Ruling could benefit local SEALs in Iraq assault case

NORFOLK

Prosecutors handling the courts-martial of two local Navy SEALs charged with not stopping a teammate's alleged assault on an Iraqi detainee faced another setback Friday.

Cmdr. Tierney Carlos agreed to exclude a statement made by one of the SEALs to the special agent investigating the allegations in September because the agent didn't advise him of his right to remain silent. As a result, one of two charges against Petty Officer 2nd Class Jonathan Keefe likely will be dropped.

The charges against the three SEALs have sparked protests and calls from some in Congress for the cases to be dismissed.

According to court testimony, Keefe told NCIS agent John Stamp the same thing he told his bosses: He did not see a fellow SEAL punch Ahmed Hashim Abed in Fallujah in early September, as the detainee and one sailor alleged. Keefe and Petty Officer 1st Class Julio Huertas allegedly were in the room at the time.

Defense attorneys don't normally attempt to suppress a client's statement of innocence.

But according to Keefe's lawyer, Greg McCormack, Keefe's insistence that he didn't witness anyone punch Abed was the basis for his being charged with making a false official statement. Get rid of the statement, and the charge will mostly likely disappear.

Keefe is also charged with dereliction of duty for allegedly not protecting the detainee.

Huertas could benefit from the ruling as well. Stamp said he did not advise Huertas of his rights before their interview - opening up the possibility that his attorney will make a similar challenge.

Huertas and Keefe have succeeded in many of their court challenges.

Carlos granted their requests to move the trials to Iraq, so they can face Abed in court, something the government opposed.

The judge also ordered that five witnesses expected to support their defense be granted immunity from prosecution. Four of the witnesses are SEAL team members; the fifth is a Navy corpsman.

All were involved in the mission to capture Abed, who allegedly orchestrated the murder and mutilation of four Blackwater contractors in Fallujah in 2004.

Army Maj. Gen. C.T. Cleveland initially denied their request for immunity, but Carlos ruled that Keefe and Huertas could not get a fair trial without it. In response, Cleveland granted the witnesses immunity.

The government's main witness in the case is Petty Officer 3rd Class Kevin Demartino, who was assigned to guard Abed after he was brought onto the U.S. base.

Defense lawyers have said Demartino gave a number of conflicting accounts of what happened and noted that he was alone with Abed.

"They are blindly accepting Demartino's accusations," McCormack said.

"As far as anybody having motivation to lie, he's the guy," he said.

Keefe and Huertas face trial in Baghdad in April.

The court-martial of Petty Officer 2nd Class Matthew McCabe, who is charged with assaulting Abed, is scheduled to begin in Norfolk in May.