO1 Eric will testify on SO2 Keefe’s character for truthfulness, honesty, and outstanding military qualities.
SO2 Carl Higbie: Crucial, because he was a witness to Lt Jimmy’s interrogation of the personnel connected with the detainee. SO2 Higbie’s testimony is also necessary in corroborating the statements spoken by MA3 Westinson (words to the effect that he had a bad reputation and could not afford to get into trouble again) in response to that interrogation.
Furthermore SO2 Higbie was present when MA3 Westinson stated that if he were to be punished for detainee abuse, he would be unable to gain employment with the Highway Police when he separates from the Navy. SO2 Higbie was present when MA3 Westinson stated that he did not witness any aggressive act committed against the detainee.
HM1 Paddy: A crucial witness because he observed the detainee, when he went to the screening facility in Baharia, Iraq. He also conducted the required medical and visual inspection of the detainee, and did not notice any injuries. In addition, HM1 Paddy saw that the detainee was left unguarded by MA3 Westinson for a period of time, during which he could have easily intentionally injured himself.
All of this detailed reasoning was a part of a formal request from Greg McCormack that the military judge direct the appropriate convening authority—General Cleveland—to grant testimonial immunity to the five defense witnesses “And that in the event that testimonial immunity is not granted by the Government, the Military Judge abate the Special Court-Martial proceedings against SO2 Jonathan Keefe.”
McCormack summarized the facts of the case, in which he highlighted inconsistencies with grim accuracy, quoting Westinson as saying, “I don’t know, I don’t know.” And then again, “I don’t know ... a lot of guys were in there.”
The lieutenant specifically asked MA3 Westinson: “Did anyone do anything to the detainee?” To which Westinson responded, “No, I do not know.” And then, a couple of days later: “I saw something.” He then asserted to Lieutenant Jimmy that he saw SO2 McCabe punch the detainee in the stomach “while SO1 Sam and the accused were present.” McCormack noted archly that “the specific factual assertions to the alleged assault, provided by MA3 Westinson, are markedly different from those of the detainee.”
A brilliantly argued summation of the situation dominated the second page of McCormack’s motion. It read, in part:
MA3 Westinson is the key Government witness in this case, and without his testimony, the Government would have no evidence to support the accusations against either Keefe, McCabe or Gonzales. MA3 Westinson acknowledges his attempts to be separated from the Navy early, in order to pursue a career with the California Highway Patrol, and that a conviction by a court-martial would destroy his efforts to secure that career in civilian law enforcement.
To this date, MA3 Westinson has never been charged in connection with his failure to protect the detainee as was his duty, nor with failure to report the injury to the detainee, nor with false official statement for his initial denial of any knowledge of how the detainee was injured.
Although MA3 Westinson has not been granted testimonial immunity by the Government, it is the position of the defense that the Government has, in effect, secured the cooperation of Westinson by giving him the belief and expectation that he will not be prosecuted, so long as he cooperates, and testifies as a Government witness in all three cases. The defense submits this situation is the equivalent to de facto immunity.
On page five of the motion McCormack wrote the headline Discussion, and underneath he quoted the Rules of Court-Martial (RCM) 704(e) that pointed out that the decision to grant immunity is a matter within the sole discretion of the convening authority.
However, if a request has been denied, the military judge may grant appropriate relief by directing the convening authority to grant immunity to a defense witness, or he may abate proceedings against the accused upon finding that the following three requirements have all been met:
1. The witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify.
2. The Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination.
3. The witness’s testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source, and does more than merely affect the credibility of other witnesses.
In applying RCM 704(e) the court of appeals for the Armed Forces found that all three prongs must be met. In his motion McCormack reminded the trial court that, according to Gittins, all five witnesses intended to invoke their right to remain silent if called to testify, which satisfied the first prong of the RCM 704(e) test.
He then pointed out that the government had de facto granted immunity to MA3 Westinson by not pursuing charges for his admitted dereliction of duty and false official statement. These protections, informally afforded to MA3 Westinson, allow the government to secure the testimony of the only person claiming to have witnessed the detainee’s injury.
By denying the defense request for testimonial immunity of each witness, the government simultaneously eliminates four essential, relevant, and material witnesses who exculpate SO2 Keefe with specific factual evidence and undermine MA3 Westinson’s credibility. They provide evidence of his conflicting statements and his motive to lie. They also present crucial testimony as to SO2 Keefe’s general military character for truthfulness.
The government’s actions amount to discriminatory use of immunity, thus satisfying the second prong of the RCM 704(e) test.
Finally, the attached proffers clearly indicate that these material witnesses would provide crucial testimony that can be utilized in the defense of SO2 Keefe, that because each witness had a unique role and perspective, none of their testimony is cumulative or obtainable from another source, and that they offer specific facts tending to establish SO2 Keefe’s innocence as well as to impeach MA3 Westinson’s expected testimony.
