Motion to Dismiss Trial of Navy SEAL Denied

NORFOLK, Va. — A military judge refused to dismiss charges against a Navy SEAL charged with assaulting an Iraqi terrorist, rejecting reports by the defense that improper pressure may have been put on Gen. Charles Cleveland who made the decision to prosecute.

Proceedings began Monday at Norfolk Naval Base for Petty Officer Matthew McCabe, the last of the three Navy SEALs facing courts martial for allegedly assaulting terrorist Ahmed Hashim Abed, mastermind of the murder and mutilation of four Blackwater security guards in Fallujah in 2004.

McCabe’s attorney’s Neal Puckett and Haytham Faraj filed a motion to dismiss the trial based on “unlawful command influence.”

Puckett and Faraj cited a segment on Fox News’ “O’Reilly Factor” in which Geraldo Rivera quoted sources “very close” to Gen. Charles Cleveland saying he was pressured to continue with the trials despite public outrage and two not guilty verdicts in the cases of Petty Officers Keefe and Huertas.

The prosecution countered that there were not enough objective facts in the Fox News report to dismiss the trial.

Presiding Judge Capt. Moira Modzelewski rejected the motion, saying that Gen. Cleveland could not be held responsible for the continuation of the trial since McCabe was given the option of non-judicial punishment but chose a court martial instead.
If McCabe had accepted non-judicial punishment it would have been perceived as an admission of guilt and his military career would have been severely tarnished.

Citing translation inconsistencies, defense attorneys brought a second motion seeking a new transcript of Abed’s deposition that was taken in Baghdad and would constitute his testimony in McCabe’s trial. (Abed will not be at present in Norfolk).
Judge Modezelweski ruled that the prosecution must provide a new translator to listen to Abed’s audio testimony. The prosecution and defense seemed concerned that it could take more than 24 hours to find a credible translator.
Should the prosecutor find the translator, jury selection will begin Tuesday followed by opening statements. The trial was initially expected to last through Wednesday but due to the unexpected defense motions, it is possible that the trial could extend until Friday.