- The Washington Times
Monday, May 3, 2010

The U.S. military is issuing an extensive defense of its decision to prosecute three Navy SEALs on charges of abusing a terrorism suspect they had captured in Iraq, after two of the servicemen were found not guilty during courts-martial.

The case of the SEALs — Petty Officers Julio Huertas, Jonathan Keefe and Matthew McCabe — has outraged many Americans who see the prosecution as weakening the war on terrorism. Some members of Congress have condemned the criminal charges as unnecessary, while thousands of people have signed up on Facebook pages to support the specialized warriors.

Petty Officers Huertas and Keefe were acquitted of charges of dereliction of duty and impeding an investigation during courts-martial last month in Baghdad. Petty Officer McCabe, who is accused of punching Ahmed Hashim Abed after capture, goes on military trial Tuesday in Norfolk, Va.

“It is our hope now, just as it has been since these events were brought to our attention in September 2009, that justice will be reached through a properly constituted process, no matter how unpopular this case is, and no matter how often it has been misinterpreted by some members of the media and/or other people who do not know all the facts surrounding the incident,” Lt. Col. Holly Silkman, a spokeswoman for U.S. Central Command, told The Washington Times in an e-mail.

Petty Officer McCabe’s attorney, Neal Puckett, has called on Army Maj. Gen. Charles Cleveland, who brought the case as the top special-operations officer at Central Command, to drop charges that his client punched Abed, who was captured last year on suspicion of masterminding the 2004 killings of four Blackwater security guards in Fallujah.

Mr. Puckett noted that Abed and a Navy petty officer master-at-arms testified as the chief prosecution witnesses at separate trials last month in Baghdad that ended in the acquittals of Petty Officers Huertas and Keefe.

“The commander should dismiss charges because a jury and a judge have acquitted two SEALs after hearing identical evidence purporting to establish that McCabe punched a detainee,” Mr. Puckett told The Times.

“I learned that a debrief of the jury revealed that not a single one of the six court members believed either the terrorist or the Navy petty officer. The two verdicts should be respected as conclusively establishing McCabe’s innocence,” he said. “The command can no longer proceed on a good-faith belief that they are prosecuting a guilty sailor.”

But Col. Silkman said the McCabe court-martial will go forward.

“The investigation raised serious questions about the accounts given to the U.S. investigator, and the matter must be adjudicated,” Col. Silkman said. “The fact that a special court-martial has been convened rests on the key decision made by [Petty Officer] McCabe and his defense counsel to refuse administrative punishment.”

The three SEALs could have received a disciplinary reprimand, but requested courts-martial to clear their names. If convicted, Petty Officer McCabe faces up to a year in prison, reduction in rank, loss of one year’s pay and a bad-conduct discharge.

Col. Silkman said it is important for the military to treat detainees properly no matter their background.

“The evidence gathered in this case points to an alleged assault of a flex-cuffed, blindfolded detainee who was in the custody of U.S. forces, and the alleged perpetrator is a member of a highly trained special-operations unit, well-versed in rules on the proper treatment of detainees,” she said. “The assault did not occur during actions on the objective site, but rather while the detainee was in U.S. custody.

“If the alleged assault occurred, this reflects on the good order, personal integrity, and discipline in a unit where those qualities are of the utmost importance in its members. Furthermore, allegations of abuse by U.S. forces have strategic implications that can hinder the very efforts of the very same forces to keep the American people safe. The background of the detainee is not the focus; the alleged assault of any detained person would be illegal and therefore must be investigated, and then adjudicated properly.”

Abed is being held on order of an Iraqi judge. Defense attorneys at last month’s courts-martial homed in on Abed’s inconsistent testimony and evidence that al Qaeda operatives are trained to claim abuse.

The other key prosecution witness, the master-at-arms at the base in Anbar province, also gave varying statements, according to press reports from the trial. Other SEALs rebutted his version of events.

Monica Lombardi, who represented Petty Officer Huertas, said that Abed’s testimony, which will be played at Petty Officer McCabe’s trial via a video deposition, is simply not believable.

“After the trial, I spoke to the members of the jury, and they did not believe the terrorist at all,” Ms. Lombardi said. “They said his testimony was a complete lie. He basically claimed there was a beat-down. ‘Oh, they beat me on my shoulders and my back, and my stomach and they kicked me in my legs.’

“I have the photographs that were taken about the day after this alleged beat-down, and there were no injuries,” she said. “And I had argued to the jury if a bunch of Navy SEALs was kicking and punching him, he would really be in bad shape. And obviously, he wasn’t.”

Ms. Lombardi also discounted the testimony of Petty Officer Kevin DeMartino, the master-at-arms who says he saw Petty Officer McCabe strike Abed.

“With the petty officer who claimed to see the one punch, I discredited his testimony,” she said. “There were too many inconsistencies in his testimony that the jury could really rely on that. So the jury just said it was not even close. There was just so much doubt to the story. He claimed to have conversations with other members of the team that were out there. … He said, ‘I told them I saw some abuse.’ Three people said when they testified that conversation never happened.”

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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