“Captain Rensselaer,” Frearson said, once again with the slight fatigue of voice and stance that suggested he was unimpressed by the charges and thought he would have no difficulty refuting them, “I’d like to ask some questions about the orders you’re accused of disobeying, as expressed in the messages Trial Counsel has been discussing. First, were you ordered to ‘Take no action’?”
“Yes.”
“Were you also ordered to track and monitor l’Étoile?”
“Yes.”
“Is following a ship, surveilling it, and reporting intelligence in its regard, an action? Indeed, three actions?”
“Yes.”
“Captain, were you ordered simultaneously to take no action . . . and to take actions?”
“I was.”
“Which of those did you choose?”
“I chose the latter, to take action . . . actions.”
“Could you have been faithful to both orders?”
“No.”
“Now, you were also ordered to wait for the French task force. What did you do?”
“I waited for the French task force.”
“You did?”
“Yes. I didn’t resume my patrol. I didn’t leave the area. I was there—rather, Athena was there—when the French ships arrived.”
“Objection,” Beck called out, irritated. “This is all a matter of semantics that have no reasonable bearing upon the charges.”
To this, the judge responded, “Counselor, whether you like it or not, the law depends entirely upon, and would cease to exist without, words and their meaning. We learn this, if we do not already know it, in law school.” He turned to Frearson. “Counsel for the Defense may proceed.”
Frearson continued. “Not only were you ordered to await the French task force, you were ordered not to fire on l’Étoile, is that correct?”
“Yes.”
“Did you fire on l’Étoile? Or, rather, did Athena?”
“No. I did not. Not a single shot. Once l’Étoile was beached, wrecked, on fire, and exploding, Commander Holworthy took out terrorists who were about to shoot escaping hostages, but l’Étoile was by that time scrap on land. And Athena herself never fired a shot.”
“You were ordered not to board l’Étoile. Did you at any time board her?”
“No. Never.”
“Not even after she was beached? Would it not have been prudent to secure her so as to make sure no terrorists had remained on board?”
“It wasn’t necessary. Hadawi had offloaded and stockpiled various supplies while it was possible to retrieve them. By the time we got there, l’Étoile had begun to burn hot, and explosions within it were collapsing the decks. The fuel bunkers caught fire. It got hot enough to melt steel, and even had it not been, the smoke was so thick it would have been impossible for anyone to have survived. We sent no search parties. Everything was too hot for days, and much of the structure had fallen in on itself and been fused by the heat.”
“So, what orders did you violate?”
“None.”
“Were you not told to await the decision of the National Security Council?”
“I was, and I did, until our communications were knocked out and I could no longer do so. We were on our own, as in the days when command initiative was the rule.”
“Not these days, with real-time communications?”
“No, not these days, but we had no communications whatsoever, and were thrown back to the era of John Paul Jones.”
“Objection,” Beck called out. “The defendant has no legitimate basis for comparing himself to John Paul Jones.”
“Counsel for the Defense?” the judge inquired.
“Your Honor, he didn’t. He stated that lack of communications threw his ship back to the era of John Paul Jones. That is all.”
“Overruled.”
“John Paul Jones or not, did you not disobey orders not to pursue the pirates inland?”
“No such orders were received.”
“Ah, but that was not the question. Did you disobey orders not to pursue the pirates inland?”
“No.”
“Oh,” Frearson said. “That’s right. No such orders were received, or, in fact, issued. Tell me, Captain Rensselaer, is it possible to disobey orders that were neither issued nor received?”
“I think not.”
“So, what orders did you disobey?”
“None.”
“Would it be possible for an officer exercising command initiative to exceed the limits upon it so grossly as to merit charges and punishment?”
“Of course.”
“How?”
“In any number of ways.”
“Such as?”
Beck did not object to Frearson’s invitation to speculation on the part of the witness. He thought it could only be to the prosecution’s advantage.
Rensselaer forged ahead, in Beck’s opinion, courting damage. “For example, if a boomer captain—”
Frearson interrupted. “For the general understanding”—he meant spectators and the press—“what is a ‘boomer?’”
“An SSBN, a ballistic-missile submarine.”
“Right. Go on.”
“If a boomer captain, cut off from communication and somehow able to get around permissive action links, were to launch a nuclear missile targeting Moscow—or, let’s say, Paris—command initiative would be no defense.”
“Given that you engaged,” Frearson asked, “in heavy, casualty-rich, ground-and-naval combat in a country with which we are not at war, do you not think that, as in the example you just cited, command initiative would be no defense?”
“No.”
“No? Why is that?”
“Your Honor,” Beck interrupted, “as much as I enjoy Defense Counsel challenging the actions of his own witness, who is also his own client, I don’t see where this is going.”
“I’m asking the witness—my client, the accused—to explain his conduct regarding one element of the charges against him. I can break it down into smaller bits if the prosecution needs help with comprehension.”
“I think this testimony is invaluable,” the judge stated. “Proceed.”
“Thank you, Your Honor,” Frearson said. “Captain Rensselaer, will you explain why you think your action was justified by command initiative?”
“For reasons both positive and negative,” Rensselaer answered. “First, on the positive side, unlike the example I offered, the effects were quite different. Millions of people didn’t die and a nuclear exchange between states did not occur. Instead, those who did die were enemies of the United States, against whom the United States is or was engaged in combat in Syria, Iraq, and the Horn of Africa. And almost two hundred innocents, citizens of our NATO allies and other allied countries, were saved.
“Second, the region of Somalia in which we made our incursion is neither under the control of the Somali government nor itself recognized as a sovereign state. The United States has often invoked the right of hot pursuit, such as, during the Vietnam War, in Laos and Cambodia.
