By closing statements on January eighteenth, the Athena affair had become only an afterthought, detritus in the continually moving current of events. At one time an element of the election, its attraction had diminished the instant the new president was chosen, and was then further devalued, for Americans at least, by the complexity of a trial that unfurled without even a hint of sex. Europe, too, had forgotten. Since Athena had rescued its hostages, Europe had suffered massacres in Paris and Brussels, and the kidnaping, by Boko Haram in Nigeria, of a young French doctor and her beautiful children. This captured the imagination of the continent and held it for months, draining many barrels of ink and watts of electricity. Probably there had been nothing comparable since the ransoming of Richard the Lionhearted, who, though notably ugly and short, was at least a king.
As Rensselaer’s court-martial had advanced, the press had thinned out. With neither cameras in the courtroom nor satellite trucks allowed on base, structural impediments to sensationalist coverage had existed from the beginning. The former JAGs that the networks had enlisted as talking heads were unanimous in their predictions that the facts pointed to the near certainty of conviction. Rensselaer’s actions, they said, had simply been too extreme. Long ago, when the nation had been youthfully flexible, he might have been a hero like those who fought the Barbary Pirates. Not now.
In the First World War, the future general Patton had beaten an American enlisted man to death, with a shovel, for not advancing into enemy fire. By the Second World War, though Patton was relieved of his command for merely slapping a soldier, he was eventually put in charge of the Third Army. Now, a suggestive proposal to—or perhaps even a wink in the direction of—a female soldier could be career-ending. What then of going off entirely on one’s own and using a surface combatant of the United States Navy to bombard and destroy a town in a nation with which the U.S. was not at war, invading its wretched interior, and engaging in numerous battles, all after clear orders not to take action? With nary an exception, the talking heads were of one opinion. That is, the experts without bodies said the verdict was in the bag.
For these reasons, the only member of the civilian press present on the eighteenth was a crime reporter for The Virginian-Pilot, who, due to the murder of two convenience store employees during a robbery in Hampton, was so impatient to leave that the whole time she was covering the closing statements her right foot tapped at high speed as if she were listening to boogie-woogie. The small remnant of national press present a few days before had decamped to Washington to cover Hartsfield’s inauguration. In deadening winter, Naval Station Norfolk was gray and tranquil amid intermittent snows.
Once the vast reservoirs of retained heat in the nearby ocean, the Roads, and the bay had dissipated, Arctic air had no amelioration, and dusk on the seventeenth had seen energetic snow squalls. On the eighteenth, under the lights in the helicopter hangar, the huge press and spectator section held in addition to the Pilot reporter three sailors who had wandered in to get out of the snow, and not a single civilian.
The admirals in their two rows of six apiece flanking the judge were as colorful, if hardly as consequential, as the disciples at the Last Supper. To a man they were suffering the way one does when one has overshot a freeway exit and must drive away from the destination for ten or fifteen miles before leaving the road, re-entering in the other direction, and driving another ten or fifteen miles back. They knew they would be at a disadvantage were they kept from Washington, whence many of them had come and where everything was about to change. If they couldn’t influence or even make contact with the new appointees to whom they would soon report, they would be at a severe disadvantage. Although they didn’t tap their feet like the frustrated reporter, they were impatient to render their verdict and get back to work. When the judge announced that after closing statements the court would adjourn until the twenty-first, the admirals felt the blow as if from the Yamato’s 18.1-inch guns.
That is, all but the president of the court-martial, Admiral Porter, who outranked them, was senior, soon to retire, and so famous for his taciturn, laconic manner that he was ironically nicknamed Chatty Kathy. It was not unusual for him to chair a contentious three-hour meeting without saying a single word. When asked once by the President of the United States to comment on his economy with words, he had replied, “No.” All who served under him respected him so much it was like love.
So, the atmosphere was not pleasant once everyone had arrived, shaken the snow off caps and jackets, and taken seats. The lights hadn’t been on long enough to heat the hangar. Before Beck was called to make his closing argument, Frearson turned to Rensselaer. “The lights haven’t been on long enough to heat. It’s cold and miserable. He’ll have to make his argument while he’s chilled and—look at him—depressed. I’m keeping my coat on, and by the time I get up the room will have warmed and the admirals will have awakened. What’s also good is that the political pressure is in abeyance, and will remain so as they deliberate. And no matter what happens now, we can always appeal.”
