by Thomas Gatta
“I went over, knocked on the neighbors’ door, and told them I had their cat and was going to take him to the vet and then keep him. They offered to sell him to me for a hundred bucks. Being a law-abiding citizen, I made them sign a bill of sale and gave them the money, even though my wife told me later that I was nuts. Do you know what they told me about the cat? They said it belonged to their son, a soldier who was killed in Iraq. The cat wasn’t really their responsibility, they said.”
Maddie scooted forward a little in her seat, shook her head, and said, “I’m not sure where you’re going with this.”
“Well, what is the right thing, here? Looking after the cat? My wife said the other neighbors had already called the animal control people to come collect him. The animal nazis hadn’t had any luck catching Ziegfried. If they had, they would have gassed him. Would that have been right? I mean, look at that face. Isn’t he something? Or was the right thing for me to spend far more than the $100 on Ziggy getting him well? That was money my wife would say could have been better spent on our son’s college expenses. Or would the right thing have been for the soldier’s parents to care for their dead son’s cat because the cat was important to him?”
“You’re telling me this case is like your cat story?” said Maddie.
“What I’m saying is that what is ‘right’ to one person is often ambiguous or even wrong to another. Go do what you think is right, but make sure the law is your framework. Consult with the folks at Charlottesville, if you have questions. I can give you the name of some contacts at the Judge Advocate General’s Legal Center there. And I’m also going to assign Scott to work with you on the case. You’ll keep Sommers and me informed in meetings, but Sommers will be with you in the courtroom only with my permission.”
Maddie stood up, smiled at Cohen, and said, “Thank you, sir. Scott will be great.”
Cohen replied, “Yup, I know, and you can learn a lot from him. Oh, and he has contacts in Charlottesville you can tap into.” Cohen looked over his glasses at Maddie and said, “You two go and do a good job. And tell me my cat is worth it.”
“He’s priceless, sir,” Maddie said over her shoulder as she left his office.
As Maddie passed through the outer office, Portia winked at her. “Is he showing off his cat again? Vile beast.”
- 4 -
Scott Gardner looked over at Maddie and gave her a thumbs-up sign. He had been watching her out of the corner of his eye for the past 10 minutes. She had alternated between jotting down notes, doodling on her legal pad, and crossing and uncrossing her legs as the judge gave instructions to the jurors. Now the prosecution could begin calling its first witnesses. Maddie smiled slightly in response to Gardner’s gesture, stood, straightened the jacket to her dark blue pantsuit, and announced that the prosecution was calling Robert Mortimer to the stand.
Maddie was thrilled with Cohen’s choice of Gardner. Gardner was in his mid-forties, a divorced workaholic with years of courtroom experience and extensive contacts in the legal community. She needed his help, and just having him sitting at the table with her calmed her nerves. If she started to founder, Maddie thought Gardner would try to rescue her, something she knew Sommers would never do.
As Mortimer was sworn in and took the stand, Maddie glanced over at the Judge, the Honorable Constance McNamara. Judge McNamara had presided over multiple cases involving sensitive national security issues. In her early sixties, she had a reputation as a legal scholar and for not suffering fools lightly. Judge McNamara was particularly disinclined to suffer fools if they were prosecutors.
Maddie went to the podium with her notes and addressed Mortimer. “Mr. Mortimer, thank you for your help today.” A select few reporters were allowed in the courtroom, but no cameras. Maddie suspected the cameras wouldn’t have much to record. Mortimer, despite having a special operations record, looked pretty average—medium tall, medium build, medium hair, neatly dressed but not remarkable. Not someone you’d look at twice in the grocery store.
Maddie asked Mortimer, “Can you please tell the court what your role was in Khandahar?”
Mortimer said, “Yes, I was a targeting officer and an adviser to Afghan forces tasked with identifying and neutralizing terrorists in our area of operations.”
“What actions did that involve?”
“It involved collecting and analyzing intelligence information and working with Afghan forces to stop the terrorists from acting against US personnel and our supporters, including the Afghan Government.”
“Can you be more specific?”
“No, Ma’am, I am not authorized to do so.”
“Okay, can you tell me what your relationship is with the defendant, Sean?”
“Yes, he is my friend, and he was my team chief out in Khandahar.”
“Were you his second-in-command?”
“Yes, that’s right.”
“And how large was your team?”
“It varied, usually a handful of us—six to 10—plus Afghans.”
“Afghan Government troops?”
“Yes.”
“Who led the forces?”
“We were advisers, Ma’am.”
“I see.”
“Mr. Mortimer, how did you keep track of your success against your targets?”
“Ma’am?”
“Didn’t you have a wall with ‘hit list’ photos posted?”
Simon Smith, the defense attorney, said, “Objection, Your Honor.”
Judge McNamara replied, “Sustained.”
Maddie, said, “I’ll rephrase, Your Honor. Mr. Mortimer, how did you report your choice of targets and your actions against them?”
“We always wrote cables to SU Command Central with the details of our operations.”
“So, SU managers were always informed about your activities?”
“Of course.”
