The Accused (18 page)

“No, sir, Master Sergeant Rockwell didn't say anything about seeing civilians.”

“So would it be accurate to say that you have no idea why he made that comment about civilians?”

“Yes, sir, that's correct.”

“Is it correct that the only person your team had encountered at the house up to that point, was the terrorist who had stepped out of the front door and then fired in the direction of Corporal Thompson—is that correct?”

“Yes, sir—that is one-hundred-percent correct.”

Hanover rested his cross-examination, but Stickton marched back to the podium.

“Sergeant Baker, were you able to determine whether there were civilians inside that house?”

“Not exactly…not with my own eyes.”

“And that is because,” Stickton continued, “Colonel Marlowe was the first to enter the building, and he immediately turned to you and Master Sergeant Rockwell and ordered you not to enter the house, is that correct?”

“Sir, he did ask us not to enter and then told us to leave the site.”

“In fact, at that time there was the sound of police sirens approaching, and Colonel Marlowe ordered your entire unit to flee the scene and double-time back to the pickup zone—is that correct?”

Baker lowered his head a little as he thought. His eyes then looked out at some unfixed point beyond the courtroom. His face was drawn, and he blinked slowly and then answered.

“Colonel Marlowe ordered us to immediately evacuate the scene and go to the assembly area where we were met by the helo—that's correct, sir.”

As Baker descended the witness stand and walked toward Colonel Marlowe, their eyes locked, and a small nod was given from warrior to warrior as the sergeant walked by the defense table and through the courtroom.

27

M
ASTER
S
ERGEANT
R
OCKWELL SMILED
before he answered the question posed by Colonel Stickton.

“Yes, sir, that's correct—I've had the privilege of serving under Colonel Marlowe's command in a number of missions.”

“Would you inform the tribunal of the last four missions?”

“Does the Colonel mean…before Operation Snake Hunt in Mexico?”

Stickton nodded. “Yes,” he added, “the four missions that preceded the incident at Chacmool, Mexico.”

“Well, sir,” Rockwell began in his South Carolina drawl, “it was the Afghan war—Operation Enduring Freedom—then Operation Iraqi Freedom, and then missions within North Korea and Syria later on. The last two missions are classified.”

“And prior to the incident in Mexico, on the four missions you described—what was your command structure?”

“Two of the four before Mexico were all part of MEU(SOC)missions—Marine Expeditionary Unit, Special Operations Capable—the tip of the spear, sir. The last two, as I said, are classified.”

“And you understood, under the rules of engagement, that your unit was to be on the alert for the possible presence of civilians, is that correct?”

“Yes, sir, in that kind of mission that is always a matter of concern—that's correct.”

“Now, let's consider the Chacmool incident. From your position on the side of the target house did you, in fact, have visual contact with any civilians before Colonel Marlowe's order to commence firing?”

“No, sir—no civilians at all. Zero civilians by visual contact.”

“Now, Sergeant Rockwell,” the trial counsel continued, straightening up behind the podium, “did you have
nonvisual
intelligence that there might be civilians within the main room of that small house?”

“Well, sir, the Colonel is going to have to define
civilians…
”

Stickton bristled, then bulleted his next question.

“By
civilians,
I mean the accepted and customary definition of the word—a definition you ought to be well acquainted with, Sergeant Rockwell. I mean nonuniformed individuals who are not part of an organized military unit, and whose status is as noncombatants in an armed conflict. Did you have any intelligence of any persons meeting that definition present inside that house that night?”

“Sir, I'm not sure how to answer that question—”

Colonel Stickton left the podium, stepped directly in front of Sergeant Rockwell, and did not let him finish his answer.

“If there's any element of my question that you do not understand, Master Sergeant, please indicate
exactly
what you don't understand and I will rephrase it. But if you do understand it, you are to answer this question now—within that building, according to intelligence that you had been provided prior to commencing fire, were there any civilians as I've defined them?”

“Sir, the problem with the question as it is being put to me is the bit about noncombatants. This is a new kind of war. Our enemy is terrorism, which operates through small armies of terrorists whose roles shift between civilian noncombatants, civilian combatants, and members of organized military units.”

“Did you have any intelligence that suggested, even indirectly, that persons not officially associated with al-Aqsa Jihad—the terrorists you were pursuing—were present in that house before the shooting began?”

“Sir, not personally, no.”

Colonel Stickton paused a minute and considered Rockwell's answer. It was clear to the trial counsel that Rockwell, in his answers, was attempting to flank him.

“Did you have any indication that Colonel Marlowe had intelligence that persons not formally associated with al-Aqsa Jihad—the terrorists you were pursuing—might also be in that house?”

“Sir, Colonel Marlowe never indicated to me that he had confirming information, from any intelligence source, that there might be persons in that house who had no connection with al-Aqsa Jihad.”

“But Colonel Marlowe
did
tell you—that one or more Mexican nationals who were unarmed might be present. Is that correct?”

The sergeant raised his eyebrows slightly and leaned toward Stickton.

“Sir, Colonel Marlowe never told me he had such intelligence—if that's what the Colonel is asking, sir…”

“But the fact is, Master Sergeant, that after the lookout fired in the direction of Corporal Thompson, you immediately communicated to Colonel Marlowe on your headset, suggesting that Thompson get a shot off to take the sniper down and then one of you do a close-up recon of the house—is that correct?”

“Sir, I said something close to that—I don't recall the exact words.”

