The Accused (48 page)

Now Judge Ponti was joining the fray.

“Mr. Chambers, point out to me—anywhere—proof of your statement that your interpretation is somehow part of the history of the development of this criminal code. I simply reject that. I know of no support, whatsoever, for that statement. Can you enlighten me?”

Will paused for a moment, excused himself, and walked over to defense counsel table. He snatched up a black notebook marked “History of International Criminal Tribunals in the ICC” and then returned to the podium. Flipping open to a page, he looked up at the French judge.

“If I may, Judge Ponti, I would direct your attention to Volume 89 of the
International Law Review.
Within it is an article written in 1995, about the 1994 adoption by the International Law Commission of a draft statute for an international criminal court. That draft served as a basis for what would later be the ICC under the Rome Statute.”

“I'm still waiting,” Ponti retorted, “for some proof that supports your interpretation of the word ‘international' as excluding the situation that occurred in Chacmool, Mexico.”

“If I may,” Will replied, “let me call your attention to a statement in that
International Law Review
article. It described the initial work of the International Law Commission, and its draft statute, as extending jurisdiction only—and I quote—‘over grave crimes of an international character under existing international law and treaties.' So, what is the ‘international community'?”

“Isn't that self-evident?” Ponti shot back.

“I certainly think it is self-evident,” the attorney replied. “The other day, I looked up in several different dictionaries the definition of the word ‘international.' Every primary and secondary definition included the concept of two or more nations. When we talk about crimes that impact the ‘international community', we cannot simply mean ‘impacting global citizens of the planet Earth,' can we? For if that is the interpretation, then this court is urging the breakdown of sovereign boundaries between nation–states. That certainly is not the intent—is it?”

Judge Brucker saw where Will was heading and tried to redirect him.

“So how do
you
define ‘international community'—or ‘crimes of an international character'?”

“Respectfully, Judge Brucker, that term does not apply to the circumstances as they existed at the time that the United States made a limited assault on the house outside of the village of Chacmool in pursuit of terrorists who posed a threat to the national security of the United States. That was not an international armed conflict.”

Judge Korlov weighed in.

“Can you give us other examples of what would
not
be an international armed conflict?”

After reflecting for a moment Will answered.

“As an example, if a customs agent, or perhaps a state patrol officer, in the United States, were in hot pursuit of a bank robber, who then crossed the American border into Mexico. And just on the other side of the border, a gun battle broke out between the customs agent, or state patrol officer, and the bank robber. Just because it took place on Mexican soil doesn't mean it was part of an international armed conflict. Or, perhaps this—an American naval vessel stops at Cancún, and one of its sailors goes ashore on leave. He's kidnapped by a drug cartel, and the American military attempts to secure his release by the use of force—on Mexican soil. That also is not an international armed conflict.”

Will was ready to list a half-dozen more hypotheticals, but Judge Korlov cut him off, raising his hands and waving them.

“Thank you. Thank you. That's enough. I think we see what your argument is. We're going to permit the question to be asked and the answer to be given—for whatever weight it may have.”

Will put the question to Colonel Marlowe again, as to whether or not he considered the assault at Chacmool to be part of an international armed conflict.

“Sir, as I understood the situation, I had no reason to believe that it was part of an international armed conflict of any kind. We were not attacking the nation of Mexico. We were defending the security of the United States from a small group of known terrorists.”

Will then rested the defense case.

Walking back to his counsel table, the attorney was not entirely sure what might have been accomplished by his dialogue with the judges on
an obscure point of international law. Indeed, he could only hope that, as far as obscurity was concerned, his argument had not clouded what he felt were the truly critical issues in the case—issues that were now hanging precariously in the balance.

75

F
RANCINE
L
ES
F
ORGES SNATCHED UP
her notebook and legal pad and strode rapidly to the podium. Everything in her demeanor and her bearing indicated that she meant business—and she would get right to it.

“Colonel Marlowe, you placed great reliance on the fact that your satellite technologies supposedly traced the signal from the cell phone of Abu Adis to the location of the kidnappers near Cancún, and again, later, to the house where you launched the attack—correct?”

“Yes, ma'am—I have testified that we identified that signal on two separate occasions, tying Abu Adis to the group of kidnappers and then tying him to the house we attacked.”

“Correct me if I'm wrong, Colonel, but is a cell phone a small portable item that can be handed from one person to another?”

‘‘Yes, ma'am.”

“Thus, Abu Adis—even if he had been the one who owned the cell phone—could have handed it off to someone else, and your sophisticated satellite equipment would have been picking up the location of the cell phone. But it would not necessarily have been registering the location, or even the presence, of Abu Adis himself?”

“Yes, ma'am, that would be true except that—”

“So, it is true. You had no reason to believe you were locating Abu Adis—you were only locating a cell phone that might have been passed off to somebody else?”

“Madame Prosecutor, if I might answer. What I was trying to say is that your question has a wrong assumption in it. Abu Adis was known to have several cell phones—but the cell-phone number in question belonged to the phone he protected with his life. It was his most secure number—and he was known to have killed others who had come into
possession of it. The chances that Adis passed off that cell phone, with that number, to someone else during the time of our mission, are infinitesimally small—almost nonexistent as far as I'm concerned.”

Les Forges decided to change direction.

