crimes to put you on the biggest, most important Army case in three or four decades.”
Now this was the point where we could have launched into one of those libertarian debates that lawyers just love, about how unjust I’d been, about how the rights of one man were every bit as insistent as the needs of the Army. But what would be the point? She might score a nice philosophical victory, but it wasn’t like she could climb off this plane and return to her client’s side. Besides, I had just confirmed what she and Delbert had previously only suspected, and that’s a little like getting hit by a bus. Took the air right out of her lungs.
The two-star general in charge of the Army’s JAG Corps had told me I could have as many of the Army’s top lawyers to serve on my investigating board as my heart desired. Being one myself, I know that the more lawyers you gather under one roof, the more the situation gets to be like a barroom donnybrook. The rate of progress is nearly always commensurate to the scarcity of lawyers. I therefore informed him that I only wanted two lawyers: one prosecutor and one defender.
I decided that because there are two ways to look at any case: from the standpoint of guilt, and from the standpoint of innocence. One, obviously, is through the eyes of the prosecutor who must gather the facts, then persuade a board of officers and soldiers that the man at the defense table is not only richly guilty, but deserves to be hung from the highest yardarm. Then there’s the defense side, which understands that American law, even military law, is, at its core, highly procedural: that the rights of the accused always outweigh the needs of justice. Any good defense attorney pays as much attention to the way the culprit was caught, and how the catchers did their job, as to the facts of the case itself.
Prosecutors are the spoiled stepchildren of the law. They get to decide which cases they’ll try: If the facts don’t favor them, or they detect any infringements on the rights of the accused, they simply take a pass. Defense attorneys are eternally cursed. They get appointed only after a prosecutor has decided there’s at least a 99 percent chance of a conviction. There are plenty of prosecutors who win almost all the time. There is only a small handful of defense attorneys who win even half the time.
Lisa Morrow was the exception. After eight years as a defense attorney, she had won 69 percent of her cases. She’d defended murderers, rapists, thieves, child molesters, and about every other assortment of bad guy imaginable. But, she had never defended anyone accused of violating a rule of the Geneva Convention. For that matter, neither had I. For that matter, neither had anyone; at least anyone who was still wearing a uniform.
James Delbert had a 97 percent conviction rate and even by the lopsided nature of the way the law is stacked in his favor, that’s pretty damned striking. Even the best prosecutors sometimes get tripped up by things beyond their control, such as witnesses who fall apart on the stand or aren’t terribly convincing, or a court-martial board that just acts in wild-assed ways that are contrary to all logic. Even the most brilliant prosecutor is still going to occasionally lose.
Before this moment, I had never met either of them. They were handpicked because I told Major General Clapper that I didn’t want just any couple of attorneys. I wanted the prosecutor and defense counsel with the best win-loss records in the Army. He picked them, then gave me copies of their military files. And I must admit that I spent considerably more time with my nose stuffed inside Morrow’s packet than Delbert’s. There was this great picture of her in there, standing stiffly at attention in her dress greens, and that picture offered my only hope that this investigation might have a few good angles. Or curves. Or whatever.
Nor did it take more than a quick glance to see why so many juries and boards had fallen under her sway. I don’t know that I’d describe her as beautiful, although she certainly was that. She just had the most sympathetic eyes I ever saw, which as I mentioned before is not a real popular emotion in the Army, unless, that is, it happens to be pasted on a gorgeous female face. Then exceptions get made.
Delbert, on the other hand, looked every bit the soldier. Trim, fit, handsome, with straight, dark hair that sat perfectly in place without a single stray strand. He had one of those razor-sharp faces, and eyes that looked ready to pounce. I could see where a jury or a board would look at him and think only of their duty.