“Third, a great deal of precedent exists—historically at least: I’m not a lawyer—for the American Navy, when out of contact with command, to leave its ships and operate on land: in hostile countries, neutral countries, and ungoverned territories. Sometimes this has been successful, as in the Perdicaris incident, and sometimes not, as in the Eaton Expedition. Hostage rescue, as in the Mayaguez incident or in Iran, has involved the United States invading not ill-defined regions such as Eastern Somalia, but sovereign nations with which we were not at war.
“Those are the positive reasons for my conduct, completely aside from the moral and humanitarian imperatives in the absence of any other force or agency coming to the aid of the hostages.”
“Did you have a negative reason, or, rather, a negative incentive for your decision?”
“I wouldn’t call it an incentive, but, rather, the reasonable belief that had I not done what I did, I would have been culpable, I would have found myself in the Chesapeake Brig, and in this courtroom facing charges, just as I am now.”
“Objection,” Beck called out. “This is wild. The witness has crossed into the purely speculative and theoretical. He’s way out of line.”
“Mr. Frearson, I would tend to agree, unless you can re-frame your question.”
“I will, Your Honor. Captain Rensselaer, did you have reason to believe that had you not exercised your initiative as you did, you would have failed in your duty and been subject to punishment?”
“I did.”
“Was this reason mainly speculative, a product of your imagination?”
“No.”
“What was it, then?”
“It was a case, in law, of command malfeasance in a situation closely parallel to the one here in question, a case that every line officer in command at sea is either familiar with or should be. In the absence of guidance, it weighed heavily upon me.”
“And that was?”
“Captain Balian of the Dubuque.”
“If I may anticipate Trial Counsel’s objection, Your Honor,” Frearson said, “I assume that every member of the panel is familiar with the Dubuque incident, but, whether or not to Captain Rensselaer’s advantage, in describing its influence upon his decisions, it will illuminate his frame of mind at the time.”
“Your Honor,” Beck argued. “The accused’s interpretation of the law is irrelevant and immaterial.”
Frearson countered, “I will argue the law later. Here we have the opportunity for the accused further to disclose his motive. I would hope the court would be eager to assess motive in this case, especially since motive is so often unintelligible, shielded by constitutional privileges, or merely unknown.”
“The court would,” the judge said. “I instruct the witness not to opine upon the law but to state simply why, in light of the Dubuque incident, he chose to make the decision he made. Proceed.”
*
Rensselaer glanced at Frearson, who, saying nothing, briefly lifted both hands at his sides, as if to say, Proceed. “How much latitude do I have in this, Your Honor?” Rensselaer asked the judge.
“I’m sure Trial Counsel will keep you in bounds,” the judge told him.
Rensselaer began. “I haven’t reviewed the incident, but it occurred while I was at the Academy, and was a topic of discussion in several subjects of instruction, and informally as well. We were all very much aware of it.
“As I recall, the Dubuque, an LPD with nine hundred Marines on board, was on its way to the Persian Gulf to assist in the tanker war. The Roberts—that is, the Samuel B. Roberts, a Perry-class frigate much like, I might add, the Athena—had hit an Iranian mine a few months before, and things were heating up.
“That was the time of the Vietnamese boat people. Somewhere in the South China Sea, the Dubuque encountered a broken-down junk overloaded with refugees. The engine didn’t work, a score of refugees had already died, and they had run out of provisions and water.
“Of course, under Article Zero Nine Two Five, it fell upon Dubuque to rescue them, and because the boat people were well known and not unassociated with American foreign policy, Seventh Fleet had issued a specific order reiterating the duty to rescue.
“The Dubuque stopped, transferred stores and a chart, and that was that. The captain wasn’t told that the engine didn’t work, how many had died already, and that some of our sailors had repelled one or—I’ve forgotten—maybe two refugees trying to climb aboard, and left them floundering in the water. Evidently he was not aware of the actual number of refugees on the junk and that the provisions transferred were not at all sufficient, especially since some had been lost during the cross-decking.
“So we left them, and thirty-seven more died before the others were rescued by a fishing boat. They had begun to eat each other, and had they not happened upon the fishing boat, they all would have died. Now, the Dubuque was very big, and easily could have taken on the eighty Vietnamese even if they had to sleep on deck. Further, it had lots of launches and connectors, and it could have spared at least one boat and a couple of sailors to tow the junk to safety, even had that been unorthodox. But it didn’t. And even though, suspectly, the captain was apparently unaware of crucial facts, he was court-martialed, convicted, and relieved of command.
“I assume that, as I said, had I failed to attempt to rescue the hostages—no other asset was anywhere near—I would have been convicted of dereliction of duty. That was the negative part of my decision, although I admit to having been so moved by the positive part to the extent that, had the negative part not existed, I would have done what I did anyway.”
Beck rose. “Your Honor, given the latitude you’ve afforded this witness, I request a short redirect.”
“You may.”
“Captain Rensselaer,” Beck asked, “the court is undoubtedly impressed by your devotion to Article Zero Nine Two Five, which lays out a duty to rescue those in danger of being, or of actually being, lost at sea. Do you know the difference between land and sea?”
“Yes, I know the difference between land and sea.”
“Is Ras Hagar on the land or on the sea?”
“Land.”
“Is a hundred miles inland from the Somali coast land or sea?”
“Land.”
“Does Article Zero Nine Two Five oblige U.S. Naval forces to rescue people in danger of being or actually being lost on land?”
“No.”
“Would you repeat your answer please?”
“No.”
“No, you won’t repeat your answer, or no it doesn’t?”
“No, it doesn’t.”
“Are you sure?”
“Yes.”
“Would you affirm your answer?”
“It does not.”
“No further questions.”