The Accused (42 page)

Les Forges then promised a “bombshell” in terms of surveillance evidence regarding the malicious and murderous intent of Colonel Marlowe.

When she said that, Will turned to Marlowe, who wrinkled his brow but shook his head.

The prosecutor also promised “devastating” evidence from another Mexican police official, who had had actual contact with Carlos Fuego a few days before his death. Such evidence, she assured the court, would leave no doubt that Fuego had disagreed with his prior activities with the CIA and wanted to get out, but feared for his life—and actually believed that the American government might plan to exterminate him rather than allow him to leave its service.

Reporter Philippe Luc Cartier would be called as a witness, the prosecutor explained, with reference to his investigative work for a prominent French newspaper. Cartier had come into possession of information and documents showing the creation of BATCOM as an illegal assassination unit that broke with the traditional military hierarchy established under American law. His testimony would also show that the amorphous structure and lack of accountability of the BATCOM unit was an invitation for the kind of reckless and murderous event that had taken place at Chacmool.

Lastly, the prosecutor previewed the testimony of Dr. Michael Zagblundt—a retired colonel in the United States Army and a military expert. He would testify that the structure of BATCOM was a threat to freedom and to the civil liberties of citizens in other nations, and
further, that the Chacmool mission, in its execution, constituted a clear violation of Article 8(2)(b)(iv) of the ICC war-crimes code—namely, that Marlowe had committed the war crime of excessive incidental death to civilians.

Will Chambers walked deliberately to the podium after Les Forges had finished.

“Your Honors,” he began, “I reserve my opening statement until after the close of the prosecution's case. But I would urge this tribunal to remember what it knows full well—that this profoundly important, seminal case is ultimately going to be decided on credible facts and trustworthy evidence—not on empty promises or political arguments from the office of the prosecutor. Until I address this court at the close of the prosecution's case, may your ears hear only the evidence, and may your eyes see only the truth.”

When Will sat down at the counsel table, Jacki, who was seated in the row behind him, leaned over and whispered in his ear, “Is it just me, Will—or are we a long way from Monroeville?”

67

T
HE FIRST WITNESS CALLED BY THE
prosecution was Jorge Martinez, Deputy Secretary of the Foreign Ministry of Mexico. Martinez would lay the background and foundation for Les Forges' case.

He testified that, at the time of the Chacmool incident, there was no status of forces agreement between Mexico and the United States. He explained the background of such agreements. Their purpose was to establish a legal protocol of liability and jurisdiction concerning the activity of troops of one country within the borders of another.

“However, in the absence of a status of forces agreement,” the secretary explained, “then, under international law, Mexico certainly has the sovereignty and international legal authority to prosecute Colonel Marlowe—or any other United States agent or soldier—for alleged criminal conduct within Mexico.”

Les Forges asked whether there had been any negotiation between the two countries relative to the presence of American troops.

“There had been,” Martinez noted, “but those negotiations broke down. There had been some tension developing between Mexico and the United States over a long period—very regrettable—we find this a sad thing—but a reality nevertheless. Mexico was very interested in our integrity as a nation—our individual sovereignty—and we were concerned about American military control.”

“Can you expand on that, Secretary Martinez?” Les Forges casually put the question.

Oh, yes,” the witness replied. “As an example, back in the year 2003, a well-known polling organization in Mexico, Mundo Americas, did a poll of the Mexican people. Seventy-seven percent of our citizens saw the United States as a force that is trying to dominate the world. Only
twenty-three percent of our citizens saw the U.S. as a nation that really wants to play a constructive role in world affairs.

“We have, several times, gone to the International Court of Justice—the World Court here in The Hague—to complain about the death penalty in the United States being administered to Mexican citizens without giving deference to their rights as such.

“Further, we've had several instances where we have grown weary of Drug Enforcement Agency personnel of the United States conducting raids within our borders that we do not agree with.

“So you see, there is a very extensive background that led to our decision not to enter into a status of forces agreement. Also, Mexico rejected the United States' overtures—they wanted us to enter into a written agreement under which, if their troops came into Mexico, the U.S. would be immune from any prosecution under the ICC. We refused to sign that agreement also.”

“Was there any permission for the United States to bring any of its military personnel into the nation of Mexico—except in regard to the attempted kidnapping of Secretary of Commerce Kilmer?”

“No, no permission whatsoever. The only permission we gave the United Statees was
very limited
—we told them they could bring in a small, limited military or paramilitary operation to help secure Secretary of Commerce Kilmer's release.”

The prosecutor stepped away from the podium and situated herself directly in front of the three-judge panel.

“Did Mexico have information about the identity of the group that had attempted to kidnap Secretary of Commerce Kilmer?”

“Most certainly,” Martinez answered. “We had very reliable information that the group was an element of FARC, a rebel group that has operated in the Central and South American regions for many years.”

“Did you relay this information to the United States?”

“Yes, in our conversations with the United States State Department and their Department of Defense we explained this. But they rejected that information. America claims superior intelligence, and they kept insisting that the group had something to do with the al-Aqsa Jihad—AAJ—a Middle Eastern group.”

“Did the nation of Mexico, through any of its agencies, grant permission to the United States to expand its military mission from its original limited scope of rescuing Secretary Kilmer in the Cancún,
Yucatán, area to a wider mission of chasing and trying to kill persons suspected by the United States to be terrorists?”

“The nation of Mexico gave no such permission whatsoever.”

