The Accused (22 page)

“Do you have any idea how difficult I was to live with when I married your mother?”

Fiona laughed and then shook her head. “Da, I'm sure you weren't that bad.” Then she looked at her father with an expression that yearned for answers—practical solutions. “So what do I do, Da? How do we fix this? I feel like I'm out in the ocean, swimming without a life vest…and my arms are getting so tired.”

“First of all, my darling Fiona, there are some things you are not meant to fix. There are some things God will heal…in his own time. You simply need to be a faithful, loving friend to your good husband. There are some valleys we have to walk alone. You always want to fix things yourself, and the quicker the better! Sometimes, like I said, there are things you simply aren't meant to fix yourself. And sometimes…sometimes the lessons of mercy are the hardest things to learn.”

“What do you mean?”

“Just think about Peter denying the Lord Jesus three times and then having to live with that memory. Think about the apostle Paul, who persecuted the believers and participated in the death of Jesus' disciples. Just because he met the Lord on the road to Damascus and God turned his life around—well, that doesn't mean he didn't struggle with those demons—those memories of how he had treated the followers of Jesus so brutally.

“Then there's David—just think about that, little girl. ‘A man after God's own heart.' That's what the Bible calls him. And yet he arranged for the death of his friend so that he could take his friend's wife, Bathsheba, into his palace just to satisfy his own lust. The memory of that, and the death of his infant son as God's judgment—all that must have broken David's heart. That's why I love the psalms so much. Because that is where I read about God's mercy from the pen of a man who had to learn to forgive himself just as God had forgiven him.”

“Then you think that's what's going on with Will?”

“I'm not sure,” Angus replied softly. “But I do know this—just because God saved his soul, that doesn't mean that God won't continue doing surgery on his life. There's nothing more frightening, more challenging, or more necessary than to visit that place where our innermost fears, and pains, and wrongs are laid bare on the operating table of the Lord.”

“It's just that this certainly doesn't seem the way I thought marriage was going to be,” Fiona said. “ I knew there would be struggles. I wasn't naïve. And I know Will loves me. But it seems like his mind is only half with me—even when we're together. We seem to be stuck in this dry, lonely valley. I sure didn't think that marriage would be so much desert…and so little oasis.”

Angus smiled. “No, I would expect not,” he said. “It usually always ends up both just a little bit worse—and a whole lot better—than we ever expected. We think it's going to be all walks in the heather in the sunshine. Sometimes it is. But sometimes it's also a lot like slogging through the peat bogs in a rainstorm!”

Fiona laughed a little and reached over, giving her father a warm hug.

She had wanted reassurance—and had received some. But she had also known she would not be given any quick, formulaic answers. That was not Angus's style. He always pointed her in the right direction—and then had the unnerving habit of stepping back so she could work it out herself with God.

Fiona was glad that she had visited him. But she had an underlying fear that there were dark passages still ahead for her husband—and perhaps even herself—that she could not predict, and that they could not avoid. It was those events that lay ahead—those things that were totally beyond their control, like cataclysms of nature—that bothered her most. She knew, as she motored back to their log house nestled in the shadow of the Blue Ridge Mountains, that her choices about the future were brutally simple. She could either proceed by faith…or be conquered by fear. As much as she wished it was otherwise—that there could be more options than that—she knew it was not so.

35

P
ROSECUTOR
F
RANCINE
L
ES
F
ORGES
had assembled two law clerks and her deputy prosecutor, Atavar Strinsky, in one of the conference rooms of the International Criminal Court building in The Hague, Netherlands.

On top of the long, blond-wood conference table, each person had a thick file.

Les Forges was talking quickly—in the staccato that typified her speech when she felt that a case was beginning to roll in her direction.

“So there's no question,” she said, addressing Strinsky, “that Mexico has Caleb Marlowe, and that they have him securely detained pending our decision?”

Strinsky nodded soberly. “He was arrested by the federal security police. They have him in lockup in Mexico City. They are ready to fly him out under secure guard, but they're waiting for the word from you.”

“Well, that's not going to be a problem,” Les Forges answered. “I can get an extradition order. Immediately if necessary. We can have him on a plane headed here within forty-eight hours. But I had asked you to double-check the formal referral from Mexico for prosecution. Are you satisfied that we have a formal request for prosecution from the state party of Mexico—for the prosecution of Colonel Caleb Marlowe of the United States Marine Corps, special unit designation unknown, for war crimes or crimes against humanity or both?”

“I've looked over the referral from the Mexican president's office. Everything's in order. I don't see any problems on that count.”

But then Strinsky wrinkled his brow, tapped his pen on the file in front of him, and spoke up again. “However, we do still have the two issues that we discussed previously—first, whether the substantive
criminal provisions of the ICC truly fit the alleged crime he would be charged with. And second—the jurisdictional issue still has to be resolved.”

Les Forges rose to her feet, thrusting her hands into the pockets of her pinstriped pantsuit.

“Well, let's take the easy question first. I gave all of you a memo on what I think the clear substantive crime is under the ICC article that applies here. It's crystal clear. There is, to me, no ambiguity. A beautiful fit, don't you think? Look at Article 8, Section 2 (b)(iv)—‘War Crime of Excessive Incidental Death to Civilians.' Just look. Ladies and gentlemen, there it is. A beautiful and elegant correlation between Colonel Marlowe's conduct as the superior officer, and the ICC Criminal Code.”