All three prongs of the RCM 704(e) test were met. Consequently, the defense motion to direct a grant of immunity or abate the trial should be granted.
Almost every defense lawyer involved in any of the forthcoming three trials thought that was probably game, set, and match to the defense. The facts of the issue were indisputable: the Rules of Court-Martial were not only clear; they were also carved in stone.
McCormack had blown apart any sense of fair play in this trial, and he’d exposed the government’s nearly naïve attempt to dance around the rule book by granting immunity to Westinson but not actually admitting it. As discriminatory actions go, this one was right up there.
But it was still up to General Cleveland to grant the immunity, and he was not required to offer an explanation if he decided not to. As things now stood, the courts-martial against Jon and Sam would take place in Iraq because the US government had flatly refused to allow Al-Isawi to set foot in the United States but could not deny the two accused SEALs their right to confront their accuser in court.
The government did not, of course, offer to contribute a dime toward the enormous cost of flying the defense lawyers halfway across the world to Baghdad, leaving that to the SEALs and their thousands of supporters to make their own wildly expensive arrangements.
And out in the great wide world of the United States, those supporters were continuing to raise their voices in protest at the court-martial proceedings. In addition to the huge website Graham Ware ran, all kinds of organizations were emerging, all of them complaining as well as gathering financial contributions to try to cover the endless bills such trials invariably generate.
From the mighty to the humblest, thousands of blogs and tweets came zipping through cyberspace. From the cold slopes of Alaska, Sarah Palin, the Republican Party’s nominee for vice president in 2008, in a characteristically forthright editorial, commanded Americans to “Stand up for the SEALs who are standing up for us!”
There was a rising sense of pure indignation in the United States, as Americans raged against the image of the “lawyered up” jihadist murderer accusing the god-like Navy SEALs of “police brutality.” No one believed him. All that people understood was that the US military was falling over itself to prove how Muslim-friendly it was. At least that’s the way it seemed to the average person, including about eight zillion bloggers.
The SEALs’ trials were being compared to the 2005 “massacre” in Haditha (referred to in chapter 1), when US Marines—who had been fired upon, murdered, and bombed—were accused of being murderers themselves after retaliating. In that travesty of military justice the Marines were all acquitted, but the public saw it as just another grotesque example of the US Navy trying to look “nice and politically correct.”
Experienced US military veterans were angrily pointing out that if the prosecution really did have the SEALs dead to rights, they would have gone straight to a “showpiece general court-martial” in order to assuage their fervent desire to be seen as the fairest of the fair.
To many Americans this was the mind-set of the damned, because the United States was involved in an undeniably brutal shooting war in Iraq, where troops were grappling with a cold-blooded jihadist enemy whose chosen currency was bombing, gunfire, executions, torture, and the daily killing of US troops, wherever and however they were serving in that hot, benighted, tribal country.
And by this time the Islamists had learned that the United States would rather suffer any indignity than honestly admit to themselves how much they were hated in the Land of the Two Rivers. The United States was just pretending, and the courts-martial of the SEALs merely caused veterans to write hundreds of dark tweets, warning that a great price would be paid for this cowardice.
“And that price will only go up,” warned one former Marine officer. “It always does.”
In Arizona, Ware almost lost count of the times he was sent one of the more famous quotes regarding the military’s place in society, such as:
People sleep peaceably in their beds at night, only because rough men stand ready to do violence on their behalf.
—George Orwell, author and former unit infantry commander, Spanish Civil War, 1937
One highly respected educator from Virginia, the daughter of a “decorated combat veteran who gave his life in the service of this country,” sent a moving letter to Major General Cleveland; Admiral Gary Roughead, chief of naval operations; and the Honorable Ray Mabus, secretary of the US Navy. It read,
My nation is on the slippery shore of very dangerous waters and we are currently engaged in the act of assisting our sworn enemy. I respectfully request your assistance in stemming this tide.
After begging them to stop the courts-martial, the writer added how “deeply concerned” she was for the nation. And there were, literally, tens of thousands of letters in this vein being written in the United States during that early spring, expressing not so much anger as bewilderment. But this lady had said it particularly well: “Are we supposed to believe that these three men—the smartest, fastest, best-trained, strongest and most capable, are going to engage in a cover-up over such an incident? This simply does not make sense ... to this mother’s ears.”
She concluded her communication with a final couple of paragraphs aimed directly at the three authorities she named at the head of her letter, General Cleveland, the CNO, and the secretary of the Navy. She said that she felt the three SEALs “would be quicker to leap to our defense, more diligent and self-sacrificing in protecting us, than you would be; certainly less concerned with self-protection.” And she added, tellingly, “Politicos and journalists do not secure our safety, nor protect our civil and Constitutional rights, soldiers do.”
She sent copies of her letter to the three principal defense lawyers, hoping, correctly, that they might share her view that in this instance the military had effectively gone off its rocker. And every one of the lawyers read it thoughtfully, gratified in so many ways to read the well-presented opinions of an educated, rational, and concerned American citizen.
