“SO—YOU HAVE TO REMEMBER THAT an Article 32 hearing is not a general court-martial. It is simply an investigation conducted by an investigating officer—an IO—who investigates the charges to determine if they are in proper form, if there is sufficient evidence to support them, if there are additional potential charges—and finally, he makes a recommendation as to disposition. Those findings and recommendations are then forwarded to the convening authority—in this case, the base commanding general—who then makes the decision on whether or not to make a referral to a general court-martial.”
Will Chambers nodded to Major Hanover, who, with Caleb Marlowe beside him, continued laying out the legal geography.
“And because this is only a preliminary investigation to determine whether the matter should be referred to the general for a general court-martial, we have to face the question of whether or not Colonel Marlowe should testify in his own behalf. He cannot be compelled to do so. That’s a decision we have to make.”
Will nodded again and then chimed in, addressing Marlowe.
“Colonel, Major Hanover and I have discussed this. We both feel, at least at this point, that you have nothing to gain—and everything to lose—by testifying at the Article 32 hearing. If this goes to a court-martial, you could present your defense through your own testimony at that time. We’re hoping we can get these charges dropped before then.”
“One thing bothers me with your recommendation,” Marlowe responded, “about my not testifying at the Article 32.”
“What’s that?” Will asked.
“I’m the only person on this planet…the only one that went into that house and saw Carlos, and his wife, Linda, and his two little children. I’m also the only one who talked to Carlos the day before the assault, when he told me that safe house was where the AAJ would be hiding. That makes my testimony absolutely critical. And if that’s the case, then maybe I should testify.”
Hanover and Will both shook their heads simultaneously.
“Colonel, I don’t think so,” Will said. “Although we’re trying to get dismissal of these charges, we also want to get discovery of the trial counsel’s case. Beyond that, we don’t want to tip our hand before the court-martial case about the theory of our defense.”
“Well, if we don’t get my side of the story through my testimony at the Article 32,” Marlowe said, “then how is the general going to rule in our favor and keep this case from being referred to a court-martial?”
“Sir, what the Colonel has to understand,” Hanover explained, “is that the general has a little discretion in deciding whether or not this matter should be referred. He looks at the evidence, he looks at the extenuating circumstances, he looks at the appropriateness of the charges—the whole context—in making that determination. Mr. Chambers here and I both believe we can do a fairly good job of presenting your defense without locking you in by testifying.”
Marlowe nodded. But he had a look on his face that indicated that he was deferring—reluctantly—to the advice of his two legal counsel.
Will leaned forward and picked up on something that the colonel had said.
“But your comments do raise a question. And that is, what you really did see that night.”
The lawyer turned to Major Hanover.
“What is the status on that gag order based on national security? Has DOD waived its prior restriction on us discussing all of those matters with Colonel Marlowe?”
“Not entirely,” Hanover answered. “I received a message today from DOD indicating we are free to discuss the occurrence at Chacmool, but nothing that preceded it—and absolutely nothing about the military designation of Colonel Marlowe’s team—or the chain of command that led, ultimately, to the colonel’s order to open fire on the house.”
After only a moment of reflection, it became very clear to Will what the parameters were regarding his ability to get information from his client. And it was equally obvious where he needed to start first.
“All right, Colonel—this is it,” Will began. “Start from the point where you and your team were getting into position at Chacmool. Start there.”
There were a pitcher of water and a few cups on the table in the defense conference room. Marlowe took the pitcher and filled one of the styrofoam cups halfway.
He said nothing, but took a few gulps from the cup and then set it down. After looking into Will’s face he turned and studied Major Hanover, but still said nothing.
Then he turned to look at Will again. But now the marine tilted his head just slightly as he did. As if he were a time traveler who was about to explain some ancient and horrible event, one that his attorneys would never fully grasp. Colonel Marlowe was about to unveil a bloody enigma of sacrifice and death.