You know Salvador Dali’s painting, “The Persistence of Memory” — the one with the melting clocks? That’s how it felt at the McCabe court-martial today. For reasons I still don’t understand, this afternoon it took 3 hours and 40 minutes to play a recording of a 2½ hour deposition.
The day got off to a slow start because one of the members, a senior chief, arrived 70 minutes late due to a hurricane exercise. During the delay, the military judge summarized an 802 conference for the record. She indicated that former CAAF Chief Judge Eugene Sullivan–counsel for some of the SEAL witnesses in the case — had requested to protect the identity of those witnesses, a request that we at CAAFlog are happy to comply with. Also during that Article 39(a) session, the defense asked for a new deposition of the alleged victim in the case due to the poor quality of the translation during the deposition — a motion that the military judge denied. SO2 McCabe then elected trial by members with enlisted representation, followed by Neal Puckett, the lead civilian defense counsel, entering pleas of not guilty to all charges.
The defense then offered for introduction portions of the Manchester Manual, with its famous (or, as it turned out later in the day, maybe not so famous) entreaty that al Qaeda members captured by the enemy should claim torture. Lead prosecutor LCDR Jason Grover [familiar disclosure] responded that the government had no objection to taking judicial notice of that part of the Manual, but he objected to the rest of the excerpts on foundation, authenticity, relevance, and MRE 403 grounds. Argument followed over whether portions of the excerpts, such as a section proposing the establishment of a Caliphate, would inflame the members. Ultimately the military judge overruled the government objection and admitted the defense exhibit without the defense ever having laid any foundation.
Voir dire was next. The original panel consisted of four officer members — a captain, two commanders, and a lieutenant — and four enlisted members — two senior chiefs, a chief, and a petty officer first class. The biggest surprise of the day occurred during group voir dire, when only two of the eight members indicated that they had heard or read anything about the SEAL cases. Also during the military judge’s questioning, the senior chief who was late for today’s proceedings answered affirmatively to the question about whether anyone’s duty would interfere with serving as a member.
Following the military judge’s voir dire, LCDR Grover questioned the panel. He began by asking whether the members agreed that doing the right thing sometimes isn’t easy. He then asked if they agreed that doing the right thing sometimes isn’t popular. He asked whether the members agreed that no sailor’s job description gives them a free pass to commit crimes. He obtained the members’ agreement that beyond a reasonable doubt doesn’t mean beyond all doubt. He then obtained their agreement that if the Government proved its case beyond a reasonable doubt, it was the members’ duty to convict. He then asked if they could perform that duty even if it is uncomfortable or unpopular.
Neal Puckett then voir dired the panel. He started by introducing his co-counsel Haytham Faraj–and, to quote Dave Barry, I swear I’m not making this up–as “not Vin Diesel.” He then solicited the members’ understanding that a court-martial conviction creates a permanent record that’s reported to law enforcement authorities. He went on to emphasize the presumption of innocence, the burden of proof, and the accused’s right not to testify–joking at one point that this sounded like a civics lesson. He obtained the members’ agreement that they wouldn’t hold it against SO2 McCabe if he didn’t testify at the court-martial. He then emphasized that each member was entitled to an equal voice and each member is entitled to vote his or her own conscience. He expressly sought and obtained the senior and junior members’ agreement to those concepts. He also sought and obtained all the members’ agreement that Major General Cleveland, the convening authority, wouldn’t be embarrassed or upset if the case ended in an acquittal. He also sought and received their assurance that they understood the importance of the case’s outcome to SO2 McCabe.
The Government asked for individual voir dire of the senior member and a commander–the only two members who indicated that they had been exposed to publicity about the case. Both indicated that they could disregard what they had read. The late senior chief was then recalled for individual voir dire by the military judge. He explained his role in the hurricane exercise at the Norfolk Naval Support Activity. LCDR Grover asked whether if he sat as a member, he would be distracted by his duties; after a more ambiguous initial response, he said there was a good chance he would be.
The defense made no challenges for cause. The Government challenged the senior chief. The military judge asked whether the defense concurred. Instead, Mr. Puckett shrewdly opposed the challenge for cause. The military judge then denied it, leading the Government to exercise its peremptory challenge against the senior chief. Had the military judge granted the causal challenge against the senior chief, I assume that the Government would have used its peremptory challenge to remove one of the two officers who had been exposed to pretrial publicity. The defense didn’t make a peremptory challenge.
Once the members were seated, the proceedings broke for an early lunch. The court-martial resumed with opening statements. LT Kadlec opened the Government’s presentation by reading a portion of the Navy SEAL ethos. He continued, those are words that the accused has been taught from Day 1, standards that set him apart. On September 1, he failed to live up to those standards. He punched a detainee in the abdomen. He watched as the detainee fell to the ground. He left as the detainee lay on the floor, bleeding. This didn’t happen during the capture. It didn’t happen during the mission. It happened in a con-ex box at Camp Schwedler. LT Kadlec then acknowledged weaknesses in the Government’s case, noting that it rests on the testimony of a terrorist and “an MA you’re probably not going to like very much.” He concluded by returning to the SEAL ethos and discussing moral courage as doing the right thing. The opening took less than five minutes.