These middle days of March were bringing the ground rules of the courts-martial into very sharp focus. General Cleveland gave no indication that he was considering changing his mind about granting standard immunity to the five witnesses for the defense, Carl, Jason, Eric, Lieutenant Jimmy, and Paddy. Thus, having been implicitly warned they too might end up being prosecuted, none of them would appear in court for Matt, Jon, or Sam.
But there was by this time a new and powerful force in the arena. And just as Shakespeare’s soothsayer mentioned to Julius Caesar a couple of thousand years ago to “beware the Ides of March,” so the court-martial judge might have alerted General Cleveland that he ought to beware the consequences of the obviously tricky ploys from his fiercely determined military prosecution team.
On Friday, March 12, the judge who would preside over the two courts-martial in Iraq for Jonathan and Sam made a ground-breaking decision. He informed Major General Cleveland that he categorically did not understand his decision to not grant immunity.
He then simplified the entire issue by stating that General Cleveland had until March 24 to change his mind and grant all five witnesses the immunity their lawyers requested or else the judge would throw the entire case out of court, and that would be the end of that.
This was something of a bombshell to all the commanders who had a hand in this curious prosecution. But it came as no shock to many Navy personnel who were acquainted with the judge. For he was Commander Tierney Carlos, a New Yorker and former assistant district attorney with a very obvious hard edge and an accent straight out of the Lower West Side. One of his favorite descriptive phrases for those he considered less than well briefed was “knuckle head.” He was also inclined to fire out the word “dopey” with impressive venom.
He had left civilian law, apparently tired of endless murder cases, and elected to join the US Navy JAG corps in Southern Virginia, where he rightly foresaw a “cleaner” practice and a better quality of life.
Commander Tierney, since then promoted to naval captain, was a vintage New Yorker—a five-foot, seven-inch lean and muscular lawyer with well-cut gray hair and a sharp and decisive manner that concealed a kind and reasonable spirit. Rumors abound, though never confirmed, that he generously mentored several young attorneys who he believed showed real talent in litigation. There were many counselors who had fallen foul of the high standards of his courtroom, and yet the word most associated with Judge Carlos was “fairness.” He particularly disliked big, powerful organizations bullying defendants or witnesses.
And from the very start of the SEALs’ prosecution there was a kind of controlled exasperation in the judge’s demeanor. All of the lawyers suspected he was content to hear the case and to make any decisions required of him. But there was something in his attitude, as though he were slightly impatient with the prosecution, as though, like most of the country, he considered the three SEALs should be believed, that they had somehow earned the special places they occupied in the American people’s hearts.
It was as though Judge Carlos recognized that the SEALs did have special license that sometimes empowered them to kill their enemy, no questions asked, because the mortal dangers they so often faced were too great to tolerate anything less.
And on this Friday afternoon in Norfolk in March 2009, he listened carefully to the outline of the case—how a sailor guarding the detainee in the hours after his capture claimed to have seen Matt McCabe punch a terrorist while Jon and Sam watched. And now the distinguished petty officer 1st class, Sam, stood accused of dereliction of duty, impeding an investigation, and making a false official statement.
The defense stated that four other SEALs, including the detachment commander and a Navy corpsman present on the day of the alleged assault disputed the guard’s claims. And now, five months into the investigation, they learned that they too could face prosecution. As a result, they hired a lawyer and requested immunity before testifying in the three cases that had gone forward. And now, without giving any reason, Major General Charles T. Cleveland had denied those requests.
Judge Carlos responded by confirming he did not understand that decision. He said the testimony of the five witnesses would shed doubt on the guard’s allegations. Not granting the immunity, he ruled, is either an attempt to gain tactical advantage over the defense or evidence that the government is overreaching.
Just as important, Judge Carlos ruled, is that the expected evidence would be exculpatory—that it would clear the defendants of guilt. Documents the men submitted about what happened between 5 a.m. and 8 A.M. the day after Al-Isawi’s capture, Judge Carlos said, make clear that the guard was occasionally left alone with the detainee.
The men’s refusal to testify under their Fifth Amendment right does not mean they have anything to hide, stated the judge. And he cited Supreme Court rulings, noting that one of the Fifth Amendment’s basic functions “is to protect innocent men ... who otherwise might be ensnared by ambiguous circumstances.”
Judge Carlos gave Cleveland until March 24 to provide immunity to the five witnesses. He added, “If this does not happen, this court-martial will be abated”—the legal term for indefinite postponement.
It was, of course, the second time Judge Carlos had made a significant ruling in favor of the defense. In January, after the government indicated it would not bring Al-Isawi to the United States to testify in Sam Gonzales’s court-martial, the judge moved the trial to Baghdad on the grounds that the petty officer had the right of confrontation—to face his accuser.