“And did the nation of Mexico grant any permission for the attack by American commandos at Chacmool, Mexico?”

“No, we did not authorize that attack.”

“Last question—did the United States agree to cooperate with Mexican police in the Cancún attack on the kidnappers?”

“That was the agreement—that the United States' units would cooperate fully with, and be subject to, the Mexican police. Regrettably, the U.S. did not honor its agreement. Our federal police officers were left very much in the dark during the entire rescue effort.”

Les Forges smiled, gestured toward Will Chambers, and sat down with her head slightly raised—as if she were a monarch ready to wave to the masses.

The American attorney strode to the podium, adjusted his earpiece, and glanced over at the interpreters behind the glass. Then he turned to the witness.

“Regarding the Mexican opinion that the group kidnapping our Secretary of Commerce was FARC, rather than AAJ—Mr. Martinez, do you know whether Mexico had access to any satellite intelligence on that issue?”

Martinez paused, looked down at his hands, and then answered.

“No, I do not believe so.”

“So then,” Will continued, “if the United States had credible, timely evidence from its satellite surveillance that verified the presence of AAJ terrorists among the group actually present at the kidnapping site of Secretary Kilmer, you would not be in a position to either admit or deny that—is that correct?”

Martinez nodded reluctantly.

“That's correct. I have no satellite information. I have no way to respond to that.”

“And as to the issue of the United States having permission to expand its mission to include the Chacmool attack—did Mexico ever
expressly forbid
the U.S. from expanding its mission to include tracking down the kidnappers all the way to Chacmool and attacking them there?”

“No, we did not.”

“Are you familiar with Manuel Abdal Vega—a chief administrator in the Ministry of Tourism?”

“Yes, I have had dealings with him within our federal government.”

“Is he a practicing Muslim?”

Les Forges rose quickly to her feet and objected on the grounds that such a line of questioning had no probative value whatsoever.

To Will, the objection should have been quickly overruled. Judge Korlov seemed overconcerned about the issue, but then overruled it and permitted him to proceed.

“Yes, I believe he is. Although I'm not positive.”

“Let me refresh your memory—isn't it correct that, about two months ago, you requested that Manuel Abdal Vega attend a meeting at your office, and he indicated by e-mail that he would be unable to attend because he was observing an Islamic holy day?”

Martinez shifted in the chair.

“Yes…I do remember something along those lines.”

“And Vega, an officer in the Mexican military before he was transferred to the Ministry of Tourism, had extensive personal contacts with rebel groups in the Yucatán Peninsula where he had been stationed—is that correct?”

The secretary shifted again.

“Some contacts. I do not know what you mean by extensive.”

Will knew that he could reap only limited benefits from this witness, so he concluded his cross-examination.

Les Forges' redirect examination was pointed and direct.

“Did the United States bother to share its alleged satellite surveillance information about the AAJ with any representatives of Mexico?”

“Not at all. We would have been most happy to have seen such information.”

“And Mr. Chambers asked whether Mexico expressly prohibited the United States from expanding its mission to include chasing down and trying to kill the suspected terrorists. Was there a reason why Mexico did not
expressly
prohibit that expansion of America's original limited mission?”

“Yes, there was.” Martinez turned in the witness stand to face the three judges. “Mexico made the mistake of believing that the United States—out of all the nations of the earth—would certainly understand the need for us to have national sovereignty. We assumed the
U.S. would respect our sovereignty and make a formal request before it would surround a house outside one of our villages and shoot up our citizens. Tragically, our trust was apparently betrayed.”

The prosecutor smiled, bowed politely, and resumed her seat at her counsel table. Will knew he could have made some hay out of Martinez's last statement—but chose not to. This was certainly not an array of judges who would be sympathetic to that kind of questioning, in any event.

His only hope—and that of Colonel Caleb Marlowe's—was that these judges would blow away the anti-American geopolitical smoke and rest their decision solely on the credible facts.

That, however, remained to be seen.

68

S
ALVADOR
G
ARCÍA, CHIEF OF THE
Mexican federal police, stood rigidly next to the witness stand, as if he had a pool cue down the back of his jacket. He was in full-dress uniform with gold-braided epaulets and a chest full of ribbons. He held his tiny patent-leather-brimmed cap over his heart, and his right hand was thrust straight up, as he took the Solemn Declaration to tell the truth. Will had noticed the conspicuous absence of any reference to God in these declarations, already administered numerous times during the proceedings.

The chief first testified that his office had received an anonymous tip that American commandos were about to strike, and possibly kill, innocent Mexican citizens at a house near Chacmool that night.

Anticipating her opponent's potential cross-examination on that point, Les Forges exhaustively examined the witness on the circumstances of the anonymous tip. He said he did not know where the call had originated from. It had not been called into their emergency line, which recorded all calls. It had been called in on the nonemergency line. It had been a man, and he had given only the sparsest details and then hung up. García had questioned the dispatcher who had taken the message, and she had been unable to provide any further information.

As a result, several squad cars of Mexican federal police had been dispatched to the Chacmool area. García further explained that because of the attempted kidnapping of Secretary Kilmer at Cancún, the Mexican police had taken one of their most sophisticated pieces of surveillance equipment—a long-range listening dish—to the Chacmool area. This was in case the dish might be needed to track any of the FARC kidnappers, who—it was surmised—might be heading in the direction of Chacmool after the aborted kidnapping.