Trial commenced on the twelfth day of an atypically cold January. Spectators and press who had been kept waiting outside the hangar shivered for a long time even after they were seated. Usually at about the half-hour mark, one by one, they began to remove their coats. For the principals, who came directly from heated offices and conference rooms, it was different.
At first, preliminaries ruled, but then, on the fifteenth, even as the press thinned out to begin taking up position for the inauguration, Beck went on the attack. The lights were as hot and dazzling as a July afternoon.
“Your Honor,” Beck said, addressing the military judge, “the prosecution would like to enter into evidence Exhibit Eighteen, an official letter of reprimand dated June the eleventh, nineteen ninety-one—”
“Objection,” Frearson said firmly. “We’re not trying that incident, which, decades ago, never even became a case. I move that the exhibit be stricken from the record.” He knew very well that it would not be.
“Trial Counsel?” the judge asked.
“Your Honor, the prosecution recognizes that the subject we propose was never a case, and, not being a case, could not be tried then and cannot be tried now. It is, however, representative of a pattern of behavior enshrined in the record of the accused, which the prosecution will use to illustrate the accused’s frame of mind preceding and during the acts for which he does now stand trial. Further, as the author of the letter of reprimand is no longer living, the prosecution would like to give the accused the opportunity to take the stand to clarify or rebut its content.”
The judge said, “I’m prepared to sustain the objection, but I’d like to hear the reaction of defense counsel.”
Frearson answered as calmly as if ordering in a restaurant. His body didn’t tense, and he spoke to the judge without raising his head. “Defense withdraws the objection and my client will take the stand.”
Clearly, Frearson, who smiled tightly and turned away from the panel so no one would see, had planned this. Beck looked like his bird-thin face had been hit by a timber. He turned to the assistant trial counsel as if making an explanation, which was very much out of the ordinary in that he seldom shared anything with her other than the assignment of tasks. “Is he crazy,” he whispered rhetorically, “putting his client on the stand in a capital case?”
“Apparently he is,” she whispered, “or, if not, watch out.”
“I don’t get it. He may want to be transparent to appeal to public opinion, but this case will be tried according to law. I’m going to cut him to ribbons.”
Rensselaer rose, took the stand, identified himself, was sworn in, and watched Beck, a copy of the letter in hand, glide up to him as if on wheels. Beck was going to go through all the questioning to establish that the letter was the one at issue, when Frearson, without looking up from what—to Beck’s un-concealable astonishment—appeared to be a crossword puzzle, said, “The defense is willing to stipulate that the letter is authentic, and pertinent.”
Beck was a little unsettled, but he was used to the blows and fears of trying a case. Though Rensselaer, who had not been apprised of Frearson’s strategy, was more than unsettled, he summoned the calm of battle, a state in which the memory of having survived other combat deliberately arises to command that the senses function uninfluenced by fear.
“Captain Rensselaer, would you be so kind as to read the court the body of this letter of reprimand from your commanding officer in the Gulf War?”
Rensselaer took the document with his left hand while crossing his chest with his right to retrieve a pair of tortoise-shell reading glasses, faux, of course, to protect the turtles, but plastic, which endangers them. He looked considered and thoughtful as he put them on and distanced the letter to bring it into focus. “‘Eleven June, Nineteen—’”
“Please just read the body of the letter,” Beck asked.
“All right. ‘Lieutenant, J. G., Stephen Rensselaer and . . .’” He looked up. “Shall I say their names and ranks?”
“No. There were four of them, is that correct?”
“Yes.”
“Under your command.”
“Correct.”
“Continue.”
“‘. . . attached to elements of the Second Marine Reconnaissance Company,’ blah, blah, blah . . . ” This he said rather than completely cite the long unit name. “‘. . . were hunting for Iraqi Scud missiles in the Wadi Al-Hazami when their unit encountered a fortified Iraqi position on high ground, blocking their advance. During the subsequent assault, Lieutenant Rensselaer willfully disobeyed, and caused the SEALs under his command to disobey, a direct order from his Marine superior officer. His actions might have endangered his unit, and his conduct is unacceptable, for which he is herein reproved.’”
“Captain Rensselaer, what does reproved mean?”
“Scolded, corrected?”
“According to the dictionary, ‘to censure, condemn, reprimand, rebuke, blame, chide, and find fault.’”
“Okay.”
“How many times did you receive the direct order that you disobeyed?”
