by Thomas Gatta
“I approved our officers to accompany, advise, and assist an Afghan unit conducting a raid on a group of suspected terrorists who had plans to meet at a site in that part of Arghandab. We had no information that the site was a school or that civilians would be present.”
“And did you approve your officers, including Mr. Bennett, to engage in lethal activities as part of the raid?”
John looked at Gardner and said, “Sir, I am not able to explain all our authorizations in an open courtroom. I can say that our officers must be able to defend themselves, including using lethal force, when threatened.”
Gardner asked, “So, the defendant was authorized to kill those students?”
Simon called from the defense table, “Objection, Your Honor.”
The judge looked over her glasses at Gardner, “Sustained. Would you like to rephrase your question, Mr. Gardner?”
“Yes, your honor. Sir, what did you authorize Mr. Bennett and his team to do during the raid?”
“I cannot provide the court, in this open forum, sensitive information. I can tell you that Mr. Bennett and his team were authorized to accompany, advise, and assist the Afghan unit that was trying to apprehend terrorists who were smuggling bombs and IEDs into the area to attack coalition forces and civilians.”
Gardner said, “I see. And did you have information that convinced you the terrorists would be at the specific site on the specific night of the attack?
John responded, “I can’t go into detail, but we believed the terrorists would be passing through the area at that time.”
“When did you authorize the raid by Mr. Bennett, his team, and his Afghan unit?”
“I don’t recall. It might have been the during the day before the raid that night.”
Gardner asked, “And how did you authorize it? Was it in a cable?”
John looked toward the back of the room and said, “I believe it was during a telephone call. A cable followed later, but wouldn’t have reached Mr. Bennett until after he’d conducted the raid.”
“So, haste was important that day and night?”
“Yes. We were concerned the terrorists might leave the area, and we wanted to apprehend them before they did so.”
Gardner looked at the witness, “Sir, you said ‘apprehend?’ What does that mean, exactly?”
“I don’t understand you, sir. Do you want a definition? I’m not a dictionary or an English professor.”
Gardner smiled slightly, “Sir, I’d like to know whether your description of ‘apprehend’ includes killing?”
“It may, depending on the circumstances.”
“Which are?”
Smith called out, “Objection, Your Honor. I believe this information is sensitive.”
Judge McNamara looked at the witness and said, “I’ll allow the question. Will the witness please respond, as you are able, without sensitive specifics. I believe the court needs to know the answer.”
“We preferred that the Afghan unit we were advising would take suspected terrorists into their custody. That would enable later questioning. Sometimes, however, that wasn’t possible. Sometimes suspected terrorists were killed during firefights. We certainly didn’t want our officers or our Afghan military colleagues to be at risk. Our officers were authorized to defend themselves against harm.”
“So, Sir, did you direct that Mr. Bennett and his team ‘apprehend’ the suspected terrorists on the night of the raid?”
“No. Mr. Bennett’s job was to advise the Afghan unit. The Afghans were to apprehend the suspected terrorists. Anytime there is a raid, the chance is there that the terrorists—or our men—will die. My preference is for the terrorists to be the ones who die.”
Gardner nodded and asked, “Sir, when you talked with Mr. Bennett on the telephone prior to the raid, how did you end the conversation?”
“Sir?”
“What did you tell the defendant, when you were signing off on the phone?”
“Bye?”
“Yes, thank you. What did you tell him before that?”
“I’m not sure. I’m pretty sure it would be sensitive.”
“Really? All of it? So you never told the defendant anything like, ‘happy hunting’ or anything like that?”
Smith said, “Objection, Your Honor.”
The judge responded, “Overruled. Please answer the question.”
“I may have said happy hunting or something like that.”
“Something like that?”
John’s face was turning red, and he glared at Gardner, “Christ, I don’t remember what I said! There was a war going on in that region, and lots of American and coalition soldiers were going down in ambushes and getting their parts blown off by IEDs. We needed to help the Afghans stop the terrorists before they could get any more of our guys! Of course we wanted to hunt down and stop the terrorists!”