I would have liked to have talked with them, but the thing about riding in the rear of a C-130 is that once the engines kick in, the racket gets simply awful. Unlike civilian airliners that are packed with sound insulation, the Air Force saves money on all that crap by simply requiring its passengers to wear earplugs the whole trip. Pretty slick, if you ask me: Even if it is brought to you by the same fellas who are known for buying three-hundred-dollar hammers and five-thousand-dollar toilets. But like I said earlier, what’s important inside the military machine ain’t always the same as what’s important on the outside.
The thing about a transatlantic plane ride is that it gives you plenty of time to read and digest. And while I had assured General Partridge that I’d already familiarized myself with the particulars of this case, the truth is that in the past two days, between meetings with lots of very important Army officials, a meeting with a very antsy aide from the personal staff of the President of the United States, and assorted others, I barely had time to breathe.
I knew little more than had been described to me by these Washington people, and the interesting thing about that was that all of them seemed to be convinced these nine men had done nothing wrong. Nobody had said that outright, because that would’ve infringed on the code of neutrality the law demands in these things. But I’m a careful listener; I can sniff a subtlety or a nuance from ten miles away. If I was the more suspicious sort, I might even believe that all those powerful people in Washington knew something I didn’t. And I do happen to be the more suspicious sort.
My legal case was stuffed with a number of news articles, a few preliminary statements given by the accused, and a long-winded statement written by a Lieutenant Colonel Will Smothers, who was the direct commander of the accused.
I dug into them, and the facts were these. A Special Forces A-team comprising nine men from the Tenth Special Forces Group had been assigned to train a group of Kosovar Albanians who had been driven from their homeland by the Serbian militia. It was part of the effort to build up the Kosovar Liberation Army, or KLA. They spent seven or eight weeks training their recruits, then were given secret orders to accompany the unit they trained back into Kosovo.
A week later, the Kosovar unit attempted a raid on a village and all of them were killed. The A-team, against orders-make that supposedly against orders-took it on their own to seek vengeance, or justice, or something. They set an ambush on a well-known Serbian supply route and unleashed blistering fury on a Serb column containing thirty-five men.
The next Serb column to come down that route discovered their slaughtered brethren, found lots of expended American munitions and several pieces of discarded American equipment, informed their superiors, and, after several very dramatic press conferences, the international media became persuaded that some American troops must’ve done a terrifically bad thing.
The Army put two and two together and arrested the entire A-team, who were currently being held in detention at an air base in Italy.
Now here’s where the case gets both real interesting and real mawkish. The United States and NATO were bombing the hell out of the Serbs in a desperate attempt to coerce them into changing their stance toward Kosovo. As much as this sounded like war, and I’d bet it sure as hell felt like war, at least to the folks being bombed, the legal nicety of a state of war had not been declared. The rules of the Geneva Convention are written to cover a state of war, so exactly what laws were supposed to govern the behavior of these soldiers? Some lawyers love those kinds of questions. Others loathe them. I, for instance, fall squarely into the loathing category. I happen to be pretty simpleminded. Black and white are my favorite colors. Gray just doesn’t suit my mental complexion.
The second thing was that there were no survivors from that Serb column. Thirty-five men and not one survivor. Now those who know a little about land warfare know that for every man who gets killed in battle, there nearly always are one or two who get wounded. Believe it or not, there are people who actually study and compute these grisly things, and that’s how it comes out. There was a very nasty implication here.
Finally, the talk show pundits around the beltway were in high dudgeon. This was just the kind of incident that got them standing in long lines at TV studios, and they were trotting out all kinds of theories, from the frivolous to the absurd. The big question was what orders that A-team had been given. Every time the Pentagon spokesman got asked that question, or what limits were set on their behavior, he suddenly got deliciously vague and evasive, in the way all good spokesmen are trained to do. All he’d admit was that the name of the mission was Guardian Angel and that it was some kind of humanitarian thing. Jay Leno couldn’t resist that one. In one of his opening monologues, he awarded it the Most Regrettable Misnomer of the Year prize. The team had obviously not guarded their Kosovars real well, and it didn’t sound like the nine men in that A-team acted the least bit like angels.