“And, Mr. Mortimer, did you post photos of the individuals you targeted on a wall in your facility?”
Smith called out, “Objection. This is not relevant.”
Maddie told the judge, “Your Honor, I am trying to establish a pattern and show the court the climate that existed at the time.”
McNamara said, “I’ll allow it, continue.”
Maddie said, “Mr. Mortimer, please answer, did you post photos?”
“Yes.”
“Why?”
“So we could keep track.”
“I see. And did you draw red ‘Xs’ across some of the photos?”
“Smith said, “Objection, Your Honor.”
McNamara replied, “I don’t see why. Continue, Ms. Kozak.”
Mortimer said, “Yes.”
Maddie asked him, “And what did those red ‘Xs’ signify?”
“That we’d killed them.”
“So you had a ‘kills wall?”
Smith said, “Objection, Your Honor.”
“Sustained.”
Maddie shuffled her papers and walked toward Mortimer. “Mr. Mortimer, how many photos with red ‘Xs’ did you have on that wall?”
“I can’t say, Ma’am, that would be classified. And numbers varied depending on the time frame.”
“I see. Well, can you give me a range? For example, was it fewer than 1,000 during the time you were there?”
“Yes.”
“And you were there for how long?”
“About three months.”
“So, during those three months, would you say it was fewer than 100?”
“No. It was more.”
“I repeat, can you give me a range?”
Smith said, “Your Honor, she is badgering the witness to provide classified information.”
The Judge responded, “In this case, Mr. Smith, I will allow a range to help establish the facts of the case. Mr. Mortimer, please answer the question.”
“I would say between 100 and 500.”
“Thank you, Mr. Mortimer. And how did SU Command Central respond when you notified it of your actions against your targets?�
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“They said, ‘Keep up the good work.’”
“Did anyone at Command Central ever voice any problem with what you were doing out in Khandahar?”
“No, not really.”
Maddie said, “What do you mean by ‘not really?’”
“Well, there was the usual sort of questions about whether one target should take priority over another and why we hadn’t taken care of some administrative crap more quickly, but nothing of real note.”
“And did SU managers know about your photo wall?”
Mortimer said, “I don’t know. I don’t believe so.”
“I see. And did anyone on your team ever question why the choice of targets?”
“I don’t recall.”
“Thank you, Mr. Mortimer. Now, I would like to ask you about a specific incident involving an attack on a school in one area of Khandahar. The attack, according to documents we have received—for the record that would be exhibits 1-54—occurred in May 2009. Do you recall the incident?”
Smith said, “Objection, Your Honor. Prosecution has not established that the incident involved a school.”
“Sustained.”
“Mr. Mortimer, do you remember an attack that occurred against a facility in Khandahar in May 2009? The facility is described in exhibits 1-54.” Maddie presented the exhibits, including photos, to Mortimer and the court.
“Yes ma’am.”
“Would you please describe to the court what happened during that incident in May 2009?”
Mortimer leaned forward, looked at the defense table then toward the back of the courtroom where Maddie had earlier seen two men and a woman, all in dark suits, conferring. She had assumed then that they were SU attorneys, and Mortimer’s eye contact with them strengthened her belief.
Mortimer said, “Well, we had intelligence that a group of Taliban was meeting in the northeastern part of the Arghandab area. We had reports that the group included some pretty nasty terrorists who had been attacking Government and police units and laying IEDs to kill US and coalition servicemen in the region. So, we worked with our Afghan friends to plan an attack on the place where the terrorists were reported to be meeting. We launched our attack against a compound—a couple of buildings and some huts—at night. I believe it was on a Thursday, past midnight. It was certainly dark. Our group—maybe two or three dozen total—went in with wheeled vehicles, which we left about a mile away. Then we hiked in the rest of the way to a compound where we expected to find the terrorists. We also had alerted a military air unit to provide helicopter support if we needed backup or medevac.”
Mortimer paused, glancing again at the defense table and the back of the courtroom. He then looked at the judge briefly and continued, “Our Afghan friendly forces were pretty green and needed a lot of encouragement. They were also pretty skittish.”
Maddie asked, “What happened, Mr. Mortimer?”
“We surrounded the compound, which was dark and quiet.”
Maddie showed Mortimer photos of the compound, which included three small huts, a small two-story house, and a larger multistory house. “Is this the compound?”
“Yes.”
Maddie stated, “For the record, please note that these are exhibits 55-65.”
“Mr. Mortimer, please continue.”
“Apparently one of our Afghans startled a dog. The dog started barking and roused someone in one of the huts. One of our guys neutralized him, but we were afraid we’d lost the element of surprise.”
Maddie said, “By neutralize, do you mean killed?”
“Yes.”
“Mr. Mortimer, how was the individual killed and who killed him?”
Mortimer looked at Maddie and said, “I don’t recall who killed him. He was shot, but the gun had a silencer, so that we wouldn’t alert the rest of the compound.”
Maddie said, “And Mr. Mortimer, was this standard operating procedure, to kill those who observed your unit?”
