The translator sat next to Duar and spoke in low tones telling him everything that was being said. Duar watched Rat.
Rat stood reluctantly, took the photograph, and crossed over to the defense table. He looked at Duar, then at the photograph, back at Duar, and then at Stern.
“Have you had an opportunity to examine the defendant?”
“Yes.”
“You would agree that his eyes are much darker than the eyes of man in the photograph. Correct?”
“That appears to be the case.”
“You would also agree that it is impossible to change one’s eye color.”
“You can do wonders with contact lenses.”
Stern nodded. “Assuming there is no funny business with contact lenses here, you would agree that one cannot make one’s eyes lighter or darker.”
“Generally, yeah.”
“You would have to agree with me then, wouldn’t you, that the defendant’s eyes do not match the eyes of the man in the photograph.”
Rat felt cornered. The haunted feeling he had had since standing in the C-17 on the night of the raid had returned with a vengeance. “I would have to agree with that.”
Elizabeth was taking notes, trying to hide the panic she was starting to feel.
“It’s very possible, isn’t it, Lieutenant Rathman, that you captured the wrong man in Sudan?”
“Hard to say. He was there. He fled from the room. He fired at me when we tried to pull him out of a well. So if he isn’t Wahamed Duar, he sure acted like him.”
Stern nodded, completely unconcerned. “All you can really say is that those things were done by someone. Not necessarily my client.”
“No, he’s definitely the one who fired at us.”
“Did it not occur to you, Lieutenant Rathman, that perhaps there was someone else who was there who looked an awful lot like Wahamed Duar? That maybe that’s the entire reason he was there? So in case of attack or capture, he would be the one captured, not Duar?”
Rat was stunned. “No, it really didn’t.”
“Have you not heard stories about how Saddam Hussein had doubles, men who looked just like him who rode around in limos, slept in his palaces, appeared in public, even. Have you heard about that?”
“Yes.”
“Yet it didn’t occur to you that maybe Duar was doing the same thing, and you were the one who had been tricked?”
Rat didn’t answer. He didn’t know what to say.
“No further questions.”
* * *
Captain Bill Anderson, the commanding officer of the USS Ronald Reagan, reread the message as he stood on the bridge of the aircraft carrier. They had just completed a six-month cruise to the Mediterranean and were headed home. Gibraltar lay just behind them. It had been a good cruise. They had made it all the way through without losing a single person or airplane. But now this. This would cost them at least a week, maybe two.
The message was fairly clear: Intercept the course from Monrovia, Liberia, to Jacksonville, Florida, and find the M/V Monrovian Prince, a container ship that had sailed from Monrovia five days before, estimated speed eight knots, maximum possible speed as a fully loaded container ship expected to be twelve knots. Last known position based on a radio intercept was 6° 28’ North, 17° 17’ West. Expected terrorist activity. Use all possible means to locate the ship. Photographs and electronic signature on their way by back-channel message.
The captain called the navigator, Commander Rich Black, to the bridge. They checked the chart for their current position then asked the chief petty officer quartermaster to mark the last known location of the Monrovian Prince and draw the course to Jacksonville. He made two circles around the mark to represent how far the ship could have gone based on known speed and best possible speed. Anderson and the navigator, Commander Rich Black, studied the results.
Anderson said, “We should head toward the closest point to the States. We can continue to DR the ship’s position during our transit.” He looked up at Black. “Agree?”
“That sea lane has a lot of traffic. It won’t be easy to find one ship in there.”
“Shouldn’t be that tough. We’ll have photos. We’ll give them to all the aircrew. As soon as we get within five hundred miles we’ll get every airplane available to start looking. With a good electronic signature it shouldn’t be that tough.”
“True enough.”
“Give me a course.”
The navigator and the quartermaster took less than a minute, then handed him a small printout of the entire Atlantic which showed the projected course and time to reach the Prince’s most likely path.