“But Colonel Marlowe rejected that, correct?”

“The colonel…had a better appreciation for the situation and ordered us to take out the lookout and lay down suppressing fire on the house.” With that, Rockwell gave a half-smile in the direction of Colonel Marlowe.

The trial counsel picked up on this immediately. “Master Sergeant, do you find something amusing about the tragedy at Chacmool—about the four innocent civilians, including a CIA operative, who were killed?”

Sergeant Rockwell turned his gaze slowly back toward Stickton. His gaze penetrated the other man's, and he answered with restrained emotion.

“
Sir—
Carlos Fuego was a very close friend of Colonel Marlowe—as was Carlos's wife, Linda. Colonel Marlowe would not have harmed a hair on either of their heads, let alone their two little children, for anything in this world.”

“Is that so? Then why did he tell you that he would accept the ‘collateral damage' to civilians in that house when he ordered the four members of your unit to commence firing with deadly force?”

Rockwell had been sitting straight in the witness chair with his hands folded in his lap, but now he leaned toward Stickton and tilted his head slightly forward—as if he were about to dress down a new
recruit who had just made a training blunder with a dummy hand grenade.

“The Colonel wondered why I was smiling a minute ago. The fact is, I have spent enough time in combat with Colonel Marlowe to know when this man has information I don't—when he's making command decisions with facts and considerations that my big South Carolina skull does not contain. It is my firm belief—for what it's worth—that Colonel Marlowe had information that there were going to be one or more collaborators with al-Aqsa Jihad inside that house. I can't prove anything—can't tell you why—but I do know that he did not anticipate…nobody could…that we were about to be led into a trap that night, something you haven't bothered to ask me about—”

“I ask that Master Sergeant Rockwell be admonished,” Stickton barked.

Colonel Rogers quickly turned to the sergeant.

“Master Sergeant Rockwell, may I remind you that your attitude and your answers border on insubordination for this hearing and for trial counsel, a senior officer. You will refrain from answering questions that aren't being asked—and you will limit your answers to those questions that are being asked, do you understand me?”

Rockwell nodded, calm again, and quickly added, “Sir—yes, sir.”

But Stickton decided not to pursue any further questioning of Rockwell. As it stood—Rockwell's outburst had, in his opinion, served the prosecution well. It showed that the only basis that Colonel Marlowe might have had for his command decision to fire on the house was based on pure speculation and guesswork on the sergeant's part.

But as Stickton was halfway back to the prosecution counsel table, he changed his mind and quickly returned to the podium for one last question.

“Just to make sure the record is absolutely clear on this—Colonel Marlowe did tell you that he was willing to assume all ‘collateral damage' as a result of his order to commence firing, is that correct?”

“Yes, sir,” Sergeant Rockwell answered.

As Stickton stepped back to counsel table, Will rose to his feet. He knew that if he was unable to mitigate these two devastating words—
collateral damage
—his client could be facing the death sentence.

28

A
S
W
ILL
C
HAMBERS APPROACHED THE
podium, he paused for a full half-minute before starting a terse, focused examination of Master Sergeant Rockwell. He felt as if a border battle had just broken out…and he was but a messenger running along the battle line, avoiding bullets flying from each direction. The point was to get the message delivered without getting caught in the cross fire.

“Sergeant Rockwell,” Will began slowly, “your prior tours of duty under Colonel Marlowe's command gave you a reason to trust his judgment, is that correct?”

“Sir, absolutely. I found his military judgment to have always been sound and in the best tradition of the United States Marine Corps.”

“Did Colonel Marlowe indicate to you, at any time before reaching the drop zone, that he had received intelligence from Carlos Fuego, in his capacity as a CIA operative, relative to this mission?”

“Yes, sir, he did. In his pre-mission briefing, the colonel told our unit that the primary source of information that had verified the location of the safe house and its connection with the terrorists, was CIA operative Carlos Fuego. Mr. Fuego had been working within Mexico for a substantial period of time, developing contacts and information regarding an ongoing collaboration between Mexican nationals and terrorists of Middle Eastern origin, particularly al-Aqsa Jihad.”

“And to your knowledge, was there a second verification that Colonel Marlowe received pin-pointing this particular house just outside of the village of Chacmool, as the haven for al-Aqsa Jihad?”

“Sir, absolutely. Colonel Marlowe received an encrypted message on his laptop that United States spy satellites had verified an outgoing call from the cell phone of the ringleader of al-Aqsa Jihad, and that the call had originated from that same house.”

“Now, fast-forwarding to the house—the scene of the shooting—did Colonel Marlowe explain to you what he meant by ‘collateral damage'?”

“No, sir.”

“But did you have some reason to think that the colonel may have intended that term to represent a unique situation?”

“I…yes, I think that's right, sir,” Rockwell responded.

“All right, let's go back to the briefing on the helicopter ride to the drop zone. Did Colonel Marlowe at any time give the impression that he was privy to information that could not be shared with the mission team?”

“Yes, sir. He certainly did.”

Stickton's co-counsel was frantically trying to whisper something to him, but the colonel was waving him off, trying to rivet his attention on this new information that was now surfacing—evidence that had not been discovered during the NCIS investigation.

Will knew that he was approaching the precipice, the edge of inestimable depth and danger. He could go very little further, perhaps only a few more inches, in his questioning.

Based on the information that Tiny Heftland had rooted out during their visit to Mexico, and partly based on his gut intuition, Will followed up with his final line of questioning.