Rensselaer looked at him, and asked, with neither anxiety nor fear, “Do you think we’re going to lose?”
“We’ve got at least an even chance, yes. Did you ever believe, when going into battle, that you were assured of victory?”
“Never.”
“Well, here we are.”
“The judge opened the session, sized up those before him, and asked, “Is Trial Counsel ready to proceed with closing arguments?”
*
Thin, eager, and despite an occasional shiver, Beck popped up like a fishing float. Rather than answering the question, he launched right in. “The prosecution,” he said, his voice and his characteristically explosive physical movements slowed nonetheless, and to his surprise, by the cold, “is willing to admit that the results of Captain Rensselaer’s private expedition using the Navy’s resources were generally successful. But we ask the panel to consider two closely analogous examples. First: hostages are taken in, let us say, Denmark. Contrary to explicit orders to ‘take no action,’ an American warship in the North Sea bombards a Danish village and sends a raiding force to rescue them—successfully. So what? Isn’t success overshadowed by everything else?
“Such as . . . integrity of command? The authority of the United States? Risk to American relations with other countries? That risk undertaken blindly and without the broader knowledge of higher military and civil authorities? The risk, in confronting the ferocious Danes, to the lives of American personnel, none of whom, presumably, joined up to serve under a privateer commissioned by himself and unconstrained by orders? The subtraction, again, in defiance of orders, of assets potentially in dire need elsewhere? For an American officer privately to invade Denmark would be unthinkable. And yet every consequence, every condition I have just outlined applies precisely, if on a lesser scale, to Captain Rensselaer’s actions.
“I need not point out to this distinguished assemblage that although proportionality, degree, and result may be pertinent in sentencing, conviction requires—demands—only principle. It is binary. Yes or no. Black or white. Did the captain violate the law, or did he not?
“Consider a second and closely related hypothetical. What if every commanding officer of every ship in the Navy believed as Captain Rensselaer did?” Here, Beck paused, turned away from the panel, and then spun back around deliberately fast.
“No. Let me modify that. What if only half the commanding officers took their ships where they wanted, when they wanted, to do what they wanted? What if a quarter? A tenth?
“What if a precedent is set, so that in the future any officer might look back and conclude that if his objective is achieved, and his aims accomplished, he”—he paused—“or she, has license to make decisions and pursue objectives independently of his command, his government, his nation? I need not remind a panel of admirals of every naval officer’s duty properly to interpret and manifest his commanders’ intent, but without tortured reinterpretation, delay, rationalization, exaggeration, or excuse.
“In the past few weeks, we have been over the facts of the case, which speak for themselves, and, in being extreme, are unfailingly memorable. In fact, they almost jump out at you. I doubt that any of us present will ever forget them. The defense has hardly challenged a single one of these facts, relying instead and in almost every instance on a nearly irrelevant, often absurd, and—on this I congratulate them—highly creative interpretation of actions and deeds that to any reasonable trier of facts and law should seem to be nothing more than, if I may quote my five-year-old son, ‘wiggling out.’
“In lesser cases, I’ve given longer summations. Even though this is a capital case, I’m comfortable with brevity. Given the facts and the law, I see no other choice but brevity. Out of probity and respect, I cannot say to you, ‘You must convict.’ That would be presumptuous. And I think you’ve heard enough from me. My voice is irrelevant and it is weak. The strong voice that I trust you will hear, echoing through conscience, judgment, and history, is the simple and clear voice of the law. The law that we did not make but to which, as a sacred trust, all of us are keenly obligated. I ask you, therefore, to heed that voice, and to convict.”
“Is that all, Captain?” the judge asked.
“Yes, Your Honor. At heart it’s a simple case,” Beck said both confidently and sadly.
“Commander Frearson,” the judge now asked, “are you ready to proceed with your concluding arguments?”