Anderson looked at it and walked back to the center of the bridge. “OOD!”
“Yes, Captain?” the lieutenant replied.
“Set a new course of two-five-eight. Twenty-five knots.”
“New course two-five-eight, twenty-five knots, aye, sir.”
Black stood next to Captain Anderson. “What’s this about, anyway?”
Anderson handed him the message.
Black read it as he walked to the port side of the bridge and stood next to Anderson as he climbed into his captain’s chair. He looked around to make sure no one was listening. “Terrorist activity? On a container ship?”
Anderson nodded.
“Holy shit.”
* * *
On Monday morning in the courtroom on top of the Justice building everyone was quiet. Everyone, including the jury, was reacting to the look on Judge Wiggins’s face. A large vein that ran down the middle of his forehead was bulging. It went from his hairline to the bridge of his nose and one could almost count the pulse rate. His reading glasses were pushed up too far against his eyebrows again as he stared at Skyles. He looked at the clock once again—9:02—no Rat. Skyles had promised the judge that Rat would be back in time. Or at least that’s how the judge remembered it. Not only was Rat not there, he hadn’t called or left a message with Skyles or anyone else. Skyles had no idea where he was.
9:03. Still no Rat. The judge sat with his hands folded on the bench. He wasn’t going to say a word or do anything until Rat appeared or it was so obvious that he wasn’t coming that he could hold Rat in contempt, deem him to be in violation of his bail, and put him in jail.
Skyles tried to avoid eye contact with the judge.
Two more minutes passed, then suddenly there was a commotion in the back of the courtroom. Skyles could hear the rocker switches transmit the code to open the large metal door. Rat rushed in. Although not breathing hard, it was clear he had arrived in a hurry. He was in his khaki uniform and his face had a certain oiliness to it. He walked through the small gate in the wooden fence-like partition that separated the active courtroom from the gallery. The gate swung back and forth as Rat took his seat. He looked at the judge, who had transferred his death glare from Skyles to Rat. Rat stared right back at him.
The judge spoke. “Mr. Rathman. Explain your tardiness.”
“I was on the Belleau Wood off South Africa. I took a helicopter to Cape Town and caught a commercial flight. The airplane had engine problems and we were diverted to the Ivory Coast, where we sat for twelve hours waiting for a replacement aircraft. I just arrived, as you can probably tell.”
Judge Wiggins didn’t care what the reason was. “Do I have to remind you of what I told your attorney on Friday?”
Rat hated it when people rode their authority farther than it was meant to carry them. It was common in the military—officers promoted one or two steps beyond where they were competent or who used newly found authority to puff up their opinions of themselves at the expense of others.
“No, I don’t believe so.” Rat turned to Skyles and whispered, “What’s he so pissed about?”
Skyles shook his head. Not now.
Wiggins was visibly unhappy with Rat. He spoke with a restrained anger. “If you are late again, I’ll find you in contempt of court. Do you understand that?”
“Yes.”
Th
e judge turned his head toward Wolff, who had been enjoying the show. “Call your next witness.”
Wolff knew how to take the glare off Rat’s face. “The United States calls Mr. Don Jacobs.”
The bailiff opened the door and called for Jacobs, who walked in wearing a dark suit. Rat had never seen him in a suit. He had never even seen him in wool pants. He always wore cotton, and his clothes always were disheveled. Jacobs saw Rat looking at him. He tried not to show any particular identification with him or even recognition. Jacobs walked to the witness box and stood outside to take the oath. He was sworn in and adjusted the microphone in front of his mouth as he gave his name. He thought it was silly to have a microphone in a courtroom as cramped as the one in which he found himself. He had not been enthusiastic about testifying.