“Thank you, Sir. So, am I correct in stating that part of your mission and that of Mr. Bennett and his team was to support the US military by stopping the terrorists before they could harm US servicemen?”
John paused and looked to the back of the room. He shifted his eyes back to Gardner and said slowly, “We were there to advise and help the Afghans in their fight against the terrorists. We were separate from DOD elements. I cannot provide any more information.”
“So, Sir, you just said a few moments ago that Mr. Bennett and his team wanted to stop the terrorists from harming US servicemen and coalition forces. Isn’t that supporting the US military?”
John stared past Scott to the back of the room and said, “I cannot provide any more information.”
“Thank you, Sir, I have no more questions for you at this time.”
Judge McNamara said, “Mr. Smith, do you have questions for the witness?”
Smith said, “Yes, thank you, Your Honor, just a few.”
Smith stood up and approached the witness. “Sir, in your job, you oversaw a number of units like Mr. Bennett’s, is that right?”
“Yes, that’s correct.”
“When those units participated in raids, did those raids frequently result in terrorists being killed?”
“Yes, the terrorists didn’t want to be taken into custody to be interrogated. That meant they often were willing to fight to the death.”
“And did the Afghan units your teams assisted or the SU teams themselves lose men—wounded or killed?”
“Unfortunately, yes.”
“So, Mr. Bennett, his team, and his Afghan unit colleagues knew that they would be risking their lives during the raid?”
“Yes.”
“And so they were authorized to defend themselves as best they could?”
“Yes.”
“And, Sir, in your professional opinion, would it be risky going into a dark room, even if wearing night vision goggles, to apprehend terrorists? Wouldn’t self-defense be authorized then?”
“Of course.”
Scott called, “Objection, Your Honor, the counselor is calling for speculation. The witness wasn’t there and doesn’t know the circumstances. I ask that the witness’s response be struck from the record.”
“I’ll allow it. Overruled.”
“Thank you, Your Honor. I have no more questions for the witness now.”
*
Maddie had been watching the jury as Scott interviewed his witnesses. All were Bennett’s supervisors or managers in his chain of command.
The jury seemed to hang on the words of the SU officers. Several nodded as John and the others talked about killing terrorists and their authorizations to use force—even deadly—in self-defense. A couple of the jurors, the llama guy and the teacher who had served in Iraq, occasionally raised their eyebrows during the testimonies. Maddie thought they appeared more skeptical than the other jurors about what the witnesses were saying. The llama guy’s mouth dropped open, and the former soldier shook his head when the witnesses claimed their information was too sensitive, preventing them from being able to respond to que
stions about whether Bennett and his team were supporting DOD. Maddie noticed that several of the jurors, particularly the retired florist and the young female accountant, were taking notes. Neither looked happy about what was being said. One of the retirees, the former landscape owner, was listening during John’s testimony, but seemed to fall asleep during the testimonies of Bennett’s other managers. The IT guy was turned toward the witnesses, but every few minutes his eyes darted toward the accountant. She was seated a couple of seats over from him on his left-hand side and didn’t seem to notice his glances as she focused on the witnesses and her notes.
Maddie also watched the defendant. He showed little expression as he listened to his managers speak, and his body movements—or lack of them—didn’t indicate any nervousness or concern about what his managers were saying.
Maddie glanced over her shoulder toward the back of the courtroom where all the managers had been looking from time to time during their testimonies. Just as she suspected, a group she knew to be SU lawyers was seated near the back. It was obvious to her, based upon the careful words Bennett’s managers and supervisors used to respond to the attorneys’ questions, that Bennett’s bosses had received coaching—apparently from the SU attorneys now seated in the back of the courtroom. Maddie also noticed that a couple of the SU attorneys were furiously scribbling notes. Maybe they were planning more coaching sessions.