“I really don’t know. I would guess about three. The last one was as we were leaving, and the captain was screaming so hard I thought his head would explode. He was panicked.”
“According to you, he was panicked.”
“It was pretty clear.”
“Maybe he was angry because you were disobeying him in the middle of a firefight? Is that possible?”
“Objection, leading the witness,” Frearson said, somnolently. “Sustained.”
“I’ll rephrase. Is it possible that he was angry because you were disobeying him in the middle of a firefight?”
“Yes. It is possible.”
“How many times did he give you the order that you disobeyed?”
“Three, I think. I’ve said that.”
“What was it again?”
“Three.”
“Your witness.”
Frearson rose, slowly. Neither the spectators nor the admirals moved a muscle. No one could imagine what this slow-moving, bulky, ponderous man might do to reverse the impression they had of Rensselaer.
*
“Well,” Frearson said, followed by nothing but a long silence during which he looked around and scratched his left ear. Some people, including some of the admirals, briefly held their breath.
Frearson held up a document—two pages that his right hand had been holding against his thigh as if he had not meant to keep them with him when he rose. But he had. “Your Honor, this is the after-action report compiled by the staff of the Marine Reconnaissance Brigade of which the Second Reconnaissance Company was a component. I move to have it entered into the record after questioning my client.”
“Objection,” Beck called out. “Your Honor, we’re getting far afield here. This is not the case we’re trying.”
Frearson merely smiled, and said nothing.
Both cunningly and restrained, the judge asked, “Trial Counsel, have you not, with all your might, led us here?”
“Not with all my might, Your Honor.”
“I see. Objection overruled. You may continue, Counsel for the Defense.”
“Thank you, Your Honor,” Frearson said, this time hardly suppressing his smile. He approached the stand. “Now, Captain Rensselaer, here is the after-action report concerning the events that led to your reprimand.” He read the date, identified the office, the command, the numbers assigned to the document, and then held it up for Rensselaer to see. “Have you seen this before?”
“No. I have not. I was interviewed, but so was everyone else who survived. I never looked into it.”
“Why not?”
“The reprimand was correct. I disobeyed a direct order. I saw no need to challenge it.”
“Were any charges pressed?”
“No.”
“Were you reduced in rank?”
“No.”
“Was your pay docked?”
“No.”
“Was your next promotion on time?”
“It was. I became an SWO in nineteen ninety-three, and advanced in rank appropriately.”
“I will draw from a summary of your naval career subsequent to the letter of reprimand, and ask that you correct what you see fit. To the surface fleet in nineteen ninety-three as a full lieutenant. Five years later to Harvard for four years, exiting with a doctorate—your thesis being on nuclear strategy—and promotion to lieutenant commander. In two thousand three, the Iraq War, commanding a patrol coastal. In two thousand five, promotion to commander, assignment as executive officer of a DDG. In two thousand seven, staff duty under Admiral Johnson, Director of Strategic Programming. Two years later, command of a DDG. Another four years, promotion to captain, a year at the Naval War College. Two thousand sixteen, command of an amphibious ready group. Two thousand eighteen, staff duty, assistant to the SECNAV. Is this correct?”
“Yes.”
“Your Honor,” Beck interrupted. The prosecution is aware that Captain Rensselaer has had a long naval career. What is the point of this recitation, which leads us even farther afield?”
The judge nodded, turned to Frearson, and said, “Counselor?”
“To show, Your Honor, that the defendant’s distinguished career was not affected, as we might expect, by the otherwise serious charges in the letter of reprimand, as a preliminary to showing why this was so, which thus enlarges the scope of inquiry into the matter that the prosecution itself has brought up. With the court’s permission, I will ask my client to read the report. It’s not that much longer than the letter of reprimand, which it clarifies immensely.”
“All right, Counselor, go ahead, but we can’t spend too much more time on this.”
“Thank you, Your Honor.
“Captain Rensselaer, will you please read from the body of the report, as you did previously from the letter of reprimand?”
Again, Rensselaer made the cross-body movement to retrieve his reading glasses, and again he looked considered, and senior. He began.
“‘At zero four twenty, the four platoons of the Second split up to advance west toward known Scud firing positions scattered near the Wadi Al-Hazami. First Platoon, consisting of forty-two men and augmented by five Navy Special Warfare Operators, moved along the central track without incident. At zero eight hundred they observed the exhaust trail of a single rocket, and were able to hear it. Judging that it was approximately two miles ahead, they increased speed, but after a short distance found that their vehicles could no longer negotiate the trail, which had likely been eroded by recent rains.