Christopher Vithoulkas, the general counsel for the CIA, entered the courtroom and sat in the seat that had been roped off for him in the front row. He was there to create a fuss if information that was classified and otherwise not admissible under the Classified Information Protection Act was offered. He was the one who had ensured the passageway and elevators were cleared before his client was called to testify. He had expressed grave concerns in the special hearing at eight that morning about questions that might be posed to Don Jacobs. Judge Wiggins was sympathetic and agreed to minimally intrusive arrangements.
“Good morning, Mr. Jacobs,” Wolff said.
“Morning.”
“Would you tell us what your current position is?”
“Head of Counterterrorism for the Agency.”
“What agency is that?”
Jacobs looked at him, annoyed. “The Central Intelligence Agency.”
“To whom do you report? Who is your boss?”
“Mr. Stewart Woods. The Director of the Central Intelligence Agency.”
“You understand why Mr. Rathman is on trial, do you not?”
“Of course.”
“This charge, this accusation, arose out of an operation in Sudan. You understand that?”
“Yes. When Wahamed Duar was captured.”
“Yes, exactly. Lieutenant Rathman, the defendant, was working for you during that operation. Right?”
“He was leading a team that was part of a bigger operation to capture Wahamed Duar.”
“Even though he is on active duty with the Navy he is currently on temporary assignment to the CIA, to a Special Operations unit called the SAS. Correct?”
Jacobs looked at Vithoulkas, who nodded. “Yes, basically.”
“Mr. Jacobs, the CIA does not endorse torture, does it?”
Jacobs hesitated. Wolff was using him to corner Rat, to block any attempt by Skyles to claim that he had just been doing what he was told. Not effective legally, it was called the Nuremberg defense after the Nazis on trial for war crimes who said, “I was just following orders”; but juries were known to make decisions without the law sometimes. “That’s generally true. But it depends on how you define torture.”
“How do you define torture, Mr. Jacobs? Tell me what is prohibited by the CIA.”
Jacobs chose his words carefully. “It would certainly include electrocuting somebody, or pulling out their fingernails, severe beatings with blackjacks, those sorts of things.”
“If someone from your shop tortured a man in the field by use of the technique called the water board, that would be prohibited under the CIA regulations today. Correct?”
Skyles wasn’t about to let this go by unmolested. “Your Honor, once again, the CIA is not on trial, and Mr. Rathman is not on trial for having violated some unspecified CIA regulation. What the CIA expects or doesn’t expect is completely irrelevant.”
Before the judge could respond Wolff went to his own defense. “Your Honor, we do not know what defense will be taken by the accused. His attorney waived his opening statement, so we must anticipate to some degree his excuses for torturing this man. We don’t want to leave it as a possibility that he was only ‘following orders,’ or was operating within some unwritten CIA expectation.”
“You may continue.”
“How do you define torture?” Wolff asked.
“Didn’t we just go through that?” Jacobs asked.
“Somewhat. Anything you want to add to that definition?”
“Not really. Let me ask you, is sleep deprivation torture?”
“Yes, it is.”
“Is aggressive questioning or screaming at the person torture? Is threatening him?”
Wolff didn’t usually let witnesses ask him questions, but he wanted to give Jacobs a little room. “Threatening is. The prohibition against torture in international law is against physical and moral coercion. It is so defined in the Geneva Convention. Did you know that?”
“Civilians aren’t bound by the Geneva Convention,” Jacobs said.
“They’re bound by the treaty the United States ratified in 1994, the Convention Against Torture, which has the same definition, right?”
“The CIA and the United States are against torture,” Jacobs said.
Wolff held his smile. “You are familiar with the water board. Right?”
“Sort of,” Jacobs replied.
“The water board is not endorsed by the CIA—it cannot be used by its operatives today. Right?”
“I would assume that to be the case, but I’ve never seen the water board used. Don’t really know how it works.”
“You’ve worked with Lieutenant Rathman for some time now. Right?”
“Yes.”
“You know he is inclined to torture people. Right?”
“What?” Jacobs asked, annoyed.
“You remember the attempt by some Algerians to shoot down the Blue Angels at the Paris Air Show?”