At the rear of the courtroom on the opposite side of where the SU attorneys were seated and somewhat behind them, was Kate. Maddie almost missed her during her quick scan. Kate, too, was watching Bennett’s bosses carefully. Some of the guys were probably her managers, too. Kate looked calm, but she had dark circles under her eyes.
Maddie also noticed sitting near Kate, in the last row near the door, the foreign-looking man she’d seen outside the courtroom on Friday afternoon after the trial ended. He appeared to be watching the defendant intently. Maddie wanted to know who he was. She scribbled a note to herself on her legal pad to ask Rick to find out what he could.
- 40 -
Cohen, seated at the table in EDVA’s large conference room, was frowning at Scott and Maddie. “So, none of Bennett’s bosses will say anything about what Bennett’s orders were other than that he was to ‘advise and assist’ Afghan soldiers who were conducting counterterrorist operations?”
Scott replied, “Nope. When pressed, they all say anything more is sensitive.”
Cohen asked, “Is it worth going through procedures to try to get more?”
“I doubt it. There is just no way the SU attorneys are going to let any of Bennett’s managers say they authorized him to go out and kill, even if they did. They’d rather hang Bennett out to dry first. But I don’t think they will. Instead they’re stressing the self-defense against violent terrorists angle. And they’re trying to add to the jury’s uncertainty about whether Bennett knew he was raiding a school in which civilians were present.”
Maddie added, “Yes, and they’re saying that time was critical. Either the team raided the suspected terrorist rendezvous site on the night it did, with some information still uncertain, or the team risked the terrorists leaving the area before they could get them.”
Cohen leaned back and said, “So, the raid went ahead with limited intelligence, and the SU ended up with a bunch of dead schoolboys. Did anyone ever find the terrorists Bennett and his boys were supposed to be after?”
Maddie and Scott looked at each other. Scott said, “We don’t know. We didn’t ask.”
Cohen looked at them and said, “Well, okay. Ask. If the SU bosses can’t answer either, it may look to the jury like they didn’t really care…like, at the time, they were just trying to cover up a mistake…or that, now, they’re trying to clear an overzealous, callous officer.”
Scott nodded and said, “Besides trying to justify what Bennett did as self-defense, I think the SU attorneys are working to try to undermine our MEJA violation charge. If Bennett’s bosses won’t say that what he did was in support of DOD, we may be screwed, even if we can prove to the jury that Bennett shot those kids in cold blood.”
Cohen nodded. “Yup. Besides proving the defendant is guilty of crimes that violate US criminal laws, ya gotta prove to the jury that MEJA applies. In this case you can’t claim a violation of the Patriot Act—the alleged crime didn’t happen on a US base or such. Also, forget trying to use the War Crimes Act. It’s too politically charged.”
Scott shook his head and replied, “The difficult thing with trying to claim MEJA applies is that, with the SU being hardnosed about the restricted issues, we can’t bring out much in the courtroom about the defendant’s specific duties or the scope of what he did. And I fully expect the SU lawyers to try to have what Bennett’s team members said earlier in the trial dropped from the court records. They’ll claim it’s national security information and the team members weren’t authorized to reveal it.”
Cohen said, “So, where does that leave us? What else do you two have to cheer me up tonight?”
Maddie looked at Scott and raised her eyebrows. He nodded to her, and she reached into her file and pulled out Kate’s recording. She said, “We have this. I’d like to play it for you in a few minutes. First, though, I need to explain that it came from one of the targeters, Kate Gutzmann, who was serving in Kabul while Bennett’s team was in Khandahar. Gutzmann provided some of the targeting information Bennett’s team used.”
Sommers, who also was seated at the table and had been quietly taking notes, looked up and said, “Yes, I interviewed her. I had planned to call her to establish that, although she provided information to Bennett, it was insufficient to determine whether, on the night of the attack, the terrorists would be at what we now know to be a school.”