“Yes, Your Honor,” Frearson answered, as slowly and calmly as if to contrast with Beck’s jump from his seat. Bear-like, he extracted himself from behind the defense table and unselfconsciously ambled up to face the admirals.
They were magnetized by the difference with Beck. Frearson’s big body, with not a whit of fat; his big head, with straight, golden hair covering it in a neat but generous military haircut; and his ruddy windburn testifying that even in January he had managed to be outdoors for hours each day, drew their attention and their respect. Unlike Beck, he spoke slowly, but with great strength; mildly, but with great confidence; and always in a deep, commanding voice, the gift of both his size and his natural authority.
*
“I thank the prosecution for its brevity. Why not? The prosecution’s client is three hundred and thirty million people, the vast, vast majority of whom have never heard of this case in any detail, if at all—and are uninterested in it, and immediately unaffected by it. Like the prosecution itself, win or lose, they will go home tonight and eat their dinners just as on any other night.
“The defense however, has a different burden. For us, in this capital case, what is at stake? Life and honor are at stake. If the Nimitz plows over a swimmer at its bows, perhaps not even a seismograph on board would register the impact. That is what we have here: a dozen admirals, thirteen if you count Your Honor. I took the liberty during the trial of adding up your stars—twenty-eight. That’s a lot of brass. And then, the Navy, the DOD, the government, the nation: of far greater weight than just the Nimitz. We, therefore, do not have the luxury of brevity. I wish we did. To the prosecution, I say, congratulations on the lightness of your burden and its inconsequentiality to your client, who, I might add, has only benefitted from Captain Rensselaer’s many years of service and his recent extraordinary actions, heroic actions, which, I will show, were not forbidden by law but, quite to the contrary, mandated by it.
“I have something more to say about the prosecution’s brevity. The defense has no such privilege, because in a capital case, with the potential of a capital penalty, it is the defense’s duty to strain to the utmost. To save a life. Just as one would stretch as far as one could, with an eye to and the hope of achieving the impossible—to save one’s wife, one’s child, one’s fellow sailor or Marine, bystanders in danger, civilians, men, women, and children—the defense in a capital case is guilty itself if it does not exceed its own limitations, risk its own interests, and do everything it possibly can. All this by command of the sanctity of life.
“That we will do. And is that not exactly what Captain Rensselaer did?”
Anyone watching Admiral Porter and most of the other admirals would have seen an ever-so-slight lifting of the eyelids. Beck saw it, and it worried him. The crime reporter for The Virginian-Pilot had, unbeknownst to her, stopped tapping her foot. Now she was anxious about two things—getting to Hampton to report on the slayings, and having to leave, as she was assigned to do, in the middle of these proceedings. She felt torn, but she had no choice. She looked at her watch and took a deep breath, but she did not leave.
*
“Whereas the defense recognizes its responsibility to refute one by one the charges against the accused, we would like to point to overarching facts in regard to all of them. First, they have been amassed with unusual promiscuity: seven articles, some, in our understanding, inapplicable and even inexplicable, arrayed like lead soldiers and fired like scattershot with hope for a hit. Second, I’m duty bound to note before the court that these charges have come down during a presidential election in which the charges themselves have been an issue and the president himself has directly intervened in the details of the case, ordering the detention of Captain Rensselaer when clearly the captain is neither a danger to the public nor in any way a flight risk. What would he do that might endanger the public? Rescue hundreds of innocent civilians in Nashville or Grand Rapids? Where could he flee? Iran? Syria?
“A Navy captain with long and honorable service, he would ordinarily and at most be confined to quarters. That is how we do it. But not this time, when the charges impinged upon an election in which the president’s heir and legacy were at stake. As you very well know, command influence can be attributed to officers far inferior in rank to any member of this panel. And command influence in courts-martial can rightly be characterized as—if I may, in following Trial Counsel’s example, quote my own little boy—a ‘no no.’ But what do we have now, explicitly, even in writing? We have the President of the United States exercising command influence. This despite the law clearly stating that, if I may quote, ‘No person . . . may attempt to . . . influence the action of a court-martial or . . . the action of any convening, approving, or reviewing authority.’ By his unusual order, the president has signaled his presence and intent. Even the smallest signal from such a uniquely powerful source has undeniable impact and influence.