“Of course.”
“Mr. Rathman was instrumental in stopping that attempt, or at least trying to stop it. Wasn’t he?”
“Yes, he was. He did a fantastic job.”
Wolff glanced up at Jacobs, clearly showing his disagreement. “He had located a few of the men involved in the attempt before it occurred, right?”
“Yes. He was brilliant. He found them before the attempt.”
“Well, the way he found most of them was by torturing one particular man. He cut through his nose with a very sharp knife he is known to carry, then cut the man’s chest into ribbons—”
Skyles erupted, “Objection!” He considered his options and struggled for some basis for an objection. He just had to interrupt to stop Wolff, to break his rhythm. Anything. He’d come up with the reason later. “Your Honor, based on this inappropriate questioning I move for a mistrial. The prosecutor has knowingly solicited character evidence which is irrelevant and prejudicial in this criminal case. I am stunned that the government felt a need to stoop to such a low tactic, but since their case is so thin, I guess—”
“Your Honor,” Wolff replied, “the case of United States vs. Craight addresses this issue. It holds that this kind of evidence is admissible to show a propensity to do certain distinct acts, certain things that show an inclination. Like an inclination not to wear a seat belt, or an inclination to smoke.”
“Not when that’s the charge at issue,” Skyles protested. “It’s like asking for testimony that someone charged with speeding had sped before. It’s irrelevant and prejudicial.”
“Usually yes,” Wolff agreed. “But if he had an inclination to drive with a brick on the gas pedal for some reason, it would be admissible.”
“Overruled. You may continue.”
“Thank you, Your Honor,” Wolff said. “You were aware of what he did to that Frenchman of Arabic descent, were you not?”
“I was aware something happened in Paris. I wasn’t there.”
“In fact once that operation was completed the French filed a formal protest at the way Mr. Rathman assaulted and tortured that man. Isn’t that right?”
“They made their opinion known.”
“They filed an official protest in writing. True?”
&nb
sp; “Yes.”
“So in spite of being aware of Mr. Rathman’s propensity to torture people to gather information from them when he, and only he, believes it is necessary, you sent him out on additional operations. Right?”
“Absolutely. I have complete faith in Mr. Rathman.”
“And you sent him out again because he is effective. Perhaps the most effective counterterrorist operative in the United States Government. Right?”
“I’ve never known him to fail and have never heard of him failing in any other operation.”
“You do not assert that the end justifies the means, do you? That if torture is effective and helps you catch a terrorist, that’s okay?”
“No. I would not say that.”
Wolff paused and folded his arms in front of him. He waited until all the jurors looked up, to make sure they were now paying attention. “If in fact Mr. Rathman was involved in torturing the man from Sudan who died, then he would have been operating outside of the direction he received from the CIA. Is that right?”
Jacobs wanted to help Rathman, but he couldn’t say torture was within the direction of the Agency. “That’s correct.”
“No further questions.”
Skyles stood and looked down at the floor for a long quiet moment. “Mr. Jacobs, do you deny that the CIA has been involved in torture in the past?”
“I have no personal knowledge of anything like that.”
“Are you not aware of the CIA handbook of 1983?”
Jacobs wasn’t biting. “What handbook is that?”
Skyles pulled a copy of it out of his briefcase. He crossed to Jacobs, asking the judge as he did, “May I approach?”
The judge nodded.
“This handbook. Dated 1983, and titled,” he read the front page, “The Human Resource Exploitation Training Manual 1983.” He handed it to Jacobs. “It not only discusses torture but describes methods. Right?”
“That manual was banned by Director Perry in 1996.”
“So there aren’t any copies anywhere in Langley.” Pause. “Right?”
Jacobs almost smiled. “I wouldn’t think so.”
“But you don’t know, do you?”
“Not really. I don’t know. I’ve never seen it.”
Secret Justice Page 32