And now, by the second week in March, SO1 Gonzales had his court-martial set for Baghdad at a similar time to that of Jon Keefe. Judge Carlos would preside over both of them. Matt McCabe’s much more serious court-martial would take place afterward in Norfolk, Virginia, in May, in front of a different judge.
That Friday evening, March 12, the court papers were forwarded to the convening authority, General Cleveland at MacDill, Florida, as well as to various officials in the Pentagon. There were, subsequently, many tortuous conversations on that following Monday morning all over the US military’s legal departments. But the decision was already made. Denying the requests for immunity was now pointless, because without this there would be no court-martial. Judge Carlos had ensured that.
And Monday was the day of the Ides of March, the fifteenth day, the date when the great Caesar was stabbed in the back twenty-three times right there in the Roman Senate by men he believed were on his side. Somewhat wryly, Matt said later he understood more or less how Julius felt.
And now the cases did appear to be turning in the SEALs’ favor. And several things happened—all pretty good—in quick succession:
1. General Cleveland, with no options whatsoever, granted immunity for the five SEALs, freeing them to testify on their brothers’ behalf.
2. At a fundraiser in Scottsdale, Arizona, Graham Ware’s organization to support the SEALs raised almost $20,000 for the SEALs’ defense fund.
3. In case anyone thought that Matt and Jon had “tricked” their first polygraph, they both took a new supercharged lie-detector test—not military, but nonetheless the last word in polygraph technology, said to be the only modern test ever devised—virtually unbeatable.
The test was administered by the Virginia Polygraph Service (VPS), located, appropriately, in Fairfax County, home of the one man for whom a polygraph would have been strictly irrelevant, George Washington. The VPS designed a very specific test, made especially to show whether Matt whacked Al-Isawi.
One of the finest lie-detector men in the country, Jerry F. Shockley, a twenty-one-year veteran of the Alexandria Police Department, was in command. A man with more than forty separate qualifications in technique and advanced developments plus innumerable awards from the Virginia/Maryland areas, the former detective lieutenant concentrated on two no-nonsense questions:
1. Did you strike Ahmad Al-Isawi in the midsection?
2. Last September 1 did you strike Ahmad Al-Isawi in the midsection with your fist?
To both of these Matthew McCabe answered a blunt, firm “No.” And in conclusion Detective Lieutenant Shockley wrote,
The above questions were asked on three polygrams utilizing the Backster Zone Comparison Test technique. At the conclusion of the examination there were no significant physiological responses. It is my professional opinion that Mr. McCabe was being truthful when he answered those questions.
—Jerry F. Shockley
(March 17, 2010)
SO2 Keefe, who was equally as open and straightforward as Matt had been, had a slightly more torrid time at the hands of the lie-detector team. He had already taken and passed two nonofficial tests, but this was a modern power-polygraph.
They fitted electronic wires all over Jon and placed him in a chair with special butt pads and motion sensors, never telling him that one sharp clenching of the butt signified a bare-faced lie. They told him to sit still, restricting all movement. Thus installed, he moved only his eyeballs, scanning his interrogation room, looking up at the high one-way glass windows through which he knew a full squadron of agents and “detectives” were observing him.
One of his only two comforts was the presence of his two lawyers. Paul and Greg were right back there somewhere with their own window, watching for the slightest hint of unfair tactics. The other was the fact that he never told lies. Whichever way anyone looked at this scenario, it was one hell of an expensive way to establish something that obvious.
Afterward Jon’s lawyers felt polygraph analysts were treating him with suspicion. In the NCIS test he was polygraphed three times for two hours, and each time was accused of trying to trick the machine.
“They told me I was trying to slow down my heart!” he remembers. “Accused me of being very calm! Told me I was trying to beat the system. I had no idea what they wanted from me. I just gave them the complete truth in answer to their questions. How could there possibly be any suggestion of a lie?”
In the end they sent Jonathan’s results to the FBI in Washington. One opinion stated he was trying to control his breathing, and one paragraph claimed he was taking only four breaths a minute instead of the average human rate of thirteen. “It was a good thing I didn’t slow down my heart at the same time,” he said. “I’d probably have dropped dead right there next to the polygraph.”
The final conclusion caused the military to infer they could not trust the results. Nonetheless, the officer gave the same conclusion as the one for Matt: “It is my professional opinion, that Mr. Keefe was being truthful when he answered those questions.”
The findings of the ex-Virginia policeman arrived in time for Graham Ware’s rally for the SEALs in Scottsdale. Matt attended, and the lie-detector exonerations were announced eight times by elected Republican Congressman John Shadegg, the lawyer son of Arizona’s Steve Shadegg, who managed Barry Goldwater’s 1952 and 1958 US Senate campaigns and organized the Draft Goldwater Movement in the 1964 presidential campaign.
Congressman Shadegg, former chairman of the Republican Study Committee, like so many other SEAL supporters, was a distinguished politician. And he spoke for all three of the accused men, asserting that the American public must know the findings of those lie-detector tests.
