The Accused (45 page)

Under the prosecutor's questioning, Zagblundt explained that, in preparation for his testimony, he had reviewed the full transcript of the testimony at the Article 32 hearing held at the Quantico Marine base and had read all of the police reports from the Mexican federal police, as well as the report of Philippe Luc Cartier—the investigative reporter for
Le Monde
.

“Dr. Zagblundt, let's address, for a moment, the information you relied on from the award-winning journalist Philippe Luc Cartier. Specifically, how would you characterize the configuration of BATCOM?”

“This is a very troubling development for the United States.”

Les Forges glanced at the panel. Judge Brucker had a bland expression, but Korlov and Ponti seemed to be riveted by the witness's testimony.

“And why do you say this is a troubling development?”

“Well, let's take the big picture. Historically, special operations have been divided between the military on the one side and the Central Intelligence Agency on the other. Each approach has strengths and considerable weaknesses. The CIA can slip in and out, relatively unnoticed, from a hostile area and execute its task covertly, with little bureaucracy and great rapidity. But that's also a problem. It means there's a lower level of accountability and visibility—which means that human-rights violations can occur under the radar quite often. The military has greater firepower, and better discipline, but it's slow-moving. On the other hand, it has a higher level of accountability—to congressional oversight committees and the executive branch, and ultimately, to the American people.”

With that, Zagblundt got up from the witness stand and moved over to a large easel, where he took a laser pointer and began indicating various areas on a large world map.

“Today, American special operations forces have been deployed to thirty-five different countries around the world, in thirty-two separate deployments. Eight in Central America, nine in Africa, two in Europe, and some thirteen in the Middle East and the Far East. There are some forty-four-thousand American special operations personnel. The military branch with the smallest number—the United States Marine Corps—was likely picked for the experimental development of BATCOM for that reason. It was probably easier to keep BATCOM under the radar in the Marines than in one of the other branches. And then, of course, we have no idea how many CIA agents have been deployed as special operatives around the world to fight terrorism as well.”

“And considering the configuration of BATCOM,” Les Forges followed up, “what threat does it pose to human rights of citizens in other nation states?”

“Oh—there is a considerable threat. As I have studied it, BATCOM seems to possess the worst of both the CIA and the military special operations units. It has the covert nature and low accountability of the CIA, matched with the ferocious firepower and huge
support network of the American military. In short, it is a strike force with the potential of doing great harm to civilians with limited oversight by the government.”

The prosecutor joined Zagblundt at the world map, took the laser pointer, and indicated several of the spots where special operations forces were presently deployed.

“Yet, Dr. Zagblundt, how do we know whether such harm is likely—do we have any historical models?”

“Oh, yes,” the witness answered affirmatively. “Just look at the history of the CIA and special operations forces. The Bay of Pigs failure in Cuba was a special operations catastrophe of enormous proportions. The increasing use of the CIA in assassinations and the destabilizing of foreign governments led to a ban, under President Gerald Ford, against CIA assassinations. Under President George W. Bush that assassination ban was rolled back. And then, in February of 2002—as a result of the rollback, I believe—a CIA-launched Predator missile struck a truck in Afghanistan, killing three local citizens. There is strong evidence that those killed were not terrorists, but merely petty smugglers.”

“Do you have any similar concerns for special operations abuses within the American military?”

“I do have concerns,” Zagblundt continued, now back in the witness stand and folding his hands in front of him at the witness table. “I would direct this tribunal's attention to a tragic series of events back in 2002—several American special operations soldiers at Fort Bragg, North Carolina, killed their spouses and themselves, all within a short period of time. The psychological and psychosocial factors that led to those deaths are still not entirely clear—but it
is
clear that without strict constraints, a rigid chain of command, and high accountability, these special operations troops can become rogue and violently dysfunctional very easily.”

“With what result?” the prosecutor asked, spreading her arms before the three judges.

“Well, let's be very specific,” Zagblundt answered. “I believe that the slaughter of innocent civilians, including an American CIA officer, at Chacmool, Mexico, was a result of two things. The first factor is the irresponsible design of the BATCOM unit from a strategic standpoint. Lack of accountability. The ‘train as you fight and fight as you train'
philosophy they use for these special operations forces. The very nature of BATCOM predicted that, very quickly after it started being deployed, a tragic loss of civilian life would likely ensue. And that's exactly what happened.”

“Now, Dr. Zagblundt, you say that the structure of BATCOM predetermined the tragic outcome here—the reckless and unnecessary taking of civilian lives. But you also said there was a second factor. What did you mean?”

“Well, what I was referring to was the way in which the military operation was actually carried out,” the witness replied. “And here I relied primarily on the Article 32 hearing transcript from the military tribunal. In the hearing at Quantico, Master Sergeant Rockwell suggested to Colonel Marlowe that, before commencing a massive attack on the house, they take out the lookout with a single, noise-suppressed round, and then do a close-up reconnaissance of the house to see who was inside. Had they done that, they would have discovered there were civilians in the house, and this occurrence could have been avoided.”

“Well, let me just argue from the devil's advocate position,” Les Forges said, pacing a little before the judges. “What if the defense in this case says that this is merely a negligent command decision from Colonel Marlowe—that it was certainly not done intentionally?”

