In a deceptively thick and plodding way, as if discovering at every moment something surprising that he had not known, Frearson convinced the court to hear the history of Athena’s deployment, from the Suez forward. Beck objected strenuously on the grounds of relevance, but Frearson was able to cite precedents going as far back as when, in English admiralty law, they were enshrined with quills. Though these had little standing, he won nonetheless by referring to American law case-by-case, and the need to establish context. At first skeptical, the court surrendered to the thirty precedents Frearson cited in an astounding chant, without the use of notes, delivered completely deadpan to emphasize that the immense and obvious weight of his argument needed neither passion nor technique. Not all his citations presented convincing parallels, but collectively they were overwhelming.
What followed in the next three days was a masterful retelling of Athena’s vivid history. Frearson paced like a bear as he spoke, his tone and timing almost—Rensselaer thought—Homeric. Though no one knew it and yet everyone was magnetized by it, he spoke in meter half the time, and it was as if high above the lights in the helicopter hangar, waves were breaking and guns were firing in the darkness.
It was just a sea story, but as he told it the reporters forgot to write, Beck forgot to object, the judge forgot to interject, and the admirals were still, their breathing shallow, the images that Frearson recalled awakening in their own memories the stock of lifetimes and the indelible sense of the sea.
Beck had nothing to say about Athena’s first battles, but after Frearson moved the story far enough along so that in the imaginations of all present the white mass of l’Étoile Océanique rose above the flat sea and at dusk its lights sparkled with what Frearson called “French allure,” the judge announced a recess, and a re-energized Beck leaned toward his assistant and, looking daggers at Frearson, whispered, “Story time’s over, bitch. Now comes the law.”
*
When they resumed, Beck said, “The prosecution calls Lieutenant Michael Velez.”
Velez had been twenty feet from Rensselaer at Chesapeake for months, and neither had known of the other’s presence. When, uncovered and on his way to the stand Velez passed his captain, he saluted anyway.
“Lieutenant Velez . . .” Beck said.
“Sir.”
“You were the communications officer on Athena, is that correct?”
“Yes sir.”
“How long did you serve on Athena?”
“From the time she was commissioned until we were relieved at Lemonnier.”
“That’s Camp Lemonnier in Djibouti?”
“Yes, sir.”
“In that time, were you the sole person in COMMS?”
“No, sir. I was training Seaman Ivoire, the best man on Athena. We all thought so.”
“And what happened to Seaman Ivoire?”
“He was killed when we tried to retrieve hostages from l’Étoile. I went in his place in the whaleboat to make the exchange, because I didn’t want him to take the risk. But an RPG hit COMMS. It should have been me.”
“This was as Athena was engaging l’Étoile?”
“Objection,” Frearson said. “Trial Counsel has made a statement in the form of a question to lead the witness.”
“Sustained.”
Rensselaer touched Frearson’s arm, and whispered, “Let him. Velez won’t be led. Watch. You’ll see.”
Beck stepped back and then rocked forward. “I’ll rephrase. Mr. Velez, was Seaman Ivoire killed while Athena was engaging l’Étoile?”
“No, sir. Athena never engaged l’Étoile, never fired a shot, never came alongside.”
“Well then who killed Ivoire?”
“Hadawi’s men, who had hijacked l’Étoile, and left it in their boats.”
“Yes, we’ve heard about that. Let me ask you this, Lieutenant. If Athena’s crew took to its RHIB and its whaleboat and assaulted, in their boats, the crew of a nearby ship, wouldn’t you say that Athena had attacked the ship?”
“Maybe. But I would not say that the ship had attacked Athena. Right? And Hadawi’s men were not l’Étoile’s crew. When they were back in their boats and on the sea they were ISIS pirates. They fired at us first. We weren’t any more engaged with l’Étoile than we were with the Mayflower.”