Neal Puckett followed with a 12-minute opening for the defense. He offered nine questions the members should use as a framework for their deliberations:
(1) How was the detainee handled on the objective and during transportation?
(2) When does the detainee claim abuse began and how long did it last?
(3) Where were SO2 Keefe and SO2 McCabe going when they arrived at the detention facility?
(4) When was blood first discovered on the detainee?
(5) What does medical screening immediately after the alleged assault show?
(6) When were the Government’s photographs of the purported injury taken?
(7) What does an oral surgeon say about the lip wound?
(8) Why would nine naval officers and petty officers lie under oath?
Finally, in a reprise of Admiral Stockdale’s famous quotation, (9) Why are we here? — a question that Mr. Puckett characterized as “maybe the most important.”
Mr. Puckett told the members that the evidence would show that the SEALs did something they’re trained to do — go to get someone and bring him back. He explained that the SEALs were serving an Iraqi arrest warrant as backup to an Iraqi SWAT team. He described the alleged victim as a terrorist, insurgent, and mass murderer. He then described Abed’s allegations of abuse. He emphasized that when a SEAL lieutenant first saw blood on Abed, he asked the master-at-arms guarding the detainee — Petty Officer Demartino — what had happened and Demartino three times responded, “I don’t know.” Only upon being asked a fourth time did Demartino say that some “Team guys were in there.” Mr. Puckett then described the investigation that the SEAL lieutenant initiated. When “shooter statements” were obtained, he told the members, Petty Officer Demartino was “freaking out.” An NCIS agent then took statements and the matter was elevated up the chain of command.
Mr. Puckett showed a picture of Abed’s lip to the members, describing what appeared to be a sore. He told the members they would hear from an oral surgeon that it didn’t appear to be the result of trauma, but rather a canker sore — and that that sore could have been the source of the blood that the lieutenant saw. Mr. Puckett then described the Manchester Manual and said al Qaeda members are trained to feign abuse and blame it on American servicemembers. He said it’s entirely likely that the source of the blood on Abed was self-inflicted and that this may have caused the petty officer who was responsible for Abed to panic and make bad decisions. Mr. Puckett concluded by telling the members that at the close of the case, they would not merely not be convinced beyond a reasonable doubt, but would truly believe that SO2 McCabe is innocent — because he is.
THE GOVERNMENT’S CASE-IN-CHIEF
The Government started its case by calling the commanding officer of the Seal Team to which SO2 McCabe was attached while in Iraq. But before he testified before the members, the defense asked to take up the admissibility of two documents for which he would attempt to lay a foundation during an Article 39(a) session. Over the Government’s objection, the military judge agreed. Ultimately, both of the documents — a 16-page commander’s intent document for the SEALs under his command and the SEAL ethos — were admitted. The SEAL commander then testified before the members, explaining his unit’s mission and organization while in Iraq. He also described his commander’s intent memorandum and the SEAL ethos. He testified about his command climate, emphasizing that “we’re Sailors in the Navy first” and special operators only after that. He spoke of the imperative to operate in a legal, moral, and ethical manner. He then testified that no one in his unit would think that it’s okay to beat a detainee. A tense cross-examination by Mr. Faraj emphasized that the commander was geographically remote from SO2 McCabe’s during most of the predeployment period, and he had no personal knowledge of how his commander’s intent was passed on to the SEALs in SO2 McCabe’s unit. Mr. Faraj also elicited testimony from the SEAL commander concerning Abed’s suspected misdeeds, including responsibility for the killing of Blackwater contractors in Fallujah in 2004. But when Mr. Faraj asked about the Manchaester Manual, the SEAL commander didn’t know what it was. He did agree, however, that terrorists might feign injury, adding that “we see that in the U.S. penal system as well.”
The rest of the afternoon was devoted to playing an audio of a deposition of Abed conducted earlier in Iraq. The translator for the deposition, as the defense had argued, appeared to be fairly poor — and according to his own statements on the record, must have been at least 75 years old and was hard of hearing in his right ear. During the government’s direct examination, Abed described being apprehended in his home and then flown to another facility. He was later moved again, where, according to his testimony, while in U.S. custody and while handcuffed and blindfolded, he was kicked in the abdomen and fell to the floor. He testified that he was then kicked several more times while on the floor. That was followed by an extensive cross-examination, during which LT Shea — the detailed defense counsel — inquired into his background, his income, the discovery of $6,000 in U.S. currency at his house, his employment, his capture, transportation, and treatment. About 2/3 of the way through the deposition, the defense asked for permission for LT Shea to use an easel in the courtroom to note inconsistencies in Abed’s testimony while the deposition audio was played. Over Government objection, the military judge allowed the defense to do so during the remainder of the deposition.
The presentation of the deposition finally ended at about 1640 and proceedings were adjourned for the day. The Government’s case-in-chief will resume at 0800 tomorrow.
As I indicated yesterday, I’m only down here until the close of business tomorrow. It’s now apparent that there’s no chance the case will be done by then. So on Thursday — and perhaps even Friday if clocks continue to melt– we’ll post links to journalists’ coverage of the case and its outcome.