Maddie nodded in response to Sommers comment and explained for him and Cohen how she had met and talked briefly with Kate on Saturday afternoon. Maddie told them that Kate had agreed to come into the office on Sunday and that, when she did, Kate had then provided more information about her relationship with Bennett as well as the recording.
Maddie looked at her notes, described to Cohen and Sommers what Kate had told her and Scott, and then took out her machine and popped in the recording. “The message is pretty short. I’ll just let you listen and see what you think.” Maddie turned up the volume and pushed start.
Maddie looked at Cohen and Sommers and asked, “So, what do you think? Should we play it for the court? Understanding that it might not do any good, if we can’t prove MEJA applies? And knowing that Kate is worried that if we do play the message, it will, as she put it, ‘destroy her’?”
- 41 -
Simon glanced down at the latest contribution from the SU legal elves. He again had found a brown envelope, this time tucked into a copy of last month’s Sports Illustrated magazine, lying on the seat of his car. His car, which he had left locked and with the windows rolled up in the parking garage.
The note in the envelope instructed him to forget calling Bennett to the stand. Simon wondered if they believed he was stupid enough to do so—apparently so or they wouldn’t have left the note for him. The attorneys also had left him material on MEJA and an unsigned legal brief on why MEJA should not apply to the case.
Shit. Simon had already researched MEJA, talked with experts, and interviewed witnesses who were clear that what Bennett had been doing did support DOD’s mission. How could it not?
He’d read the elfin legal brief later. Perhaps the SU elves had magic on their side. They seemed determined to help him create the illusion that Bennett was defending himself against evil terrorists while engaged in a mission that had nothing to do with supporting US or coalition forces. Maybe the elves intended to help him conjure a new truth.
Simon rubbed his forehead. He had hit heavy traffic on his way out of Alexandria, missed his daughter’s game, and wasn’t sure his wife had left him anything besides cookies for dinner. Stuck at a traffic light, Simon fingered his cell phone and thought about calling Bennett to
tell him he would have him testify. After all, Bennett wanted to take the stand and tell the court what he’d done. Simon smiled. Maybe Bennett testifying would so annoy the SU legal elves that they’d stop “helping” him. But probably not. Simon thought the elves were most likely to retaliate and find new ways to torment him.
Simon shook his head, put down his phone, and stepped on the gas as the light changed. The complicated part was that, despite his irritation with the SU attorneys and their questionable practices, he just couldn’t do something that would harm his client. And Simon was convinced that having Bennett testify would be a disaster.
- 42 -
It was almost lunchtime when Kate slipped into the back of the courtroom. David Craddock, after receiving the recordings she’d sent him, had wanted to talk with her. He had met with Kate that morning at a Starbucks in the District near Dupont Circle rather than in the Senate offices. She hadn’t wanted to be seen with Craddock in his office, and she particularly didn’t want to go through the necessary security procedures—including recording her name and the time of her visit—to get into his building.
Getting from the District to the Alexandria courthouse, even using the Metro, had taken more time than Kate thought it would, and her meeting with Craddock had been long. He was interested in her perspective on how the trial was going. He also wanted to discuss the circumstances behind the recordings she had mailed him and the additional recordings she had provided him that morning. She’d given him the recording she’d made of her dinnertime conversation with Dark Heart at the Amphora last Friday evening. She hadn’t provided the Friday evening Amphora recording to Maddie and Scott. Kate wasn’t sure she wanted them to have that much information. Why should she trust the prosecutors yet? She didn’t entirely trust Craddock, and she’d been meeting with him for months.
When Kate had first gone to the Oversight Committee with her information about Dark Heart and the killings, Craddock had seemed professional, interested, and friendly. A former military officer in his early 50s, he was a staffer for the minority members of the Committee. Craddock had conveyed to Kate the sense that the Committee was concerned about what had happened and might do something. They had, but not what she’d expected.