He also told the large gathering: “The prosecution of Matthew, Jon, and Sam sends the most terrible message to young men and women across our nation who may be thinking about serving their country, that we would second-guess them in the performance of their duties. I believe the charges should not have been brought, and they should be dismissed.
“This whole incident is an outrage!” shouted the Arizona congressman to the cheering crowd. “Rather than being charged, these young men should be thanked.”
In the annals of these forthcoming, drastically expensive trials, March will go down as a pivotal month—the days when the military judge made plain his intolerance of certain prosecution tactics, when the revelations of the killer lie-detection system were announced, when the prosecution realized that there were important members of Team 10 who would flatly refute the allegations of the government’s star witness not to mention those of the terrorist himself and, of course, that the laws of the United States would not allow them to be bullied and frightened out of making proper courtroom appearances.
March was the month when it was settled that Jon and Sam would be court-martialed separately in Baghdad in late April. Matt’s trial would be a few weeks later in Norfolk, without Al-Isawi being present. His attorney, Neal Puckett, had agreed the terrorist need not be called.
But March heralded the emergence of a new and significant force in the trial of the senior petty officer Sam Gonzales of Blue Island, Chicago. Sam was a dedicated Special Forces warrior who harbored only one wish: to prove his innocence and then to continue climbing the ladder of command in the Teams. This new fighting force—lawyer Guy Reschenthaler—had, as the weeks went by, developed a determined devotion to Sam’s cause.
Reschenthaler was only twenty-seven and had just returned from his six-month tour in Iraq, where he had spent most of his time in the middle of knock-down-drag-out courtroom battles in which the authorities were trying to jail or execute some of the most dangerous terrorists in the Middle East.
And now, stranded in the Navy’s legal department, he was just facing up to a new career—defending sailors, Marines, and Coast Guardsmen on charges of DUIs, theft, and sexual assault. For the former lion of the Baghdad prosecutor’s desk, this stacked up especially drearily against the desert dramas of beheadings, mass production of illegal explosive devices, mass murder, and acts of terrorism.
Perhaps there were those who sensed that Reschenthaler was becoming steadily more bored by his new life, despite many courtroom appearances. But someone, somewhere in the Navy Legal Service Office decided he had better get into a case that would spark his interest and talent.
When he was added to the defense team, it had already included one member of the JAG corps, Lieutenant Commander Andrew Carmichael, who was working with the other defense attorney, civilian lawyer Monica Lombardi, out of her private practice in Virginia Beach. The case file was presented to Reschenthaler, containing all the known details about the three SEALs accused of abusing a star detainee plus lying, dereliction of duty, and false statements.
“Yessir,” muttered the Pittsburgh-born Reschenthaler to himself, “I could get seriously into this.”
Thus, the heavily built, slightly bored graduate of the renowned Duquesne University School of Law became embroiled in one of the most high-profile courts-martial in recent memory—and at a huge cost.
“Resch,” as he was inevitably known, shed a penetrating light on Sam’s character when he recalled the moment they first met. Armed with his case brief, the young lawyer called his new client over at the SEAL base and says he spoke to him with unrestrained awe. “He was a Navy SEAL, right? And around here that’s about the closest anyone gets to being a superhero.”
Later that day the phone rang, and the front desk told him: “Lieutenant, I have SO1 Gonzales here to see you.”
Resch recalls giving his shirt an extra tuck, sharpening himself up, and walking down to the waiting room, where he pushed open the door and said, “Mr. Gonzales?”
At which point a short muscular man stood up and put down his newspaper. He was not in uniform and wore a long-sleeve shirt with a navy pullover, jeans, and old flip-flops. He grinned, offered his hand, and said, “Hi. Just call me Sam, Lieutenant.”
They walked back to the office, where the automatic lights had already gone out with politically correct efficiency.
“You don’t need to turn ’em on, sir,” said Sam, in a low voice. “I’m a SEAL, and we’re used to working in the dark. Just leave ’em off, Lieutenant. I like it better this way.”
The lawyer already knew the SEAL Teams operated permanently on first-name terms, and he asked quietly for the petty officer to relate his side of the prisoner-abuse story.
But at this point he did decide not to tell the SEAL this was his first true criminal case in the United States, unless he counted a pre-Iraq trial in which the even younger Resch defended a sailor who managed to get drunk and passed out at the wheel in a Burger King drive-through. On reflection he also decided not to mention that he lost the case by offering some outlandish excuse that the guy’s psoriasis medication was to blame!
“No problem, Lieutenant.” replied Sam. “Because it’s really simple. Look, we rolled this guy up, took good care to make sure nothing happened to him in the helo on the way home. Then we put him in the box—that’s the big shipping container we have rigged to temporarily hold a captured target.