The spectators laughed, and the admirals—most of them—smiled. Beck was not happy with this. “In your view, Lieutenant, is firing upon a ship’s boats not engaging that ship?”
“They weren’t l’Étoile’s boats, sir, any more than Athena, by virtue of floating on the same patch of sea, was l’Étoile’s boat. They were Hadawi’s boats, from Ras Hagar.”
The judge interjected, “Trial Counsel will refrain from arguing with the witness over what may or may not be definitions of law. Please confine your questions to what the witness may have seen, heard, read, et cetera. He is a witness, after all.”
“Gladly, Your Honor. Mr. Velez, are you familiar with the following message, date-stamped and received by you aboard Athena? I’ll read it. It’s marked Exhibit Four A. ‘Track commandeered ship until arrival of French forces. Manifests show no American citizens on board. Assist French command if requested only. Take no action independent of task force arriving four plus days. Restore communications through regular channels only.’”
“No.”
“No?”
“No, sir.”
“Did you receive this message? Let me put it this way. Until you took Ivoire’s place in the boat, who received classified messages?”
“I did.”
“Was he not cleared?”
“He was, but he wasn’t quite ready, cryptologically.”
“What do you mean by that, exactly?”
“I mean, he could do it, but it was like teaching someone to drive. You start on quiet streets, but when it’s time to go home on the freeway, the instructor takes over.”
“Fair enough. Would you, then, be the only person to decode this kind of message?”
“Yes.”
“So you received the message?”
“Objection.”
“Sustained.”
“Is it likely you yourself received the message?”
“I’m sure I did.”
“Why are you not familiar with it?”
“I didn’t read it.”
“Don’t you read to make sure it’s properly decrypted?”
“We do.”
“Why didn’t you read it, then?”
“I was ordered not to read it, and all the encrypted messages received from that one on. And then we completely lost COMMS.”
“Who ordered you?”
“Captain Rensselaer.”
“Why?”
“I didn’t ask.”
“Was this order irregular?”
“In my opinion?”
“In your opinion.”
“Yes.”
“Why didn’t you ask about it?”
“If an order doesn’t appear illegal or dangerous, we don’t do that, you know. It’s the Navy.”
“I see. Immediately after that order, that is, Four A, you did send this one, Exhibit Four B, did you not? Please read it.”
Velez read, “‘Repeat. Hostages to be executed every hour. French task force will arrive too late. Request permission to engage should opportunity arise.’”
“Do you remember that one?”
“Yes. I sent it.”
“What about this one, Exhibit Four C? ‘Request denied.’ From the CNO himself.”
Velez shook his head.
“Please speak your reply.”
“No. I was unaware of that one.”
“Why?”
“The same reason. I was ordered not to read it.”
“Did you deliver it to Captain Rensselaer?”
“I did. That one came immediately and it was short. I assume that was it.” Frearson made no objection to the assumption.
Beck continued. “Please read the reply, Exhibit Four D, which you yourself sent.”
Velez was beginning to get angry, and his annoyance, that of someone who is pushed and trapped, was discernible. “‘Is USS Athena, American ship of war, commanded to ignore its obligation to aid mariners in distress? By what authority if so? Clarify.’”
“Please read this message in response, which you received but, as you say, were ordered not to read. Exhibit Four E.”
“‘Await further clarification.’”
“And, finally, Lieutenant Velez, the last message Athena received before its communications were destroyed, this one, Exhibit F, received by you and—if we are to rely on your previous testimony—not read, according to Captain Rensselaer’s standing order. Is that correct?”
“Yes, sir.”
“Did you see him read it?”
“Yes, sir.”
“Did he hand it back to you?”
“No, sir.”
“What did he do with it?”
“He folded it and put it in his pocket.”
“Was that what he did with the other messages he ordered you not to read?”
“It was.”
“Please read it.”
“‘Per direct presidential order, await French forces. Athena is expressly forbidden to fire upon or board l’Étoile. Detailed clarification forthcoming pending decision of National Security Council meeting. Stand by.’”
