The Accused (30 page)

“You see, this is the thing that baffles me,” Assistant Secretary McCarthy noted. “O'Brien has always played ball. He has always been a team player. On budget matters, new military programs, defense spending—whatever the issue has been—from the Pentagon's standpoint, the senator has always been there when we needed him. So
what's driving this? What's pushing this thing? Has anybody talked directly to Senator Purdy since his subcommittee hearing yesterday?”

“That's being handled as we speak,” the vice president responded. “All right. Let's focus. How much damage was done yesterday in Purdy's subcommittee hearing, taking into consideration the coverage it had and some of the early op-eds we think are coming down? Charlie, I'm going to start with you.”

The White House Chief of Staff, a short, gruff man, shifted slightly in his chair and laid both hands flat on the conference table.

“I really think this is about a five-point-five on the ten scale. And I believe that's about as bad as it's going to get, as long as we don't let it get away from us.”

The vice president looked at Chief White House Legal Counsel Birnbaum and nodded at him.

“Well, we did a rush on the transcript of yesterday's testimony late last night,” he said. “I looked at it myself. I had Bracken, the assistant legal counsel who testified, also look at it. I think there was a lot of bluster—but I don't think there were a lot of ballistics.”

The vice president then directed his attention to the National Security Advisor.

“Ellie, you read the bullet points, the summary of the testimony?”

“That's right,” Lorton said. “Harry is sending me a copy of the full testimony. I'll take a look at it. I mean, I trust your evaluation, Harry, from your standpoint. My main concern was how much it might have compromised our work on
the project
. I don't think it has. Of course, optimum is always no information, no inquiries—that all four corners of the project are sealed off. That's not always possible—but that's always the best-case scenario from a national security standpoint. Are we in jeopardy? No. Is it going to compromise the strategy? Probably not.”

The chair recognized Secretary McCarthy again.

“The only thing that troubles me is the fact that somehow the transcript of that Article 32 hearing, in its unedited and unredacted form, got into the hands of Senator Purdy's office. That shouldn't have happened. And I will confess that I am talking to my folks at Quantico about that. I'm not quite sure why there was even a reference to BATCOM at all in that hearing. If we had given a clear directive to all counsel, both trial counsel and the defense should have avoided any
reference to matters that preceded the Chacmool incident, as well as anything having to do with the configuration—or the identity, including the name—of the unit actually involved.”

“We did look at that Article 32 testimony,” Birnbaum noted, “and, Mr. Vice President, it was a bit of a quirk. Yes, there was a Defense Department directive that all that information the assistant secretary indicated would be confidential. It would be treated as classified and would not be referenced.

“Somehow, though, one of the special ops guys blurted it out on the stand—mentioned the name. That's really as far as it went. The problem lies in the fact that trial counsel, who should have known better, should have moved to redact that immediately. I think, probably for some strategic trial-lawyer reasons, he did not. Maybe the guy wanted to win a referral to a court-martial more than he wanted to follow a Defense Department directive—I don't know. But the point is, he didn't object. In fact, nobody raised an objection, and it got left in the transcript.

“But that's only part of it. Then when the transcript got shipped over to Capitol Hill at the request of Senator Purdy, someone should have flyspecked that thing carefully and removed the offending reference. So that's where we are.”

“If I may,” Chief of Staff Keaton said, receiving an approving nod from the chair, “what we are hearing, in any event, is that this is as much bang as there's going to be over this. This Senator Purdy, we are told, is about to implode.”

“Implode?” Assistant Secretary McCarthy asked. “Let's hope it's not the other way around—the shrapnel from the other scenario would guillotine a whole lot of folks—and that would do a tremendous amount of damage. And now I'm talking about national-security damage. I'm talking about the physical safety of our most basic national and political institutions.”

“All right, John—Charlie and I can talk a little bit more, between the two of us, on the political angle of this,” the vice president said, “but I think the next thing that has to be addressed is the status of the International Criminal Court charges that were filed. Harry, why don't you take it?”

“Each of you has received a summary memo from my office on the nature of the charges, the background, and some of the legal issues we
are addressing,” Birnbaum explained. “And of course, ultimately, the decision—and we're talking with the Solicitor General's office about this—on the extent to which the United States government is going to formally participate in the proceedings. And in what way we would participate.”

“Just one question that I've got,” McCarthy spoke up again. “You do describe a little, in your memo, the status of Colonel Marlowe's legal representation. I'm concerned about that. Could you elaborate?”

“Certainly,” Birnbaum said. “His chief legal counsel is the same attorney who represented him in the military tribunal—Will Chambers, a lawyer from Monroeville, Virginia. I've included some information on Mr. Chambers attached to my memo. He's also being assisted by Dr. Len Redgrove, a University of Virginia law professor. A little eccentric—quirky even—but a brilliant man. Certainly lines up with our view of things in terms of the supremacy conflict between the ICC and American law. I think, when it comes to the actual trial, this Will Chambers is the guy who's going to be doing the heavy lifting.”

“So we've got a lawyer from a three-person law firm in—where was it—Monroeville, Virginia?” Keaton growled. “
This
is the guy who's going to be protecting the interests and the integrity of the United States government in the face of the first truly direct jurisdictional clash with the ICC? Excuse me while I up the dosage on my ulcer medication.” And with that the chief of staff rolled his eyes.