“The problem I have with that,” Zagblundt answered, “is the fact that there are two very condemning pieces of evidence that show us that Colonel Marlowe knew there was a high risk, even likelihood, of civilians being in the house. First was his reference to his taking responsibility for ‘collateral damage.' And then there's the very disturbing reference Marlowe made, one that was documented by the prosecution's prior witness, Chief Salvador Garciá. To me that means Marlowe knew, or at least should have known, that the attack would cause incidental death to civilians, as Article 8 requires the prosecution to show.”

The prosecutor returned to her notes, and then prepared for her final volley of questions, which were tailored to address the element of Marlowe's offense requiring evidence that incidental loss of civilians would be of such an extent as to be “clearly excessive” compared to the concrete military advantage being anticipated.

“Dr. Zagblundt, would you tell this tribunal, from an objective military strategy standpoint, what concrete and direct military advantage
should have been anticipated by the American government from this attack in Chacmool?”

“I must be very honest here,” the witness said, leaning forward and spreading his hands out before him, palms down. His voice was intense and disciplined.

“Frankly, I do not think the American military could have anticipated much, if any, concrete military advantage from the attack they launched against the individuals in the house. There was scant evidence that actually connected to persons there with the kidnapping attempt on Secretary Kilmer.

“Even further, if we assume they knew Abu Adis was present, I believe the American government knew only that Mr. Adis had
political
affiliations with the group that was led by the late Abdul el Alibahd. In other words, the American government knew only that Mr. Adis
associated
with known terrorists. I do not believe there is any evidence based on which the American government could have anticipated that Adis himself was a terrorist, or was engaged in any conspiracy to commit a terrorist act. Merely being associated with groups of persons who have a terrorist background should not cause one to pay the price of execution for that association.”

With that statement by the witness, Francine Les Forges rested her direct examination and strode confidently back to the counsel table.

72

M
ICHAEL
Z
AGBLUNDT WAS A DOUBLE-BARRELED
witness, and Will knew it. First, he was an expert witness for the prosecution—and he had been left as their final witness so as to produce the greatest impact on the judges.

But beyond even that, the attorney understood that a former American military officer who had published a book on military strategy—and who was criticizing not only the execution of the military operation at Chacmool, but also the very existence of the BATCOM unit in the first place—could be pivotal in the judges' deliberations.

Zagblundt was confident, at ease, and unperturbed as he watched Will approach the podium for his cross-examination.

“Are you assuming here today, Dr. Zagblundt, that the nation of Mexico is a friendly nation–state in its relationships with the United States—friendly from the standpoint of there being no antagonistic military relationship between the two countries?”

The military expert studied Will for a moment, then smiled.

“Yes, I suppose I am. Though I do not believe that is a critical assumption to my ultimate opinions here.”

“Not critical?”

“That's what I said,” Zagblundt replied casually.

“Are you saying that it would make no difference if Mexico had been harboring anti-American terrorists—who were planning to attack American citizens and institutions of the American government?”

Zagblundt leaned forward and then back again in his chair, clearing his throat.

“No, I'm not saying that. That would make a difference.”

Now Will thought it was time to direct a blow to Zagblundt's soft underbelly.

“You have testified that there was little or no tactical advantage to the United States of America, in relation to its war on terrorism, in the attack on the house at Chacmool—which was purportedly for the purpose of killing Abu Adis and his AAJ cell group. Is that right?”

“Not exactly. I think you're twisting my words, Mr. Chambers. What I said is that there was very little concrete advantage for the American government in the attack—and even if Abu Adis was there at the time, there was no proof he was engaged in acts of terrorism against the United States. Thus, there was no justification—no real military advantage—for the slaughter at Chacmool.”

“And when you say there was no proof of Abu Adis having plans to launch a terrorist attack against the United States—do you base that on your vast access to American intelligence?”

Zagblundt chuckled a bit and then, with a superior look, rebuffed Will.

“Mr. Chambers, let me be clear about this. For many years I taught at the United States Army War College—and for many years, I have had access to American intelligence, much of it dealing with Mexico, and Central and South America. I was, as you recall, also an advisor to the United States government on weapons inspections going on in Iraq, both in the 1991 post–Gulf War inspections, and those back in 2001 and 2002. Yes—I've had access to high-level intelligence on terrorism, and that's what I draw from in forming the opinions I'm stating here today.”

Will stepped over to the podium and retrieved something from his file—then covered it up under a notebook. He looked at Zagblundt and smiled.

“Let's talk about your access to American intelligence. In fact, let's address your role as an advisor to the United States government regarding arms inspections in Iraq. You are no longer an advisor to the United States on Iraq or Middle Eastern weapons inspections, is that correct?”

“That's correct. I've retired from that role. I am now a consultant to other entities in other capacities.”

“Is that another way of saying that you spend most of your time now in testifying for attorneys in personal injury lawsuits where harm or loss was caused by actions of the American government?”

Zagblundt paused. But seeing a window of escape, he came back aggressively.

“I would deny that's my primary source of income, so that's not true.”

Will pulled from his file a listing of legal cases.

“Dr. Zagblundt, I have here a multipage list of case after case in federal and state courts around the United States, and even some in other countries. In these cases, in the last few years, you have testified almost exclusively for persons who sought to sue the American government, or other American agencies, relating to claimed misdeeds by the American military. Will it be necessary for us to itemize each of these cases and ask you how much you received as a testifying expert in each of them?”