“Next morning the guy spits blood and says the Americans did it. The general wanted us to take a slap on the wrist with a General’s Mast nonjudicial punishment. But that sounds like a ‘guilty’ to us. And we said, ‘No, the hell with that.’ And now we’re all here.”
It was an instant alert for Lieutenant Resch: this sudden switch from the Navy to the Army, the slightly jarring sound of the word “general” as opposed to lieutenant commander or captain. And right there Resch tuned in to an issue: the term Admiral’s Mast, meaning an appearance on a disciplinary matter before a commanding admiral, had its entire roots and ethos in the Navy.
Over the years the term had been used to apply to the Army, a General’s Mast. But to the legal mind there was a difference. In the Navy an Admiral’s Mast is deadly serious, going back to the days of sail, when some critical mistake or careless action might have endangered the ship.
In the Army, however, it’s somehow considered in a lighter mode, signifying a slap on the wrist and finished. But these SEALs were not in the Army. They were in the Navy, and the very term Admiral’s Mast signified the admission of a serious crime. They could not face that. Right here there were crossed wires, and Lieutenant Resch was the first lawyer to tune in, and he was sitting right across from the senior accused SEAL.
In Reschenthaler’s opinion this switch from naval discipline, this handing over of the prosecutors’ torch to the Army was a very significant occurrence. The two services are related but different. And there is ageless folklore involved in both. The Navy marched to the beat of a sometimes-stricter drum.
And in this case the dogged independence of the SEALs served only to cause the Army commanders to dig in to their entrenched positions ever deeper. Sometimes the SEALs’ wills seemed to irritate the Army authorities unnecessarily. Perhaps the Army should never stand in charge of judgments that involve Navy personnel.
There were a thousand dichotomies in the air, and Reschenthaler, like any halfway-decent defense lawyer, needed to clarify in his own mind the guilt of the accused SEALs. And the question always rears its head: Did they do this? Or is it just circumstances ganging up on them?
It took him a very short time to decide that it was impossible for Sam Gonzales to have stood by and then deliberately lie about the issue. SEALs of his experience simply do not behave like that. Sam was an ambitious man. He had received a Bronze Star for valor in combat. Would he put his entire career on the line and risk standing in a court-martial telling a pack of lies?
Couldn’t happen, was Reschenthaler’s opinion. And the lawyer’s father, a Pittsburgh doctor, supported him in that. His father interpreted the slightest sign of doubt crossing his son’s mind as strictly un-American.
“You gotta be kidding me, Guy,” he would say when his son started thinking about the case from the government’s point of view. “That Iraqi was a murderer, a terrorist and a threat to society, and even if it was true our guys punched him, he deserved it. You better get your head screwed on straight.”
The fact that Reschenthaler’s analysis came from careful legal examination of the facts and a natural tendency toward playing the devil’s advocate cut no ice with Reschenthaler Senior. And Guy still finds it interesting that his father’s views entirely echoed those of the vast majority of the American public.
Meanwhile a close camaraderie developed between Resch and Sam, who came to the legal office sometimes just to talk. The Navy had all three SEALs in some kind of a holding pattern. Every morning they checked into Team 10, and every morning they were dismissed and sent home. Sam found time to lay an entire hardwood floor at his home.
Exasperated and a little scared of the great unknown that lay ahead, he settled into a routine of brutally hard workouts and home improvements—a considerable waste of the million bucks it cost the US government to develop him into one of the world’s elite fighting troops.
And the more time the young lawyer spent with him, the more certain he was that Sam could not possibly have seen anyone punch the terrorist or conspired to cover it up. Sam had an aura of naval professionalism about him, and this cried out to Resch that the government had this one all wrong.
Willingly, Reschenthaler took on more and more of the workload for the team, particularly regarding the coming motion being prepared to support the CONFRONTATION CLAUSE. Hour after hour he combed through the discovery documents, telephoned potential witnesses, and researched for the legal team’s motions that might end this nightmare for the tough, rather ingenuous SEAL leader.
And the situation pleased everyone. Monica Lombardi was very busy building her private practice, and Drew Carmichael was loaded down with command leadership responsibilities. The fact that young Reschenthaler was prepared to work eighteen-hour days was a blessing.
And this gave him time to make the CONFRONTATION CLAUSE motion his pride and joy. As the junior defense attorney, he needed to tread fast, firmly, and carefully, skills long ago perfected by the hefty former Thomas Jefferson High School wrestler, whose Duquesne Law School was situated just a few hundred yards from the Pittsburgh Steeler’s end zone along the wide Monongahela River.
Although built like an M1 Abrams tank, at five feet seven inches, Reschenthaler was never destined to join the Rooney family’s black-and-gold warriors up there at the confluence with the Allegheny River, combat was still his instinct. And the courtroom suited him perfectly, especially the cut-and-thrust of criminal litigation.
