Cracks are beginning to appear in the military's prosecution of three Navy SEALs accused of striking a most-wanted terrorism suspect they had captured in Iraq.
Maj. Gen. Charles Cleveland last week signed grants of immunity for five Navy colleagues of the accused.
Some of those five, three enlisted men and two officers, are expected at trial to flatly contradict the prosecution's key witness, according to a Navy source close to the case, which centers on the September 2009 capture of Ahmed Hashim Abed.
The witness, the master-at-arms at the base in Anbar province where the captured terrorist was brought, told investigators that he saw Abed being struck by one SEAL. One of the immunized witnesses identified by the master-at-arms for corroboration is not expected to support his testimony. The military has not released witness statements.
In addition, the defense has requested that the judge order the government to turn over the name of the Army officer who interrogated Abed once he was brought to Baghdad, where he remains in custody on order of an Iraqi judge. The disclosure would mean that defense attorneys may call him as a witness to testify about Abed's appearance after he left the SEALs' custody.
A judge has ruled that the military must produce Abed as a witness for courts-martial, scheduled to be conducted in Baghdad perhaps as early as next month. Defense attorneys, in front of a military jury, can expose Abed's history as the suspected mastermind of the 2004 Fallujah atrocity that left the bodies of U.S. contractors hanging mutilated on a bridge.
The master-at-arms told investigators that Abed was punched in the gut by Special Operations Petty Officer 2nd Class Matthew McCabe. Petty Officer McCabe denies hitting Abed.
"We're pleased about the immunity grants," said Neal Puckett, Petty Officer McCabe's attorney. "They allow witnesses who have favorable testimony to testify."
At some point during Abed's captivity that first day, blood appeared inside his lip. The Navy source said, "All these al Qaeda guys are trained to injure themselves and claim they were tortured."
Two other SEALs on the mission, Petty Officer 1st Class Julio Huertas and Petty Officer 2nd Class Jonathan Keefe, are charged with providing false statements, as is Petty Officer McCabe.
In another win for the defense, a military judge ruled last week that the prosecution may not use Petty Officer Keefe's statement that he did not see Abed struck. The judge said investigators did not advise Petty Officer Keefe that he could remain silent.
U.S. Central Command, where Gen. Cleveland oversees special operations forces, filed official charges in October. The assault charge against Petty Officer McCabe stated that the SEAL did "unlawfully strike Ahmad Hashim Abed in the midsection with his fist."
The false statement charge states that Petty Officer McCabe told a Naval Criminal Investigative Service investigator, "I did not assault nor did I see anyone assault or abuse" Abed.
Petty Officer McCabe says that statement is true. At a rally Saturday in Scottsdale, Ariz., to raise legal funds, he announced that he had passed an independent lie-detector test on the question, "Did you strike Abed?"
A statement on Mr. Puckett's Web site says, "These terrorists are trained to claim abuse despite no physical evidence of such. More importantly, they know the powerful influence of our mainstream media and legal system and are using these facets as tools against us. This tactic with resulting media attention is effective in causing our heroes to question their training and decisions, placing their missions, lives and our security in jeopardy."
The military's decisions to charge the SEALs who took a suspected terrorist off the streets has stirred protests from some members of Congress and ordinary Americans.
A Facebook page, "Support the Navy SEALs who Captured Ahmed Hashim Abed," has attracted nearly 120,000 members. Another Facebook page, "Americans United Against the Prosecution of 3 Navy SEALs," has nearly 265,000 members.
When the SEALs brought the captured Abed back to Camp Schwedler in September, they had executed a perfect mission. Based on an intelligence report on Abed's whereabouts, they surprised him while he slept in his bed, marched him back to their helicopter and evacuated the area without firing a shot.
The U.S. command in Iraq has refused to provide details on Abed except to say that he is being held.
Gen. Cleveland wrote to members of Congress saying his decision to charge the SEALs was influenced by evidence that they tried to cover up a suspected assault.