Smith said, “Objection, Your Honor. Not relevant.”
McNamara said, “I’ll allow it.”
Mortimer looked at the back of the room and said, “Ms. Kozak, it was SOP when we were raiding a suspected terrorist compound. A startled lookout who wasn’t neutralized could alert the terrorists to our presence. That could cause our guys to die. War isn’t nice, Ms. Kozak.”
Maddie, shook her head and responded, “No, Mr. Mortimer, war isn’t nice. Please continue.”
“Once the guy was neutralized, two-man teams checked out the three huts. All but one was empty. That one had a few more men, who we also neutralized. Then three men went into the smallest house. They found a couple sleeping on the second floor and a young male—maybe eight years old—sleeping in another room. One of our Afghan guys watched the woman and boy, and our other two guys brought the male outside and turned him over to our Afghan friends for interrogation.”
“Then we turned to the main, largest house of the compound. It was still dark, but we didn’t know if we’d alerted anyone or not. Six of us, Sean, Fred, me, and several Afghans went in with our NVGs.”
Maddie said, “NVGs?”
“Night vision goggles.”
Maddie nodded, “Thank you, please continue.”
Mortimer said, “Sean and the Afghans went in first and determined that the main ground room was empty. They went down a hall to the left, while Fred and I went down another corridor to the right. We found a couple of guys sleeping in a backroom, woke them, and hauled them outside. Sean and the Afghans found an old lady and old man sleeping in another room down the left-hand corridor. Sean and one of the Afghans brought them out, while two of our Afghan friends remained in the building to guard the staircase. We didn’t want anyone coming down and getting into already cleared areas. Then Sean went back in. He didn’t see the Afghans but heard a noise upstairs and thought they’d gone up without him.”
Maddie raised her hand to stop Mortimer’s account, “Mr. Mortimer, were you with Mr. Bennett at the time?”
“No. I was still outside.”
“Then how do you know what he thought and did?”
“He told me later.”
“Thank you. What did you observe?”
“I was outside, so I couldn’t see anything except through the windows.”
“And what did you see?”
“Nothing at first. And then I saw some flashes coming from one of the windows on the second floor.”
“And were those flashes consistent with gunfire?”
Smith said, “Objection, Your Honor. She’s asking the witness to speculate.”
Maddie said, “I’ll rephrase the question, Your Honor.” Maddie turned to the witness and said, “In your professional opinion as a soldier, were the flashes you saw through the window consistent with those you would see when automatic weapons are fired?”
Judge McNamara said, “You can answer the question, Mr. Mortimer.”
“Yes.”
“And those flashes occurred just after Mr. Bennett reentered the building?”
“A couple of minutes after, yes.”
“Did you hear anything?”
“Some thuds, but nothing else. Our guns had silencers.”
Maddie asked, “What did the rest of your team do then?”
Mortimer responded, “We left the Afghans we had gathered from the buildings with some of our friendly forces outside and reentered the main building. We then proceeded up the stairs to assist if needed.”
“What did you find?”
“We entered a large main room, which was empty except for the two Afghan troops who had been with Sean.”
Maddie said, “And where was Mr. Bennett?”
“He was coming out of a room behind the main room.”
“Mr. Mortimer, was there any light in the room?”
“Very little—only from the windows, and it was a pretty dark night.”
“How could your team see?”
“We all had NVGs.”
“And did Mr
. Bennett have NVGs as well?”
“Yes.”
“And when Mr. Bennett came out of the room behind the main room what did he say?”
Mortimer glanced again at the back of the courtroom and said, “He said he got all of the mother-fucking cock-suckers.”
“And did he make any gestures?”
Smith said, “Objection, Your Honor.”
“Overruled. Answer the question.”
“He raised his Glock and blew on the end.”
“Mr. Mortimer, was the Glock pistol the only weapon Mr. Bennett was carrying?”
“No, he also had an M-4.”
“Had he fired it?”
“Objection, your Honor. She’s asking for conjecture. We’ve already established that Mr. Mortimer was outside the building when shots were fired.”
“Sustained.”
“Mr. Mortimer, what did your team do after Bennett came out?”
“We congratulated him, checked the second floor and the roof of the building, and then did a quick search of the compound for weapons and items of intelligence value.”
“And what did you find?”
“Nothing but another old guy sleeping on the roof. We took him out and left him with our Afghan troops. We also found some weapons—mostly old AKs—but decided to return the next day for more site exploitation. We had removed our NVGs and were using flashlights, but we needed to come back in the daylight.”
“And did you or members of your team go into the back room?”
“Yes, I did, and so did the other members of our team.”
“Everyone?”
“Yes.”
“Why?”
Smith said, “Objection, Your Honor.”
“Overruled.”
“We wanted to see the bodies.”
“And what did you see?”
“About a dozen males in various states of undress, most in their beds.”
“About a dozen?”
“Sixteen.”
“Were they armed?”
“I don’t recall.”
“Were they all dead?”
“Very.”
“What were their ages?”
Smith spoke again, “Objection, Your Honor. She’s asking for speculation.”