And he picked up the CONFRONTATION CLAUSE motion and researched it as though he were on his way to the Supreme Court rather than a court-martial. He had agonized over every word and nuance. In Reschenthaler’s mind this was the key to the case. His youthful optimism told him that victory was not only essential; victory might also blow this case right out of the water. If his team could win Sam’s right to face his accuser but the government would not bring Al-Isawi to the United States, it had to be all over, right? No court-martial.
Well, nearly. Before a courtroom packed with journalists and spectators, Lombardi, the most experienced of the defense team, was armed with a motion largely written by Reschenthaler but also packed with skilled and experienced opinions written by Lombardi herself as well as Drew Carmichael.
To Reschenthaler it felt a bit like his own work, but he knew that it was a team effort and that Sam’s two more senior lawyers had made a major and mature contribution. All the necessary research, pertinent precedents, and solid argument were there for Lombardi. And everyone remembers the moment. With Sam sitting tense and white-faced between her and Reschenthaler, Lombardi stepped up and began: “May it please the court ...”
What followed was a masterly presentation of the newish law to which the Supreme Court had delivered such a crystal-clear precedent, articulating not so much a bedrock principle of the Anglo-American judicial system but a cry from the very heart of the gods of law—that every defendant has the right to face his accuser.
Lombardi did not care whether Al-Isawi was in Baghdad or Timbuktu, and she did not care how difficult it would be for the US authorities to get him to the Norfolk Naval Base. She coldly pointed out that according to Antonin Scalia, associate justice of the Supreme Court, the court-martial of Sam Gonzales and the other two SEALs could not proceed legally if the terrorist was not in attendance.
Her case was unstoppable. And a few days later the judgment of the military court was handed down: victory for the defense. The Supreme Court’s CRAWFORD decision had mandated that Sam and his codefendants, Matt and Jon, had the constitutional right to face Al-Isawi in court.
“Case over,” muttered Reschenthaler. “Because there’s no way they’ll bring this crazed jihadist into a US Navy yard.”
Right, but wrong. Paul Threatt came visiting, and he chuckled in his deep southern accent: “You guys gotta hear this one. I just found out we’re all flying to Baghdad!” And they were going to hear Al-Isawi’s testimony directly.
“WHAT?!” Carmichael and Reschenthaler exclaimed in unison, astounded at being virtually ordered to spend time in a heavily guarded courtroom in the most dangerous part of the most deadly city in the most lethal country in the Middle East.
“They’re just about to make it clear,” said Threatt. “if we want a piece of Hashim, they’re gonna fly us to Baghdad. I don’t know what’s going on, but our SEALs must have really pissed off some people in DC.”
Threatt was not crazy about it either. And neither was the lead defense attorney for Jon, Greg McCormack, who in many ways had only himself to blame. For it was he, McCormack, who had insisted that Al-Isawi was a crucial witness and that there could be no sworn deposition used in court in lieu of the terrorist’s live testimony.
McCormack had taken a firm position against any such suggestion—he was adamant that Al-Isawi was a necessary witness and that the trial should not proceed without his live, personal testimony in court that would allow members of the jury to see him and ask questions of him during the trial.
The argument was too good. The government’s lawyers began to splutter, and McCormack won the day. He was nonetheless taken aback when the judge suddenly resolved the issue by ordering the trials of Jon and Sam to be moved to Iraq, where the terrorist prisoner was now in Iraqi custody.
“I admit I was not real thrilled about it,” said the lawyer. “Iraq was a very dangerous place. And because of this, I had for several years refused multiple cases that were taking place over there. And now here I was, heading to Baghdad for this trial.”
Nothing, however, would have persuaded Jon’s attorney to withdraw from the case. He believed in the big SEAL’s innocence with missionary zeal. And in a series of dazzling legal maneuvers, he had succeeded in removing two of the three charges against his client.
The last triumph took place in the courtroom in Norfolk before Judge Carlos in late March. And right here, finally, the special agent who had mercilessly conducted the alleged abuse investigation out of Ramadi came face to face with someone who could answer back. The agent, an ex-sheriff from South Carolina and an ex-FBI agent, had been especially antagonistic at Jon’s interrogation, and he was still was no pushover.
But McCormack had filed a motion to suppress, and he had a critical point of law to prove, and this soon left the agent stuttering for words. In the end the attorney from Virginia Beach forced him to admit he had failed to read SO2 Keefe his proper rights when he had him in that room at Ramadi.
The issue was Jon’s second statement, which he was coerced into making despite the existence of the first. In these cases it is mandatory upon the government to inform the accused of the “cleansing warning,” when he must be told that that first statement will not be used against him in a future court-martial. The special agent had issued no such warning, and McCormack left him swinging in the wind.
Judge Carlos granted the motion, threw out the charge involving Article 107, that Jon, asserting that he did not see anyone abuse or mistreat Al-Isawi, had made a “totally false” statement that was known by Jon to be so false. The judge’s ruling was firm: There was “no cleansing warning”—and that made it unfair and against military law. Goodnight Vienna.
