I have finally been able to lay my hands on some of the motions and government responses from the two SEAL courts-martial in Iraq next week.
The request for immunity/abatement of proceedings is by far the most interesting. In summary, the defense witnesses are prepared to testify that (1) the accuser, MA3 DeMartino, previously told them that he did not know what happened to the detainee, (2) they observed the detainee at various times before and after the alleged assault and did not see any signs of abuse, (3) that MA3 DeMartino was alone with Ahmad Hashim Abd Al-Isawi, (4) they did not see Petty Officers McCabe, Keefe and Huertas assault or alone with Ahmad Hashim Abd Al-Isawi. One of the accused essentially asked for abatement unless the witnesses were granted immunity. The defense argued that the evidence would assist the trier of fact in establishing the timeline of events. Defense counsel also argued that,
The testimony of each witness in the case at hand is highly probative on the issue of the alleged detainee abuse in that they directly attack the government’s case on the events of 1 September 2009. Not only does the accused have the right to present such relevant testimony, the trier-of-fact needs to be presented with such evidence to make their own judgment concerning creditability. The live testimony of each witness is necessary, relevant and ensures the accused’s right to a fair trial.
The government responded that immunity was inappropriate because none of the witness proffers revealed any incriminating statements and none of the testimony “demonstrated that any of the requested witnesses’ testimony is clearly exculpatory.” The government states,
[T]he proffers of the defense witnesses are not clearly exculpatory and do not exonerate the accused. In essence, the witnesses deny knowledge of any abuse or subsequent cover-up. A denial of knowledge does not exonerate the accused of the offenses he is charged with in this matter.
Judge Carlos ordered the proceedings abated unless immunity was granted, see Virginian-Pilot story here. The Pilot’s story indicates that Judge Carlos found (a) “the five witnesses’ testimony would shed doubt on the guard’s allegations,” (b) “[n]ot granting them immunity . . . is either an attempt to gain tactical advantage over the defense or evidence the government is overreaching,” (c) “the expected testimony would be exculpatory” because they would testify that “after Abed’s capture . . . the guard was occasionally left alone with the detainee,” and (d) the witnesses would testify that the government witness denied knowledge of the alleged assault when questioned. I don’t know if that legally adds up to immunity, but, even if it was a close call (which it appears tobe), as we reported here, MG Cleveland, the CA, granted immunity after the Judge’s order.
Also, I have looked over the names of the witnesses and one of them stands out from all the rest as someone I know I have seen in Naval Academy press. If anyone can confirm that I have the right officer, please email me at email@example.com, as I want to be extra careful.
Dismiss the Impeding Charge
SO1 Huertas has also moved to dismiss the impeding an investigating charge for failure to state an act by SO1 Huertas that constituted the attempt to influence MA3 DeMartino’s testimony. Haven’t seen the G’s response, but here is the spec. for you to decide if it is sufficient:
[Blah, blah, blah] did, on divers occasions at [***] Iraq, on or about 1 September 2009, wrongfully endeavor to impede an investigation by wrongfully attempting to influence the testimony of Petty Officer Third Class [***] . . . as a witness before an investigating officer.
(Ok, it doesn’t say blah, blah,blah, but that part isn’t really relevant) By the by, the spec. includes two of the clauses that typically come before the “by” in the model spec at Paragraph 96.f. In this spec. one of those clauses is before the “by” and the other after the “by,” rather than some sort of act that usually comes after the “by.” But, I won’t pretend to know if that alone has any effects the validity of the spec., just an observation.
Also, we now know that the witness was MA3 DeMartino, the individual that initially reported the offenses. A key moment in these cases may be MA3 DeMartino’s testimony about when SO1 Huertas’ allegedly attempted to influence his testimony, particularly, was that act before or after the MA3 allegedly denied seeing any assault on the detainee.
The motion to suppress the false official statements has been covered, here, it was an easy. The facts were that Huertas and Keefe were interviewed by an IO and read Art. 31(b) rights. Huertas and Keefe were then re-interviewed by an NCIS agent without him reading them their rights.