“What about that, Harry?” the vice president asked. “Are we going to formally appear of counsel for Marlowe in this thing? Are we going to file an amicus brief? Are we going to intervene in some way?”

“We're looking into that. We're researching that,” Birnbaum noted. “There are a number of complexities here. Unique. These are issues of first impression. We've been anticipating this kind of a challenge from the ICC for some time, but not exactly in this context. We were expecting a challenge in regard to some of our peacekeeping troops. Or a challenge to major combat decisions involving big troop movement—large combat attack—large loss of civilian life—that sort of thing. We really didn't think the prosecutor's office in the ICC would try to pick a small, covert operation involving four civilians—one of whom was a CIA agent. That did surprise us.”

“Well, what about the involvement of the U.S. government in Marlowe's defense?” the vice president asked again. “What's the answer on that?”

“Well…we haven't resolved this yet,” Birnbaum answered, hedging. “I'm getting the opinion from the Solicitor General's office. We're talking to the Attorney General. The State Department is weighing in. In fact, I've already been on the phone to the Office of Legal Counsel from State. They've had some contact with this Will Chambers on another case he has going, some civil-rights case against Sudan.

“But it's not an easy answer about our involvement. The reason is severalfold. First of all, Colonel Marlowe is no longer an active-duty officer with the United States Marine Corps. He resigned his commission immediately after the decision came down that the convening authority would not be referring his case to a court-martial. So the military charges against him were dismissed, and his resignation was pretty pro forma—you know that's the way it's done, so that it's completely res judicata, from the standpoint of American law, on the potential for further charges being brought. Now if he were an active-duty officer out there in the field, there's no question the United States government would see this as a case where the government was being directly attacked by the ICC. So—that's point number one.

“Point number two is, we have a unique legal relationship with Mexico. For reasons I can explain if you want—but are very, long, detailed, and historical—we do
not
have a status of forces agreement in force with Mexico. That would have limited, for all practical purposes, Mexico's ability to bring any charges, including referral to the ICC.

“And the third issue is really foreign relations—a little bit out of my bailiwick. But there are some unique factors in our relationship with Mexico—and the situation occurring down there.”

The vice president nodded. “Thank you, Harry. That last point is correct. The president has asked me to be directly involved with the unstable terrain in our relationship, diplomatically, with Mexico. I'm working very closely with our person down there—Ambassador Hurtado, a good man—but I agree with Harry. It's a very troubling situation geopolitically. There's a lot at stake, and the question is whether or not we want to send a message to Mexico that the United States government is formally aligned against them in this ICC case. The other option is to intervene in the case, but not as a direct party—so
we don't offend Mexico, maintain some neutrality, but ensure a just result for American interests.”

“So, where do we stand on the legal defense issue for Colonel Marlowe? That's my main concern,” McCarthy reiterated.

“For what it's worth,” Keaton added, “you've sure got my concerns on that too. Myself, I would try to get to Colonel Marlowe and put together a dream team for him, under the radar.”

“Monroeville,” the vice president mused. “What do you think about Monroeville?”

The attendees at the meeting fell silent and looked curiously at the vice president, who continued.

“Harry—what's your feeling about this Will Chambers as defense counsel?”

“Well, we've looked at his background. He's a wild card, there's no question about that. Too much a maverick for a lot of people's taste. But he did an exemplary job in the Article 32 hearing. My assistant legal counsel, Larry Bracken, testified with him yesterday.”

“So—what's your feeling?” the vice president pressed.

“I think of all the concerns we've got in this case, that's not one that's going to trouble me.”

And then Birnbaum stated his own question.

“Just out of curiosity—why did you ask about Monroeville?”

“Oh, nothing, really,” the vice president replied with a smile. “Just remembering my history. I think a bunch of the Founding Fathers came from Monroeville—and practiced law down there.”

And after a pause, he added, “I think a few of them were mavericks—but they still rallied to the cause of the Union pretty well.”

After another moment of reflection, the vice president went on. “All right. Let's move on to the next agenda item.”

48

J
ACKI
J
OHNSON WALKED INTO
W
ILL CHAMBERS
'
OFFICE
displaying the front page of the morning paper.

Just below the fold, on the right side, was a picture of a glum-faced Will seated at the witness table—and across from that, on the left, was a photo of Senator Jason Bell Purdy, in an orchestrated moment of self-righteousness, wagging an accusing finger in the lawyer's direction.

The headline read,

U.S. ASSASSINATION SQUAD EXPOSED

Jacki smiled and pointed a manicured finger at Will's picture.

“You know, Will,” she said, “what my mama would call that kind of a look? The look on your face in that photo?”

Will struggled to return a smile. “I suppose I'm going to hear this whether I like it or not,” he said ruefully.

“My mama would say that's the look of a goose stewing in his own juice!”

Will shook his head. “The power of the press. At least the camera caught me in one of my brighter moments.”

“So, media spin aside,” Jacki went on, “and I hate to ask this, but I will anyway—do you think your testimony damaged your defense of Colonel Marlowe?”

“I'm not sure. I know that the people in The Hague at the ICC read the newspapers. Particularly the esteemed dailies out of Washington, DC.”

“Well, and don't forget the New York papers,” she said, brandishing the front page of the
New York Daily Tribune:

PANEL PROBES USMC HIT MEN

blared the headline. The subheading read, “Senator Purdy Questions Assassination Policy of Soldier–Spies.”

“The Marine Corps is going to be thrilled with that one,” Will commented gloomily.