“As for the associated charges,” Frearson said, with perfectly modulated annoyance and contempt that, while insufficient to cross into resentment or accusation, were highly effective in garnering sympathy for his irritation at having to suffer them, “Article Ten, improper hazarding of a vessel. Everyone on this panel will know that this facet of law applies to matters of navigation and piloting. Athena neither ran aground nor bumped into anything. Yes, in the battle of Ras Hagar she was brought into harm’s way, but if the Navy is to charge captains for venturing into harm’s way, even when disagreement exists in regard to the interpretation of orders, the Navy will be transformed into nothing more than a tremendously down-market cruise line with limited menus, gray ships, and no water-slides. You may wonder why the defense didn’t move to have this charge dismissed. Frankly, we wanted it to survive so as to betray the nature of and motivation for all the charges.
“Article Eighty-Seven, missing movement. Yes, Captain Rensselaer was not aboard Athena when by his order his executive officer took her a few miles offshore of Ras Hagar, but Athena went nowhere. Unless one interprets movement as changing berths or anchorages, nothing was missed. And it is patently ridiculous to apply a regulation intended for sailors who don’t show up because they are either drunk, AWOL, or in the clink, to a commanding officer who is fighting ashore while his ship awaits him in close proximity and clear sight of land. This, too, we failed to challenge, so as deliberately to preserve its absurdity as a point of illustration.
“Article Eighty-One, conspiracy. With whom, exactly, did the defendant conspire? In trying this case, Trial Counsel was happy throughout to stress that Captain Rensselaer kept his orders, his plans, and his intentions from Athena’s officers and men. If this charge is to stand it will perhaps uniquely establish that it is possible to conspire in secret only with oneself, lifting from future prosecutors the annoying burden of identifying co-conspirators.
“And then Article Eighty-Five, desertion. Really. Now, the court will determine whether or not—and I will show not—the remaining charges should apply. But are we to believe that a captain who repeatedly leads his troops into battle—against Ras Hagar, on the Somalian Plateau, holding off Hadawi’s army—who achieves his objective, and who is both gravely wounded and victorious, is guilty of desertion?
“Considering the elements of the statute, Section (a) one, Captain Rensselaer did not go or remain ‘absent from his unit, organization, a place of duty with intent to remain away therefrom permanently.’ He did quite the opposite.
“Section (a) two. He did not quit ‘his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.’ Again, he did quite the opposite. The one element of the charge that may cast a shadow over his innocence is the question of ‘place of duty.’ I will clarify this, I think, rather unambiguously, in my general defense, but as this charge alone is a capital offense, the defense will address it later to make sure that the shadow is eliminated, so that the absurdity of the charge is exposed in full view. Again, how can a commander who repeatedly leads his troops into hazardous battle possibly be charged with desertion?
“I will address the remaining charges largely as one. They are differentiated for sure—mutiny by refusing to obey orders, usurping lawful military authority, Article Ninety-Four. Failure to obey order or regulation, Article Ninety-Two. And the General Article, One Thirty-Four, as formulated in this case: diversion, invasion, subtraction of military capacity in time of war, and risking the creation of a subsidiary front.
“We have addressed the technicalities. That is, the nature of the received orders, and the duty of a commander when in changing circumstances he is out of communication. We’ve argued these in such a way that here we need only refer to our points, which the defense is quite sure are so clear in the minds of the court that they need not be reiterated. What remains is the general defense, which is the strongest defense, and with which we will demonstrate, as stated briefly before—and not at all briefly in our brief—that Captain Rensselaer was obligated to do what he did, and that this obligation, superior in law and in morality, overrides any infractions, real or imagined, that may stem from it.
“To wit, military personnel of the United States are bound to ad here to the Second Geneva Convention, which states, inter alia, that in regard to those ‘who are at sea and who are wounded, sick or shipwrecked,’ its adherents are obligated to ‘take all possible means to search for and collect’ those very same, which the text then cites as ‘shipwrecked, wounded and sick.’
