Navy Seals Could Face Year in Prison Over Alleged Punching of Terrorist Suspected of Masterminding Fallujah Murders
December 3, 2009 - 8:00 PMThe Navy Seals facing court martial over the alleged punching of a terror suspect arrested for killing four Americans could face up to a year in military confinement, discharge for bad conduct, and forfeiture of two-thirds of their pay for a year, if convicted, according to defense attorneys.
Further, their attorneys said that the possibilty that they would not be able to cross-examine their clients' accuser would be grounds for dismissing the case.
The accuser, Ahmed Hashim Abed, is the alleged architect of the murder of four Blackwater USA security guards in Fallujah, Iraq, in 2004. The bodies of the four Americans were burned and hanged from a bridge for display.
The three Navy Seals--Matthew McCabe, Jonathon Keefe, and Julio Huertas--will be arraigned on Monday in Norfolk, Va. They are facing a special court martial--which is equivalent to a misdemeanor charge--and have each denied the allegations of abuse and cover-up.
The trial date for McCabe, the Seal charged with the alleged assault, is tentatively set for Jan. 19, 2010, McCabe’s attorney Neal Puckett said.
Defense attorneys told CNSNews.com that they are waiting to see the evidence from military prosecutors because it is still under review to determine if it is classified. Even the charges, the only court filings in the case thus far, are still under review.
“The government has not handed over anything,” Huertas’ attorney Monica Lombardi told CNSNews.com. “They are now claiming that things are classified, but they are not saying what’s classified and what’s not classified. I filed my discovery request, and they denied it, pending a classification review. … We have no photographs of the alleged injuries. We have no medical reports of these alleged injuries.” Keefe’s attorney Greg McCormack will not speak to the media about the case, his receptionist told CNSNews.com.
Attorneys for both McCabe and Huertas said they would insist on cross-examining Abed. The Constitution grants Americans the right to face their accuser at a trial.
“If somebody was trying to claim that you assaulted them, but they refused to come into court, what prosecutor in what state would deny you your right to confrontation of the alleged victim?” Lombardi said.
When CNSNews.com asked what would happen if the military declined to bring Abed to the United States to testify for security reasons, Lombardi said, “It would be, at that point, we could ask the judge to dismiss the charges.”
McCabe, a special operations petty officer, second class, is charged with assaulting the detainee for reportedly punching him in the midsection; with dereliction of duty for failure to safeguard the detainee; and with making a false official statement on the matter.
Though news reports differ on whether it was a punch to the gut or a bloody lip, Puckett says the official charge is a punch to the mid-section.
Huertas, a special operations petty officer, first class, is charged with dereliction of duty, making a false official statement and impeding an investigation.
Keefe, a special operations petty officer, second class, is charged with dereliction of duty and making a false official statement.
Under special court-martial rules, all three defendants would face the same maximum penalty, Puckett said, even though the charges against each one deviate slightly. The maximum penalty for the charges would be one year in military confinement, reduction of two-thirds of their pay for a year and discharge from the military for bad conduct.
Lombardi said Huertas greatly appreciates the public outpouring of support since the reports first surfaced of the arrest.
“My client is extremely grateful for all the support from the American public,” Lombardi said. “He’s a career professional who’s just doing his job. It boosts your morale when you know that you go over there and are doing your job and the American public actually does care about what you’re doing. He’s really humbled by it.”
The military first sought non-judicial punishment, called a “captain’s mast.” It would have spared them any chance of imprisonment but would have severely harmed and possibly ended their military careers, Puckett said.
“There was some pressure on them to accept a lesser form of punishment,” Puckett said. “That would have meant that some commander had predetermined their guilt and would have punished them in a way that would have ended their careers. They weren’t willing to accept that and felt that it would not be a fair hearing.”
They each refused the captain’s mast and opted for a court martial, which is a military trial, to clear their names. The punishment from a court-martial conviction could be greater.
Though it was a better option than accepting guilt, Puckett said, such charges should have never been brought.
“Forget what the punishment would be, even a conviction would be a federal conviction for these guys,” Puckett said. “A federal conviction alone--even before you consider what punishment they get--is grossly disproportionate to the misconduct that’s alleged.
“If we’re talking about the detainee getting punched in the gut by Petty Officer McCabe, given the evil that guy [Abed] is alleged to have wrought on American contractors back in 2004 in Fallujah, it seems that it’s overkill to think that it’s appropriate to send these guys to court martial,” Puckett added.
Puckett suspects this was an overreaction by military brass in regards to detainee abuse.
“The most obvious speculation to me seems to be that the American military and particular Army commanders, and this was an Army commander, are overly sensitive to allegations of detainee abuse in the wake of Abu Ghraib,” Puckett said. “I think they feel a need to overly punish, overly react to these allegations to keep future ones from happening again.”
The alleged punch happened on Sept. 1 when Abed was in captivity.
Abed, after his capture, was held at Camp Baharia, a U.S. base outside of Fallujah. He was briefly handed over to Iraqi authorities and then returned to U.S. custody. Another petty officer, not a Navy Seal, reported the alleged abuse, Lombardi said. It then went up the chain of command, and the commanding general ordered the charges.
Lombardi believes if there was any abuse, it might have happened on the Iraqi side.
“He was turned over to the Iraqi police,” Lombardi said. “He is an Iraqi citizen. Eventually, he’ll go home. Wouldn’t it be a lot better to claim the Americans abused you than the Iraqi police?”
Lombardi said there is a legal defense fund for the Seals, and that she is glad the public can see the Seals were doing the right thing.
“They were capturing a terrorist that we’ve been searching for, for five years. They did it in a professional manner,” Lombardi said. “When you think you’re doing everything right and you’ve got somebody saying, ‘no, you did it wrong,’ it’s really nice to know everybody is saying, ‘you did it right. You did us a favor. Why are you being punished?’”