The Accused (47 page)

“Colonel Marlowe, were you given authorization by those in attendance at that meeting aboard the USS
Nathan Hale
to pursue and eliminate any members of an AAJ cell group believed to be involved in the kidnapping incident?”

“Yes, sir, I received that authorization in our meeting. If I was able to verify linkage between Abu Adis or his AAJ cell unit and the kidnappers, I had the authority to use deadly force and eliminate them.”

“During that meeting, were you given top secret information regarding a threat posed to American national security by Abu Adis and his AAJ cell group?

“Yes, sir, I received such information,” Marlowe answered. “I was bound—and am bound now—not to disclose the details of that information. But yes, there was information of a serious threat to the safety and security of the United States of America from Abu Adis and his AAJ cell group, who were in Mexico at the time.”

“Now, at the time of the Chacmool incident, had you come into the possession of intelligence information that actually linked Abu Adis with the aborted kidnapping of Secretary Kilmer?”

Out of the corner of his eye, Will noticed that Les Forges was sitting steel-spine straight at her counsel table, her body angled forward, her eyes riveted on Marlowe.

“I had received intelligence information linking Abu Adis and his AAJ cell group to the kidnapping of Secretary Kilmer.”

“And what was the source of that information?”

“Ultimately—the origin of that information was our CIA operative, Carlos Fuego. Fuego had disclosed to me, personally, as we were planning our rescue of Secretary Kilmer, that he had the cell-phone number of Abu Adis. He had gone to great lengths to develop that information. That cell-phone number, as it turned out, would provide two separate corroborations—of the AAJ involvement in the kidnapping and of their final location at Chacmool.”

“Let me just step aside for a minute from this line of questioning and ask you a few things about Carlos Fuego. First of all, he was a good friend of yours?”

Marlowe paused and looked down. Will could see that he was struggling a bit as he recalled his friend.

After he had composed himself, he answered.

“Carlos Fuego…I was the best man at his wedding. He and I fought and trained together. He was a good friend and a brave, loyal American.”

“So that the record can be entirely clear on this matter, did you have any information—any knowledge—any suspicion or inkling—that Carlos Fuego might have been in that house in Chacmool when you ordered your men to commence firing?”

Marlowe paused, clenched his jaw slightly, and began to answer—but there was a catch in his voice. He cleared his throat…took a drink of water. Then he answered.

“I had absolutely no suspicion—I had no information whatsoever—that my friend Carlos, or his wife, or his children were in that house when I gave that order. That is the absolute truth. I know it to be the truth. And God—who searches all minds and hearts and souls—knows that it's true.”

“In any of your conversations with Mr. Fuego, did he ever indicate to you any regret over his work with the CIA?”

Marlowe shook his head sternly.

“Carlos Fuego never made any such statement to me. I never heard any information that he had made any statement like that to anyone in the world. In all of my dealings with him, I found him to be enthusiastic and courageous about his work with the CIA. Of course he had concerns for his safety, and the safety of his family, from time to time. But the assertions I've heard in this courtroom in this case—that he wanted out of the CIA, that he regretted his work with that agency, and that he feared retaliation by the United States government against him—are shameful, cowardly lies.”

Now Will turned to one of the central issues of the case—the connection between the occupants of the house at Chacmool and the group of terrorists involved in the kidnapping.

“Would you explain to this tribunal,” the attorney asked, “how you received verification that the terrorist cell—at or in the house at Chacmool—was part of the same terrorist group involved in the kidnapping of Secretary Kilmer?”

Marlowe described, in only general terms, his access to American surveillance intelligence through the SIGINT satellite.

“Did you receive confirmation that the SIGINT satellite was able to lock in on the cell-phone number of Abu Adis?”

“Yes, sir, I did. SIGINT locked in on Abu Adis' cell-phone signal at the exact location where, a short time later, we assaulted the terrorists and rescued Secretary Kilmer—it was at Puerto Juarez, slightly up the coast from the Cancún hotel. It appeared they were planning on faking an escape by boat from Puerto Juarez while actually taking the Secretary of Commerce inland, toward the jungle. Of course we got to them first and secured the Secretary's release.”

“Within the next forty-eight hours, were you able to also locate Abu Adis' cell-phone signal at another location?”

“SIGINT again confirmed a lock-in on Adis' cell-phone signal—this time at the safe house, which we shortly thereafter attacked.”

Marlowe then described the logistics of the nighttime attack itself—their landing point near Chichén Itzá, and the positioning of his unit at the house in the traditional L-shaped surround—with Master Sergeant Rockwell, Staff Sergeant Baker, and him covering the side of the house; Sergeant Thompson in sniper position covering the front entrance; and Chief Dorfman covering the road and any possible escape of the terrorists from the side or back.

As the colonel described his entrance into the small house and his discovery of the bound bodies of Carlos and his family, he paused several times.

“Colonel Marlowe, is there any possibility—even if we assume you are completely incorrect that Mr. Fuego and his family were tied to chairs as hostages—is there any reason to believe that Carlos Fuego would have identified himself as a CIA agent in his negotiations with the AAJ?”

“Mr. Chambers, sir, that is an outlandish and ridiculous scenario. Mr. Fuego was a seasoned, experienced CIA operative. He knew that the AAJ simply would not have trusted him—no matter what he said. His revealing a direct agency relationship to the United States, Mr. Fuego would have known, would have resulted in his immediate execution.”