“Shipwrecked means, as well as clinging to wreckage in the water, being cast upon a shore, as Robinson Crusoe was shipwrecked for a very long period. Not only Defoe hews to this definition, but Shakespeare—‘shipwracked upon a kingdom,’ Hamlet—and Swift, whose Gulliver was ‘shipwracked on the coast of Balnibarbi.’
“According to Article Seventeen, one, of Additional Protocol One of the Second Convention, the rescue of those it identifies as cited above is of such importance that anyone—I stress, anyone—‘shall be permitted, even on their own initiative, to collect and care for the wounded, sick and shipwrecked even in invaded or occupied areas,’ and, here I stress, ‘no one shall be prosecuted, convicted or punished for such humanitarian acts.’
“Lest the court conclude that Captain Rensselaer is not on trial for the rescue efforts the Convention deems un-prosecutable, but for disobeying orders, a different and additional thing, I respectfully point out that according to the charges he is indeed on trial for the efforts themselves, and that the transmission of orders was curtailed very early on, throwing him upon his own initiative and interpretation of not only the tension arising due to what may, or may not, have been an order to stand down, versus not only the Geneva Convention but U.S. Navy regulation Article Zero Nine Two Five, Section one.
“This, American law, military law, Navy law, states: ‘Insofar as can be done without serious danger to the ship or crew, the commanding officer or the senior officer present as appropriate shall: a., proceed with all possible speed to the rescue of persons in distress if informed of their need for assistance, insofar as action may be reasonably expected of him or her.’
“Now, much has been made by the prosecution of the supposed disqualification of Captain Rensselaer’s rationale, license, and efforts to satisfy his obligations under both international law and U.S. Naval regulations, because of his operations on land. As we all know, this is the Navy. We have ships, and ships don’t go on land.” He glanced patronizingly at Beck. “That’s true.
“However, a very large part of the Navy, including of course the Marines, is devoted to amphibious warfare. Our massive amphibious ready groups all over the world exist for the very purpose of warfare on land, and are expected to operate in combat zones that extend hundreds of miles inland from the surf. Nor is naval aviation confined to or based exclusively upon the sea. In recent decades, naval operations have focused upon—and naval personnel have served in, survived in, and given their lives in—AORs far inland, such as Iraq, and Afghanistan, which does not even border on the sea.
“Before she was diverted, Athena’s original tasking was to fight in the surf zone and inland along the coast of Iran on the Arabian Sea. For that purpose, she carried a detachment of Navy SEALs—Sea, Air . . . Land. I submit that the fight ashore does not in any way remove his actions from what is expected of a U.S. naval mission, or alter the nature of Captain Rensselaer’s obligations under law. As the court is aware, in the appendices to our brief is a list of scores of operations and incidents, from the Revolutionary War to the present day, of U.S. Naval personnel, whether Marines, SEALs, or sailors, operating extensively on land, over land, and inland, without incurring censure, prosecution, or even the batting of a judicial eyelash. That Athena’s rescue efforts left the water should be of no relevance whatsoever and certainly neither the basis of nor the justification for any charges.
“I venture to say, gentlemen, that this case presents not a violation of law but the necessity of weighing the merits of conflicting laws and competing demands. It would be a lot easier if Captain Rensselaer had, under the Geneva Conventions or Naval Regulations, refused an illegal order. At issue however is not a conflict between what is forbidden and what is asked, but between what is required and what is asked. Even so, the ‘asking’—that is, the order—was itself ambiguous. He was ordered both to take action and to take no action until a decision was reached, and then he was cut off, and thus the decision devolved upon him.
“The Athena’s crew watched as men, women, and children were slaughtered before their eyes. They were told of, and witnessed, a series of steadily carried-out executions, by the clock, one an hour. Put yourself in their place. Put yourself, more appropriately, in Captain Rensselaer’s place. Aware of the possible consequences stemming from the ambiguities, stress, and uniqueness of the situation, he deliberately insulated his crew from even the knowledge of his decisions, to protect them and to take all the risk and responsibility upon himself. On the expedition land-ward, he took only volunteers, who, solely according to conscience and spurred by what they had seen, chose to follow him.
