Ahmad Hashim Abd al-Isawi

Following his incarceration at Camp Schwedler, al-Isawi alleged, with blood on his lip and shirt, that he had suffered abuse as a detainee. According to U.S. authorities, a jihadist manual discovered in 2000 instructs captured operatives to immediately claim to have been mistreated.[10][17] Petty officer third class MA3 Kevin DeMartino who had responsibility for supervising al-Isawi, and had left him unsupervised in violation of procedures,[18][19] offered corroboration that McCabe had struck al-Isawi in the stomach[20] while other SEALs failed to intervene. Members of the SEAL team were interrogated and encouraged to confess to misdeeds in return for receiving non-judicial punishment,[10] which they refused and exercised their right to demand to face a court-martial.[10] McCabe, Jonathan Keefe, and Julio Huertas ultimately faced courts-martial on charges including assault (McCabe only), making a false official statement, and dereliction of performance of duty for willfully failing to safeguard a detainee.[3][4][1]

SEAL Team members offered testimony on the character of the SEALs and what they had witnessed. This included Carl Higbie, who participated in the capture of al-Isawi[2] and has written two books about the raid and its aftermath.[21][22] Dozens of Republican lawmakers wrote to Secretary of Defense Robert Gates, President Barack Obama, and Chairman of the Joint Chiefs of Staff Admiral Michael Mullen seeking their intervention;[1][23] Dana Rohrabacher (R-CA) called for the Pentagon to drop all charges against the SEALs,[1] a call echoed by groups like Move America Forward[24] and in conservative media.[25] Dan Burton (R-IN) was willing to testify for McCabe about the public support for the SEALs and the outrage at them being tried.[17] Claims were made of unlawful command influence, alleging that Major General Charles Cleveland had been inappropriately influenced as the convening authority to proceed to court-martial rather than to dismiss the trial. These were dismissed at the McCabe court-martial,[1] but the belief that decisions were driven by the shadow of Abu Ghraib persists in some quarters.[14] Colonel Dwight Sullivan, USMCR, was the Chief Defense Counsel for the United States for the Guantanamo military commission from 2005 to 2007 and attended the court-martial; he recorded his observations and analysis at his CAAFlog site.[18][26][27][28][29]

Evidence presented in the McCabe court martial can be divided into four broad categories: video testimony from al-Isawi as the alleged victim, direct testimony from DeMartino regarding the alleged assault, testimony and character evidence from SEAL team members and other witnesses, and medical evidence. al-Isawi's recorded testimony was played for the court first, in which he alleged that "while handcuffed and blindfolded, he was kicked in the abdomen and fell to the floor ... [and] then kicked several more times while on the floor."[26] During the video playback, the defence used an easel to present what it described as inconsistencies in al-Isawi's testimony.[26] Evidence was then submitted of al-Isawi's suspected involvement in the Fallujah killings, and testimony presented that he was "believed to have killed hundreds of Iraqis"[18] and earned the nickname "The Finisher" amongst Iraqis, for his reputedly having "the decapitated bodies of his victims delivered to their families' doorsteps."[30] The detachment officer-in-charge, the direct commander of both McCabe and DeMartino, testified for the government under a grant of immunity that he observed blood on al-Isawi's lip. Under cross-examination by the defense, he suggested that al-Isawi was "hamming it up" and faking injuries, and said the detainee "sucked on the sore in his mouth to mix blood in with his saliva and spit it out after he heard Iraqi voices";[18] an oral surgeon confirmed that the blood may have come from biting a mouth ulcer.[4] At the Huertas court-martial, photographs of al-Isawi's "face and body taken in the days immediately after the alleged attack" were presented in evidence, and showed "a visible cut inside his lip but no obvious signs of bruising or injuries anywhere else."[31] Consequently, with the claim of repeated kicks unsupported by physical evidence and the testimony that the bleeding lip may have been self-inflicted, both the defense and some subsequent commentary argued that al-Isawi was following the directions in the al-Qaeda manual to claim mistreatment.[17][32]

Following his capture, al-Isawi was to be handed over to Iraqi authorities but they were unable to accept custody until the following morning, forcing his detention in Camp Schwedler, which lacked a proper detention facility. DeMartino took responsibility for al-Isawi despite the second master-at-arms having been transferred back to the United States,[32] and admitted during direct testimony that he was consequently in dereliction of duty both in accepting the prisoner and in leaving him unattended.[18] According to Fox News, DeMartino's account of subsequent events and conversations was contradicted by "a string of witnesses ... many of them Navy SEALs", who depicted him as "unstable" and "an unreliable witness."[4] Sullivan wrote that "DeMartino's testimony was probably the most important portion of the court-martial"[18] and that most of the conflicts between his testimony and that of other witnesses "aren't the kind of thing that two people might have different honest recollections about. Rather, to convict, the members would have to believe that a number of officers and petty officers—SEALS and non-SEALs—are lying."[27] The prosecution presented DeMartino's former superior officer as a rebuttal witness, who described his former subordinate as "one of my top sailors—I can depend on him for anything."[4] The defense attorney described the prosecution as "asking the jury to take the word of a terrorist and a sailor who admitted initially lying about the incident."[20] Following the completion of the government case and even without all of the defense case having been presented, Sullivan noted that "[b]ased on the evidence presented thus far ... I would conclude that the Government has not established its case beyond a reasonable doubt. In fact, if this were a civil case, I would find that the defense prevails under a preponderance of the evidence standard even before seeing the complete defense case."[27]

All three men were acquitted, with the Keefe and Huerta courts-martial taking place in Iraq to allow al-Isawi to testify in person.[3][4][19] Commentary in conservative media has criticized the Navy for its handling of the abuse allegations.[2][33][34] Ray Hartwell, for example, described the U.S. military leadership as having responded just as al-Isawi would have hoped when he "played the 'abuse' card", by turning against their own troops.[7][33] Keefe and McCabe expressed their views through their collaboration with Robinson on his book titled Honor and Betrayal: The Untold Story of the Navy Seals Who Captured the "Butcher of Fallujah"—and the Shameful Ordeal They Later Endured.[14] Higbie also expressed his views, both through his books[21][22] and in interviews where he blamed the courts-martial on the Obama administration.[2][34] Robinson's book describes the capture of al-Isawi and subsequent events,[14] and its source material includes interviews with seven of the lawyers involved in the McCabe trial; the author's stated aim[14] was to open the door on the functioning of a high-profile court-martial, something rarely seen because "they're essentially secret." While covering the facts of the events, Robinson also expresses his view that the experiences of McCabe, Huertas, and Keefe were "shocking as their commanders essentially hung them out to dry," and describes the McCabe trial as "notorious in its unfairness and anger making to the entire American public."[14] By contrast, the acquittals were met with anger in Iraq, with the head of the Iraqi human rights group Hammurabi describing the courts-martial as "just propaganda for [American] justice and democracy";[31] another Iraqi was quoted as having responded to the verdict in the Huertas court-martial by saying that "[t]hey would release him even if he had killed an Iraqi and not just beaten him."[31]