The Accused (44 page)

“Len, I'm not sure. I'm working on it.”

As Will and his team packed up their briefcases and prepared to head out of the courtroom, they knew they would be met by an international army of reporters and cameras. But because the tribunal had placed a gag order on them, at least that task would be easy—“We are prohibited from commenting by order of the court.”

Approaching the exit from the courtroom and the armed ICC bailiffs, who swung the doors open, Will now had only one daunting task.

To put on a confident smile and hide his profound anxiety over the case he was defending.

69

U
NLIKE
C
HIEF
G
ARCÍA, THE NEXT
representative from the Mexican federal police—José Ortega, a lieutenant—was absent much of the spit and polish of his superior officer—or more accurately, he showed more spit than polish.

His tie was skewed slightly to the left, and his paunch was straining the buttons of his jacket. His entire uniform seemed slightly rumpled.

Les Forges' purpose in calling Ortega quickly became apparent. She paced him quickly through the preliminaries and got right to the point.

The witness testified that he was familiar with Carlos Fuego and had known his family for many years. And Fuego had confided in him that he had been, for many years, a CIA operative. But more recently he had begun to regret many of his “immoral” and violent activities on behalf of the American government. Even further, the lieutenant described how, just two days before the shooting at Chacmool, Fuego had confessed to him, in a private meeting, that he wanted to leave the CIA—but he was fearful that his agency was aware of this and was targeting him for assassination.

“And two days later,” the prosecutor asked, “is it correct that Carlos Fuego was shot to death by American commandos, along with his family, while meeting with, not members of the FARC, but members of the AAJ?”

“Yes. Oh, yes—that is correct,” Ortega answered vehemently.

Will objected on multiple grounds—that the testimony was clear hearsay, and that because Fuego was dead, it would fall under the dead man's rule recognized under American and English common law, as well as other national jurisdictions.

Judge Korlov, however, wasted no time in brushing aside those objections and allowing Les Forges to proceed with her questioning on Fuego's alleged statements to Lieutenant Ortega.

“And do you know why Carlos Fuego was meeting with members of the AAJ that night?”

“Yes, I do,” the lieutenant answered, bobbing his head up and down. “He told me, in the same meeting we had, that he wanted to arrange a conversation with an Abu Adis, a member of the AAJ. He knew that some members of the AAJ were in Mexico. But they were there for nonviolent reasons—trying to raise funds for the humanitarian projects they were doing back in the Middle East. Fuego told me that he was going to urge them to leave because he knew the CIA was tracking down all Muslim extremists in Mexico—and would be shooting them and killing them if they didn't flee. He suggested that they relocate to Guatemala for their own safety.”

“And so Fuego indicated he was setting up a voluntary meeting with Abu Adis and a small group of AAJ members. Do you know where the meeting was going to be held?”

“Oh, of course,” Ortega answered, “it was in the little house outside Chacmool where the shooting took place.”

Les Forges rested, and smiled at Will as their paths crossed.

Will took a moment at the podium to reflect before he began his examination.

“Are you able to give me the details, today, of all of the allegedly ‘immoral' activities you say Carlos Fuego regretted? All of the supposedly immoral things he did for the CIA? Did he tell you the details?”

“No. I do not think so. I can't remember those.”

“Now, Lieutenant Ortega, where was this meeting that you say took place between you and Carlos Fuego?”

“In a café.”

“What was the name of the café?”

“Can't recall.”

“Was it a café where other people were dining?”

“Yes. I believe there were people dining.”

“Was it a nice day that day?”

Ortega laughed a little and then answered.

“Yes. Sure. It was a nice day.”

“And so you were outside—in an outside café?”

“Oh, perhaps. I suppose so.”

“And what was the city?”

Ortega took a few seconds to think and then shook his head.

“Can't remember, really. But I do remember the conversation. Just can't remember the city.”

“Would it refresh your recollection if I were to tell you that it may have been in Nanchital?”

Ortega looked over at Les Forges, glanced over to the judges, and then looked back at Will.

“Yes. Now that you mention it, that's probably where it was.”

“Lieutenant Ortega, I do not believe that you met with Carlos Fuego. But I do know that you are familiar with Nanchital. Because that's a city run by the labor union for oil workers. It is a city known for corruption—and it is a city that you frequent often. And I say that because you are currently under investigation, are you not, on charges of bribery and assisting kidnapping in your association with the People's Oil Union of Mexico down in Nanchital?”

Les Forges pranced up to the podium and shot out several objections.

Will countered by rephrasing the question, but still laying the accusation of an investigation of Lieutenant Ortega clearly at his feet.

At that point Judge Korlov stopped the proceedings, turned off his microphone, and conferred with the other two judges. Their discussion was prolonged—longer than Will would have expected. Ortega's credibility was clearly a key element now. Why in the world would the judges not permit him to cross-examine Ortega in regard to his dishonesty or willingness to lie so as to gain some benefit?

After a full ten minutes, Korlov flicked the switch at his microphone and leaned forward.

“The tribunal has voted, two to one…” Then he paused, looked down at the desk, and rubbed his hands together. Looking up again, he continued.

“…Two to one, to permit this line of questioning. Continue, Mr. Chambers.”

Ortega glumly responded that he was under investigation—but he suspected the charges had been trumped up by criminals—by the criminal element he was investigating. He indicated he believed he would be fully cleared of all of those charges.