“One cannot say exactly, yet it is reasonable to assert, that the man on trial here today saved almost two hundred completely innocent lives, and did so in extended, valorous combat against a common and declared enemy of the United States, a savage and terroristic enemy against whom our troops are fighting this very day in the Levant and in, and here I stress, Africa itself, indeed in Somalia, not that far from where Athena took on the very same foe.
“I need not remind the distinguished members of the panel of the gravity and danger in naval warfare. Here at home, with our pressed uniforms and gracious customs, we may seem at times to be the attendees of a giant yachting party. But how that changes, and with such shock and speed, abroad and on the sea. This is recognized, but often in a manner that escapes recognition not only by the general public but by us as well.
“For example, in the custom of associating a woman with the christening of a ship as it is about to be launched. A very dainty thing, no? Mamie Eisenhower struggling to smash a bottle of Champagne against the steel? From what does that come? Well, it used to be wine . . . red wine. Why red? Because it served as a substitute for what in ancient times had been blood, the blood of slaves or captives who were tied onto the rails so the ship would crush them as it slid into the water. That is part of our origin, and knowing it should sober us in regard to the essentially tragic nature of our mission. We are engaged in what is an ultimately very sobering enterprise endowed with the capacity to transform the very purest motives into quicksilver imperfections that escape classifications of law.
“Nonetheless, we have made our case for the legal imperative. There is also a moral imperative. In weighing the harm versus the good, you cannot avoid putting those two hundred lives on the scale against whatever theoretical harm might have come from the captain’s decisive, courageous, and successful exercise of his initiative.
“We teach initiative. We encourage it. We stress that it is one of the things that enables a free people to survive in its struggles with lockstep totalitarianism. We have always heavily counted on it. And we admire it. No one denies that it comes with risk, but our lives on the sea teach us that risk is ever present.
“Not a single member of the court is unaware of the United States Navy’s maxims in regard to each element upon which this case turns. Taken from the greatest figure in naval history, Admiral Horatio Nelson . . . well you know it by heart, but I shall quote it anyway: ‘In case signals can neither be seen or perfectly understood, no captain can do very wrong if he places his ship alongside that of the enemy.’
“To preserve the blessings of peace and home, we go to war. And in war these very things are destroyed and we are taught their opposites. Yet that which we cherish cannot exist unless we are willing for a time to abandon it. Of the many tragedies of war not least is that he who does not return must die knowing both that he has lost and cannot regain the virtues he has fought to preserve.
“Some return unable leave the echoes of war behind, and are changed enough so that they no longer can embrace that for which they left to fight. Only the truly blessed—fortunately the majority—bend to war when they must, and straighten once more for home and hearth.
“Captain Rensselaer kept his men in the dark to protect them, yes, but also to allow them not to turn their backs upon their responsibilities. In his interpretation of his orders, he resolved ambiguities that his superiors failed to reconcile. Because he did, some of his men died, but literally hundreds of people were saved, families preserved, children freed to grow up.
“Like all of us, he and his crew were torn between the fire of the hearth and the flames of war. He took it upon himself to reconcile the paradox and contradictions of war and peace. He had no choice, for he was the captain, far from home, left to his own devices. There was no one else.
“I beg the honorable court to keep in mind that Captain Rensselaer reiterated in dangerous practice the great traditions of the Navy. He followed the highest laws to which we are devoted and in respect of which we are commissioned. And, gentlemen, he succeeded.
“I close with this. I see in my mind’s eye a small American ship, six thousand miles from home, battered after multiple combats with the enemy, on station so long that its supplies are taxed, its aspect ragged, its crew exhausted. Alone and small though it is, it is the only warship at the edge of a vast continent. So much is it like the little ships of our Navy as it began, so cut off from communication, so long enduring, that it must call upon the virtues of that other time. Were the sailors of Odysseus magically cross-decked to find themselves upon Athena, they would immediately sense a common bond. Whatever your verdict, Athena and her crew will be remembered in the annals of the United States Navy for bravery, humanity, and for having done right. And may God bless them for that.
“I rest my case,” Frearson said. Trying unsuccessfully not to show it, he was deeply moved. No one could tell if the long pause before adjournment was because the court was moved as well or had expressed its disapproval in silence.