“Right at that moment I knew I had a chance,” says Jon now. “Greg was awesome. I’d always been told I had one heck of an attorney. And now I’d seen it firsthand, right there in that courtroom. He was right up there, fighting for me, arguing, acting like the charge against me was a crime against humanity.
“I remember sitting there watching him and thinking, ‘Jesus! I’m glad he’s on my side.’”
When McCormack was all done with the charge that Jon had deliberately made a falsified statement and Judge Carlos was all done with the accusation he would not allow on a point of law, all that was left was the charge that Jon had somehow committed a “dereliction of duty.”
Above all other things McCormack understood how much Jon was counting on him. So despite Baghdad bombs, high explosives on desert roads, suicide attacks, and ambushes, he would have walked barefoot to Iraq to protect Jon.
And by now he had become a genuine expert on the case. He had interviewed Westinson in what was probably the most demanding two hours and twenty minutes of the young guard’s life. McCormack had probed, demanded, questioned, and reminded as he pieced together all that had happened in the half-light of Camp Schwedler in the hours right before the sun had risen above the eastern horizon of the Syrian Desert on that ill-starred September morning.
And while McCormack, Puckett, Threatt, Reschenthaler, and Lombardi were all pulling the legal documents together, all three SEALs continued in the no man’s land into which they had been cast. Almost daily they attended their lawyers’ offices, with Matt driving to Washington and the others to Virginia Beach.
Sometimes the cases seemed to swing their way; other times the obdurate mind-set of the government’s prosecutors made life very tense. The SEALs were uncertain how soon they would have to sell their homes to help pay for their counsel. And they all found it impossible to accept that they were no longer active members of SEAL Team 10 and must soon face living in quite badly reduced circumstances.
One particular visit to McCormack’s office stands out in Jon’s mind. It was a midweek afternoon, and he arrived to be introduced to three more members of the prosecution team, none of whom he had ever seen before.
“I do not remember the precise words they used,” he says now. “But the meaning was as precise and focused as anything could be. They told me, ‘We want to cut a deal with you.’”
At this Jon looked blank. And then they told him that if he would rat on Sam and Matt, and say he saw Matt hit the terrorist, then he would be given “a clean slate and sent on his way.”
The SEAL breacher tried to gather his thoughts as he wondered, Who are these guys? His mind raced, and then he looked at the silent Greg, sitting behind his desk.
Jon just blurted out: “This is a total waste of time.”
McCormack spoke slowly and said, “This is your decision. If you want to say ‘Okay’ and rat on your buddies, then I will also make you a promise ... you will not have to pay me one dollar.” And he pointed to the legal documents, which the new prosecutors had placed on the desk, and added, “Sign those, and it’s over.”
SO2 Keefe, Echo Platoon’s heavyweight combat operator, said nothing. And the prosecutors’ lead man further extended the hand of quasi-friendship. “Jon,” he said, “you can move to the West Coast, far away, in a place where you would not be hated for ratting on your buddies.”
“This guy had to be either dumb or insane,” recalled Jon. “But he obviously had no idea what it meant to be a combat member of a SEAL Team. I thought then of telling him I would allow someone to cut off my right arm before I would say one word against any of them. And I believe they would have done the same for me.
“Was this guy nuts?” he went on. “If I, or any other SEAL, ratted on a teammate, he would be hated from one coast to the other and all points in between. Besides, they were asking me to lie. Matt never hit anyone.”
SO2 Keefe continued with his grim, blank stare, slowly allowing it to evolve into one of pure contempt. And he still relives the moment, when representatives of the US government “asked me to lie about my buddies who’d done nothing wrong.”
He just stood there. And then he said, “No.”
The prosecutors picked up their papers and left. It had lasted all of ten minutes. But in Jon Keefe’s mind it was an everlasting ten minutes.
McCormack was, of course, not surprised. He had been obliged to act impartially, and he had done so, evenhanded to the end. But he later admitted, “I could have told them it was about seven billion to one against Jon betraying Matt and Sam. But I had to let it play out. It was such a monumental offer, I knew the decision had to be his. I also knew what that decision would be.
“If they’d offered Jon Keefe all the world, he’d still have turned them down. You had to know him well to fully appreciate what kind of a guy he was.”
Jon himself remembers leaving McCormack’s office and thanking God for the presence of the tough, relentless attorney in his corner. McCormack had served in the US Army as a military prosecutor and knew what it would take to win this case—three decades of experience had taught him that.
But Jon was just learning, though he’d already experienced the sheer weight and numbers of men who were against him. He never again met or even saw the three negotiators who had visited McCormack’s office, “which I guess showed they must have an unlimited supply of people working to convict us,” he said.
“I knew I could count on Greg. But those new guys, I didn’t know where they came from. All I knew was the Army was leveling the charges, and they had naval JAGs to make sure they got it done.
“I guess I knew, from here on, it was me, Matt, and Sam—us against the United States military.”