“Would you read again the first two sentences?”
“‘Per direct presidential order, await French forces. Athena is expressly forbidden to fire upon or board l’Étoile.’”
“No further questions.”
The judge looked at Frearson, who seemed bored. “Counsel for the Defense?”
“No questions, Your Honor.”
Unable to hide his excitement, Beck stood. “Your Honor, the prosecution would like to call Captain Rensselaer.”
*
For as long as he could after Rensselaer took the stand, Beck paced back and forth in front of him. Somehow, successfully delivered in his expression and posture, was his assertion that Rensselaer was pathetic, repellent, and dangerous. A prosecutor about to examine the devil might have moved and looked the same way.
“Captain Rensselaer, do you need to have Lieutenant Velez’s testimony and exchange with counsel read to refresh your memory?”
“No. I just heard it.”
“Is what Lieutenant Velez stated correct?”
“As far as my involvement, yes.”
“Why did you order him to take the uncharacteristic measure of not reading incoming messages after Athena had closed on l’Étoile? And are you sure he didn’t?”
“If I may answer the last question first?”
“You may.”
“Once the messages are decrypted they’re spit out of the machine. You can grab them without looking. I can’t be a hundred percent sure, but I’m as sure as I can be.”
“Why?”
“Velez has great integrity. Look what he did in trying to protect his shipmate from danger. We had an excellent relationship. I believed him, and he seemed confused by what was going on, which you would expect if he hadn’t read the incoming traffic.
“As for the first question . . .” Rensselaer glanced at Frearson, who almost imperceptibly signaled his consent. “I wanted to protect the crew.”
“From what?”
“This.”
“Are you saying that you foresaw these proceedings?”
“I foresaw the possibility.”
“Why?”
“A conflict was arising between what I was ordered to do and what I was obliged to do.”
“Obliged? Obliged by what?”
“By the laws of war, conscience . . . decency.”
“Did you believe that the laws of war, conscience, and decency gave you freedom to disobey a direct order from the appropriate command authorities, and the commander in chief himself?”
“As you know, my plea is not guilty.”
“To preface my next questions, I’ll read from the messages you were careful to instruct Lieutenant Velez not to read, to protect him from . . . this. ‘Assist French command if requested only. Take no action independent of task force arriving four plus days.’ Do you remember that one?”
“Yes.”
“‘Await French forces.’ Do you remember that one?”
“I do.”
“‘Per direct presidential order, Athena is expressly forbidden.’” He paused and emphasized. “‘Expressly forbidden . . .’” he paused again, “‘. . . to fire upon or board l’Étoile.’ Remember that?”
“Yes.”
“And this? ‘Stand by.’”
“Yes.”
“So now I will ask you, did you at any time assist the French command?”
“No.”
“How far into the Horn of Africa, without any order whatsoever, did you travel to engage in combat with land forces?”
“Almost certainly more than a hundred miles. The trucks were primitive, and had no odometers. It can be calculated exactly, if one were to locate the village where the battle took place.”
“More than one hundred miles over the desert?”
“I don’t know if it was technically desert. It was dry and bare.”
“How many villages did you attack?”
“Well, if I may garble Paul Revere, one if by land, one if by sea.”
“Is Somalia a sovereign nation?”
“It’s a failed state.”
“I didn’t ask that. Please answer the question. Is it a sovereign nation?”
“As far as I know.”
“Are we at war with it?”
“No.”
“Did you make war, in Somalia, deep in its interior?”
“Yes.”
“Did you have orders to do so?”
“I did not.”
“Did you have orders not to take action, to stand by, to await the arrival of the French task force?”
“I did.”
“As you stated before, did you keep your crew ignorant of the orders you did have, to protect them from ‘this.’ That is, a court-martial?”
“Rensselaer took in a long breath. “Yes.”
“No further questions.”