“You've listed the high-ranking government officials who participated in the decision to undertake this mission. I know that you did not mention the presence of either the President or the Vice President of the United States in that meeting.”

Marlowe smiled.

“Yes, ma'am, that's correct. Neither of them was present during that meeting.”

“But because of the high ranking nature of the American government officials present there, you were certainly given the information that the president himself had approved this mission—is that correct?”

Marlowe eyed the prosecutor. He knew something about booby traps. But he also knew they were usually more carefully disguised than this one.

“Ma'am, I had absolutely no information to lead me to believe the president specifically knew of, or specifically authorized, this mission. To this day I have no information that the president himself was involved in authorizing it. The decision to undertake the mission was mine—and mine alone—in consultation with the government representatives I mentioned previously in my testimony. Any fault that may be laid on anyone's shoulders as a result of this incident is to be laid on my shoulders, and mine alone.”

“I appreciate the nobility with which you assume responsibility—therefore you accept responsibility for having committed a war crime at Chacmool?”

“No, ma'am. I accept the responsibility for having accidentally caused the death of a close friend, his beautiful bride, and their two little children. To this day I struggle with that tragic loss.”

“Is that correct? Do you really?” Les Forges with a tinge of sarcasm.

“Of course I do.”

“And do you, today, regret your actions and the decision that you made—and the orders that you gave that night at Chacmool?”

“Madame, I regret that I was led into a trap by devious and evil people. But I did not have sufficient information to have understood that trap, and to have prevented the tragic consequences.”

“But you knew there would be civilians—there might be civilians in that house when you ordered the bullets to begin flying into it?”

Marlowe took a second to respond. Will was glued to his seat at the defense table, waiting, holding his breath, for Marlowe's response.

“I knew there might be a civilian presence in the house—that is correct.”

“And yet you ordered an assault that was likely to take the lives of everyone in the house, including those civilians?”

“Ma'am, I'm not sure I agree with that.”

The prosecutor bulleted her next question, this time moving away from the podium with her hands clasped behind her back, her eyes fixed on the man in the witness chair.

“Did you consider yourself the ‘number-one man'—that is, you were man number one in the radio transmissions to your team?”

“That's correct.”

“And it was you—man number one—who indicated you knew there might be civilian loss at the very instant you gave the order to shoot. Correct?”

“You're correct in that. I did say those words. The listening device of the Mexican police did pick up my words correctly.”

Les Forges handed something to the clerk, who then walked it over to Marlowe at the witness stand.

“Look at these pictures,” she said brusquely. “Look at the photographs of the murdered bodies of Carlos Fuego and his wife, Linda, and his two children. Study those pictures, Colonel Marlowe. And then tell me that you regret the loss of civilian life. These are the civilians you killed—these are the civilians you murdered. Were these lives worth the tactical advantage gained by chasing some men through the jungle whom the United States thought might possibly pose a risk to it?”

Marlowe's gaze was locked onto the pictures in front of him. His chin quivered, and he raised his face toward Les Forges. He was silent for almost a minute.

After regaining his composure, he answered.

“Madame Prosecutor, I can imagine nothing in this world that would have been worth taking the life of Carlos Fuego and his family.”

Marlowe cleared his throat and took a swallow of water. His expression was controlled, as if etched in stone. But the court personnel could not see the tears that were welling up in his eyes.

As Les Forges sat down, Will knew two things despite the theatrics of her cross-examination. He knew that the prosecutor was moving from her initial theory—that the United States had used Marlowe and his squad to deliberately assassinate Fuego as a potential CIA defector. But he also knew Les Forges had confidently built a convincing fallback position—that proving that a war crime had been committed by Marlowe required her to demonstrate only a high degree of recklessness in the face of very little tactical military advantage. If the tribunal accepted that interpretation of Article 8 of the codes, Colonel Caleb Marlowe might be spending the rest of his life in a prison for war crimes.

The attorney walked slowly to the podium for redirect examination. His task was simple. His questions were going to be concise.

“Colonel Marlowe, this has been a very difficult day for you. My questioning is going to be very limited. You were asked about ‘civilian loss'—‘collateral damage' was also a phrase that was used by the prosecution. You used both of those phrases in the seconds and minutes prior to giving the command for the assault to begin—and you admit that?”

Marlowe nodded slowly.

“Yes, sir, that is correct.”

“What civilians were you referring to?”

“Not civilians. Not plural.”

“So, you were considering the possible presence of
one
civilian in the house at the time you ordered the attack?”

“Yes, sir, that is exactly what I intended. There were four terrorists who had escaped. It was clear to me that Abu Adis was one of them, and that he had his cell phone with him in the safe house in Chacmool. When I looked at my thermal-imaging scope, I saw four individuals, seated. There was a lookout out front. That makes five people. Of course, the fifth person could have been another terrorist. But I also considered the possibility it was not. That it was, for all intents and purposes, a Mexican civilian.”

“And did you have any reason to believe that it was one civilian in particular?”

“Yes. I did not know his name. But American intelligence knew there was a high-ranking Mexican official who had been collaborating with the AAJ. Our belief was that this Mexican official had given information to the AAJ to aid them in their kidnapping of Secretary Kilmer. That same official was the civilian I anticipated might have been in the house that night.”