“In fact, you believe that those charges against you are going to be dismissed by Chief García, is that correct?”

Ortega took the bait and nodded vigorously.

“Yes, sir. Yes, that is correct. I am told by Chief García that the charges against me will all be dismissed.”

“And there's a reason for that, isn't there?” Will asked, raising his voice.

“What do you mean?”

“I mean that the reason that the charges will be dismissed against you is because you have fabricated your testimony about meeting with Carlos Fuego—and fabricated statements, allegedly made by Carlos Fuego, that were never made. And you did this because you knew that, if you provided the testimony the Mexican government wanted, you would be cleared of all of the charges relating to your own misconduct—isn't that true, Lieutenant?”

Ortega almost stood up from the witness chair as he waved his hands back and forth wildly.

“No, no, no—do not say this.”

“Lieutenant, do you know what the penalty is for lying after making a solemn declaration before this tribunal? Do you know that you could be sent to prison by this tribunal if you are found to have deliberately lied?”

Ortega squirmed and resumed his seat, but rose again slightly, as if realizing that there were several tacks on his chair. Then he sat down fully.

“I have said what I have said. And I do not believe I should speak anymore…if there is trouble for me here—then I want to talk to the Chief—Chief García. I want to know my rights…”

“Lieutenant Ortega, I'm not half as concerned about your rights as I am about my client's rights,” Will said firmly, concluding his cross-examination and glancing over at Caleb Marlowe, who gave him a quick nod of approval.

70

P
HILIPPE
L
UC
C
ARTIER, AN INVESTIGATIVE
reporter from
Le Monde,
the Paris newspaper, had spent his career specializing in coverage of terrorism and military-related issues. He was no slouch. As Francine Les Forges covered his qualifications in her direct examination, he acknowledged having been a recent winner of the Fullerton International Prize for Investigative Journalism.

“And what was the subject matter of the investigative article that caused you to win that award?”

“I was covering the supersecret United States Air Force base—flight test center—at Groom Lake, Nevada,” Cartier responded. “It's more popularly known as ‘Area 51'—and has been kept closed by virtue of consecutive presidential orders for many years.”

Cartier then described how he had spent more than a year investigating the background and formation of the BATCOM unit. He described how it had been assigned “Top Secret Special Access” status within the American government and the Pentagon. That meant, he explained, that documents relating to internal decision-making, missions, and logistics of the unit were probably kept in secured areas, protected by armed guards.

“I first tried to dislodge information regarding BATCOM by making an FOIA request—a freedom-of-information request under American federal law. However, after months of legal wrangling, the government refused access, and an American court upheld that.”

Thus, Cartier explained how he had had to use every investigative technique he had ever learned to try to gain access to the papers and records relating to the decision to initiate BATCOM as a weapon against terrorism.

“What I learned, after months and months of investigation,” the reporter continued, “is that BATCOM was created by the United States government to operate, and I quote, ‘outside the defined operational control of the United States combat forces within the traditional Unified Combatant Commands.' ”

“Did you ultimately obtain this information through internal documents of the Defense Intelligence Agency that related to the creation of BATCOM?” Les Forges asked.

“I did. Actually, to be precise,” Cartier explained, “I wasn't sure where the documents had come from. I had received a message from a person who simply identified himself as ‘Deep Source.' He said he had a memo that laid out the philosophy and strategy for the BATCOM unit.”

“And did you ultimately obtain a copy of that internal memorandum from the Defense Intelligence Agency in the United States government Department of Defense, that outlined what BATCOM was and what it was supposed to do?”

“I did.”

“And let me just ask you this,” the prosecutor said, clearly hoping to ward off preliminary objections, “at the time you received this memo, did you know you were receiving a document that was protected as top secret? In other words, did you intentionally violate any secrecy laws of the United States, that you know of, in receiving this document?”

“Honestly,” the reporter continued, “when I received this memorandum, I was not told that the man giving it to me had any connection at all with the American government. I do not know where he got it. It appears to be authentic. But there are no markings or stamps on this memorandum indicating that it is top secret—or even confidential.”

Will's cross-examination of Cartier focused on establishing only one fact—that the investigative reporter had been put on the BATCOM scent by prosecutor Les Forges herself. Though this point was not critical legally, it did prove one thing. Les Forges wanted the United States squarely in the dock. And wasn't too reticent about how she did it.

71

“I
AM
D
R.
M
ICHAEL
Z
AGBLUNDT
. I am a colonel—retired—from the United States Army. I have a PhD in history—primary area of emphasis is military history, with a particular focus in military strategy. I've taught extensively, in the past, at the U.S. Army War College. I've taught military history and logistics at the South Carolina Military Institute and the Academy of Arts and Technology in Alabama. I am also a founding member of the Capital Foundation of International Affairs. I've testified numerous times before the United States Congress on matters of military intervention and issues pertaining to joint UN peacekeeping efforts. I consulted with the United States government regarding inspections for weapons of mass destruction, both in Iraq I and Iraq II.”

“Dr. Zagblundt,” Les Forges continued, “have you authored any books dealing with subjects that are within the scope of your expertise?”

“Yes—one of my books, used as a standard textbook in military academies, is
Logistics in Low-Intensity Combat: Theory and Practice
.”