The female law clerk chimed in. “Yes, certainly on the first element, no question—‘the accused launched an attack' as part of a military operation. Here we certainly have an attack on the house in Chacmool, Mexico, as part of a general military operation by the United States. And if I may say so, Ms. Les Forges, I believe that we have the second element of the crime also proven. I've pointed that out in my memo to you, do you recall?”

“Yes, yes. Wonderful work,” the prosecutor said effusively. “I had already reached the same conclusion, but your memo corroborated that. The second element is that the attack must cause death to civilians to such an extent as to be clearly excessive in relationship to ‘the concrete and direct overall military advantage anticipated.' Now, this is where I think we have them…”

“Yes, because it was a covert operation, pursuing just a handful of terrorists…” the clerk added.

“Exactly,” the male law clerk said, joining in. “They expected only four terrorists or so, at best.”

“But what is the result?” Les Forges asked, her arms outstretched as she stood, holding court at the conference table. “The result is four dead civilians—an entire family—mother, father, and two little children. And here is where we can put that issue on trial—an issue that has international ramifications. Don't you see? Don't you see the implications of this?”

“Well,” Strinsky noted, “I do see some rather complicated implications, Francine. For instance, if you apply this standard to Colonel
Marlowe's mission, even though it obviously went wrong—tragically wrong—but if you say that the death of four civilians as a result of an attempt to kill four terrorists is excessive and disproportionate under Article 8 of the ICC Criminal Code, then aren't you really placing under suspicion every similar attack in every war-torn nation? What about the Israeli Defense Force when they go into the Palestinian Authority chasing would-be terrorists?”

Les Forges smiled, placing her hands on the conference table and leaning toward Strinsky.

“It is time, Atavar, that universal norms of decency, and the international rule of law, must be brought to bear in these violent, bloodthirsty skirmishes around the world. People must be brought to account. Even great—even large, powerful bully nations like America. Even small bully nations like Israel.”

The room grew quiet, and the two law clerks shifted uncomfortably in their chairs.

“But enough of my speech-making,” Les Forges said with a laugh and brushed the hair from her eyes. “What about the third element—the crime of excessive civilian death—any thoughts?”

The female law clerk spoke up again. “This is clearly the most difficult element for us to prove.”

The other law clerk nodded in agreement as the female law clerk continued. “However, the third element is basically one of
scienter
—requiring proof that the accused would have had knowledge that civilian death was inevitable, and that it would be excessive compared to the anticipated benefits of the mission. Here, I think, we can adopt some other useful legal standards to make our point.”

“My thinking exactly,” the prosecutor responded. “This is an excellent test case. Can't we argue to the trial tribunal that this is really a recklessness standard? We don't have to prove that Marlowe actually
knew
how many civilians he was going to end up killing—or that those civilians would outnumber the terrorists likely to be killed. Rather, can we not simply show that he had a
reckless
disregard for how many civilians might die in the melee?”

The two law clerks nodded, but Strinsky was unconvinced. “Of course,” he pointed out, “no ICC case has adopted that recklessness standard.”

“But we have the taped communications between Marlowe and his unit—‘collateral damage'—remember?” She smiled and then sat back down at the conference table.

“So then, that brings us to the jurisdictional issue.”

“And of course, that's an issue with a great deal of controversy around it,” Strinsky began. “As we all know, the Rome Statute only permits the ICC to prosecute Marlowe…”

As he spoke Strinsky fished into his thick file and pulled a section of Article I of the Rome Statute in front of him.

“The Rome Statute would only permit the ICC to prosecute him if we can show that the United States, after investigating Marlowe, decided not to prosecute him—”

“And we can clearly show that,” the female law clerk added. “The military court-martial was never convened. The convening authority at Quantico, after reviewing the preliminary hearing testimony, unilaterally dismissed the prosecution.”

“But we have to show something else,” Strinsky continued. “We have to show that the decision by the United States military not to prosecute resulted from the ‘unwillingness or inability to do what was required.' So in other words, we have to show that the United States Marine Corps, in declining to prosecute Colonel Marlowe, was really not making an honest, genuine effort to consider the evidence regarding his actions.”

Francine Les Forges did not respond immediately. But she broke into a broad smile and folded her hands calmly in front of her on the conference table. Then she cocked her head and, looking at Atavar Strinsky, finally spoke.

“And what do you think the response will be from the ICC judges on that issue? They will believe—as I do—that an American military court that exonerates its own decorated military hero without even referring the matter to a general court-martial—that such actions do not represent a serious consideration of prosecution.”

Les Forges paused and then added one final thought.

“Foxes may be allowed to guard the chicken coop in the United States—but not here at the ICC.”

36

“S
ENATOR
O'B
RIEN, JUST SO THAT
you understand, no one's rushing to issue charges against you. In fact, we're looking right now at the possibility that your computer was sabotaged.”

Before the Assistant United States Attorney could continue, however, Senator O'Brien's lawyer jumped in. “And of course we believe that your investigation is going to show exactly that. After all, a high-profile person of influence and power such as my client, Senator O'Brien, is a perfect target for cyber-slander—someone feeding this filth into his computer.”

O'Brien, who was sitting next to his attorney and had been uncharacteristically quiet, nodded vehemently.

“Well,” the U.S. attorney continued, “our computer experts took a look at something they call the meta-data of this computer and have concluded there is a chance that the child pornography image on your computer screen was a result of surreptitious entry through a pop-up. How that entry was made into your computer, we're not quite sure. But we have some theories.”