“And would such a CIA agent, even if he had wanted to negotiate with the AAJ, ever have considered bringing his wife and children along for the ride?”

“Not only is that a prohibited scenario, but knowing Mr. Fuego's love for his family—it simply never would have happened.”

“Did you review the reports of the Mexican federal police?”

“Yes, sir, you provided those reports to me. And I read them over exhaustively.”

“Did you find anything unusual about the description of Mr. Fuego's body?”

Marlowe hesitated for a moment and searched Will's face. Though they had discussed this in pretrial preparation, somehow the question had taken him by surprise. After a moment's reflection, he gathered his thoughts.

“Yes, sir, I think I know what you are referring to. The police report—I think it was on page 3—mentions that Mr. Fuego's body was found with his CIA ID tag hanging from his neck. It is impossible to conceive of any explanation for that except one.”

“And what explanation is that?”

“That when he was captured and tied up by the AAJ, they put it on him as a message to me and to anyone else who might find him.”

Les Forges rose and politely objected, assuring the tribunal that she had tried to minimize her technical objections to Marlowe's direct examination, but she could no longer sit by and watch him speculate
wildly about the intentions of so-called terrorists who had never been identified and who were not before the tribunal as witnesses.

Korlov rapidly sustained the objection and struck Marlowe's last remark.

“Why did you instruct the members of your unit not to enter the house after you had discovered what had occurred?” Will continued.

“It was clear to me, when I saw that Mr. Fuego and his family had been hit by our weapons fire, that this was going to be a matter of an inquiry—by someone—at some point. I wanted to shoulder the responsibility for the incident myself. Frankly, I didn't want anyone else to be in a position of having to describe what I had seen.”

“And why did you instruct your unit to evacuate the scene immediately when you detected Mexican police arriving?”

“It seemed to me more than coincidence that, immediately after our assault on the house, several squad cars of the Mexican police should arrive on the scene. Members of the Mexican military—and the law enforcement personnel whom we had kept informed of our rescue efforts—had been told that an American unit might be moving out, toward the jungle, from the Puerto Juarez area. They had promised complete secrecy. Obviously, that promise was not kept.”

The colonel then cleared his throat and leaned forward in the chair. “I felt it was my responsibility to avoid—if at all possible—an international incident between the American military and the Mexican police. Therefore, I thought the safest course was to immediately evacuate and abort the mission.”

74

W
ILL
C
HAMBERS
'
FINAL QUESTION
to Colonel Marlowe was a technical legal one. In preparing for the defense case, Len Redgrove had urged his younger colleague to zero in on paragraph iv of the “War Crime of Excessive Incidental Death to Civilians” under Article 8(2)(b) of the ICC Criminal Code. That element of the crime required that “the conduct took place in the context of, and was associated with, an international armed conflict.” It was the kind of technical element Will felt the tribunal would give short shrift by simply assuming that the incident at Chacmool would qualify as part of an “international armed conflict.”

Nevertheless, after Redgrove's insistence upon it, Will figured he should address the question, as there might be some ambiguity about the meaning of the phrase “international armed conflict.”

“Colonel Marlowe, lastly, would you tell this tribunal whether or not your mission at Chacmool was, in your understanding, part of an international armed conflict between the United States and the nation of Mexico?”

Prosecutor Les Forges objected, submitting to the tribunal that it was irrelevant whether or not America was at war with Mexico—as Article 8, paragraph iv did not require any proof of that. She submitted that the word “international” was to be taken in its ordinary and plain meaning. That is, a conflict between one or more nations and the territory within another nation—not necessarily conflict
between
nations.

After a short consultation, Judge Brucker of Germany broke his characteristic silence in the trial to pose a question to Will.

“Mr. Chambers,” Brucker began, “am I to assume that you are interpreting paragraph iv of Article 8 to require the existence of an international armed conflict in the sense of one nation–state fighting against another nation–state?”

“Your Honor,” the attorney replied, “that is exactly what our interpretation is.”

“Well,” the judge responded, “then isn't the United States government asking for the chance to have it both ways? Hasn't the United States declared war on terrorism?”

“We certainly have.”

“Then, can you point out on the globe where the nation–state of terrorism resides?”

Judge Ponti smiled at that, and Judge Korlov nodded in agreement.

“Of course there is no nation–state specifically involved in our war on terrorism. But the concept of a war on terrorism is a legitimate and sovereign right of self-defense of the United States of America. And I would submit that the War Crimes Criminal Code was drafted substantially before September 11, 2001. The drafters had not ever countenanced the possibility that a nation–state, like America, would declare a global war on terrorism out of its sovereign right to defend its own borders.”

Judge Brucker was not convinced.

“You have not answered my question,” he said. “It appears that the United States wants the best of both arguments. It wants to declare war on terrorism without limitation to borders or nations—and yet it is requiring this tribunal to interpret paragraph iv, with its reference to international armed conflict, in a way that excludes the war on terrorism from any elements of the war-crimes statute. Is that what you're saying?”

“What I am submitting, Your Honor, is that paragraph iv's reference to ‘international armed conflict' must be interpreted according to the language of the war crimes code itself, and the Rome Statute, which acts as the preamble. If I may direct the court's attention to the Rome Statute, it says that the jurisdiction of this court, with regard to war crime, extends only—and I quote—‘over the most serious crimes of concern to the
international community
as a whole.' In other words, only those war crimes, that have a characteristically
international
aspect. And
that means war crimes involving two or more nation–states—or internal civil war between competing factions within a single nation–state.