“‘Dismounting, they double-timed ahead, straining under the weight of their weapons and equipment. A launch complex—as far as they knew, for only later did they discover that several launch complexes were grouped together—was behind a steeply rising escarpment at the top of a roughly thirty-degree, boulder-strewn ramp. The summit overlooked and dominated the wadi they had been following. At the crest, an Iraqi force was dug in, and immediately began to fire at them with light weapons and mortars. The Marine unit commander . . .’ Shall I say his name and rank?” Rensselaer asked the judge.
“Just the rank.”
“‘Captain——decided that in view of the importance of the objective, a frontal assault was justified. The commanding officer of the SEAL detachment, Lieutenant J. G. Stephen Rensselaer, proposed instead that he take his men back to the vehicles and drive north for a short distance to a passable track that led to a point behind the fortifications they faced. Captain——rejected this approach and ordered two squads to advance up the boulder slope. The first squad was able to move only fifty yards or so before it was exposed to withering fire from above. Three men were killed immediately, and two of the other three were wounded, one mortally. Against the advice of Lieutenant Rensselaer and the Marine noncommissioned officer, Gunnery Sergeant——, Captain——ordered the second squad forward. The second squad advanced reluctantly, its chief motive being to aid the wounded and pinned-down Marines. Reaching them, they began to bring them back when, observing their movements, Captain——ordered them to continue advancing up the slope.
“‘Second squad, equally pinned down, in attempting to carry out the order suffered one man killed and another wounded. Retreating to the relative safety of the spot where first squad had taken shelter, they informed Captain——that they couldn’t move forward. At this point, Captain——ordered squads three and four to move forward on the same line.
“‘Observing the high reluctance of these men to carry out the order, Lieutenant Rensselaer proposed once again his plan of envelopment. According to the testimony here appended, Captain——by this time had lost control of himself and was screaming, shaking, and at times incomprehensible. Lieutenant Rensselaer took it upon himself to order the Marines to hold until he had cleared the ridge. As he departed, Captain——directly ordered him a number of times not to leave.
“‘Lieutenant Rensselaer and his men returned to the vehicles, drove north in one of them, and discovered a navigable track that enabled them to round the escarpment, where they found themselves between the Iraqi blocking force and the launch complexes to the west. Leaving the vehicles where they could not be observed from either the missile sites or the blocking position, they made their way up the slope to the rear and on both flanks of the blocking force.
“‘After almost an hour of approach, they were in position to attack. Only one sentry had been placed behind the blocking force, and, foolishly, he was turned away from the Americans and toward the backs of his own men, and he was combing his hair. Lieutenant Rensselaer eliminated him in silence.
“‘At his signal, the SEALs opened fire from three directions. Though the Iraqis numbered more than a score of men, they were all facing east. The five SEALs laying down accurate automatic weapons fire killed nearly all of them before they could redirect their weapons. Two tried to escape, but, to prevent them from warning the missile sites, the SEALs killed them as well.
“‘With the way clear, half the Marine platoon advanced with the SEALs, while the other half moved the wounded and the dead to an evac zone. Captain——, at this point described as unable to command, was also airlifted out. He was relieved of his duties and at this writing his case is unresolved. The mission continued successfully, and is described in the after-action report immediately following for this sector, beginning at twelve-hundred on—’”
“You can stop there,” Frearson interrupted. The courtroom was silent. “Captain Rensselaer, how many men, and how many missions, did you save that day?”
Beck practically launched himself from his chair. “Objection! The witness is being asked to judge his own actions by volunteering a counterfactual speculation.”
“Sustained.”
“Redirect, Your Honor?” Beck asked.
“Keep it short. We have to get back to the case we’re supposed to be trying, and after this, we will.”
Frearson withdrew and Beck approached the accused. “Thank you, Your Honor,” he said. Then: “Captain Rensselaer, no one doubts your abilities. I certainly don’t. But let me ask you once again, did you receive a direct order that day?”
“Yes.”
“How many times?”
“Three.”
“Did you know that you would be able to eliminate the blocking force?”
“No.”
“Were you aware then, and are you aware now, that in the military one does not refuse a legal, direct order issued by a superior officer?”
“Yes.”
“And on that one day, how many times did you do that?”
“As I’ve said, three.”
“Excuse me, say again. I didn’t hear that clearly.”
“Three.”
“No more questions.”