When in that cold January there were no sweet showers as in April on the cape but it snowed as if the world were ending, pilgrimage between the brig and court became extremely difficult, as neither Chesapeake nor Norfolk, unaccustomed to three-foot drifts, had many plows. The brig itself was unusually quiet, not merely from the muffling of the snow in the air as it fell and on the surfaces it blanketed, but because intake had slowed, release had quickened, and quite a few guards had been granted leave.
To Rensselaer’s surprise, he was allowed into the dayroom, which was almost empty. “Why?” he had asked.
“Your guys are gone,” the guard told him.
“Who?”
“The other officers, your crew.”
“Movius?”
“Yes.”
“Holworthy?”
“Yeah, him, too. The officers and chiefs. Pisecki, he was a chief, right? It’s hard to keep track, ’cause you don’t have insignia. But officers and chiefs were the only ones in this block. They put them on a bus yesterday.”
“What happened?”
“Charges dismissed, I was told, as a result of the facts of your trial.”
“Where’d they go?”
“San Diego. Holworthy—he was a SEAL, that I know. He said the ocean’s freezing this time of year even there, but he’s going do a big swim and then walk up Orange Avenue to Dunny’s and have burritos and beer. That make sense?”
“Very much so. Pisecki?”
“Flying him on a Greyhound out to the Stennis before it gets out of range. They offered him leave but he wouldn’t take it.”
“That’s Pisecki. What about Movius?”
“The Jewish guy?”
“Yeah, the Jewish guy.”
“I didn’t mean it badly. I said that because he went to church on Saturday. I mean, they brought in a rabbi. While he was here, in the brig, I think he managed to get a gig at Caltech—teaching or studying, I don’t know. Can you believe that? How could he do that when he was up on charges?”
“Two facets of law,” Rensselaer replied. “Presumption of innocence, and chutzpah. Caltech is in Pasadena. Ever been there?”
“No.”
“It’s like the Garden of Eden. He’s in love with a girl who’s there now. She’s formidable, beautiful, and charming.” Rensselaer smiled.
“It makes you happy?”
“It does.”
As Rensselaer sat in the dayroom, he had no desire to play Ping-Pong or watch television. Ping-Pong was out anyway, because the two other sorry prisoners present were playing some sort of children’s board game. So he went back to his cell, where he strained to hear the falling snow, but could not.
*
The verdict would be handed down at 0700 on the morning of 20 January, allowing the admirals time, even in the snow, to rush to Washington for the inauguration. Accordingly, Rensselaer left Chesapeake at 0430, because of the weather an hour earlier than usual. No one was on the road, and it was dark all the way. Rensselaer thought it fitting that he was taken in the dead of night and in the cold. It was an appropriate antechamber to what might be the rest of his life in a cell, or even, as unlikely as Frearson had assured and history supported, execution. He was a soldier, who had learned in training and practice to keep his emotions in check even in the face of death.
They arrived early, no one was there, and the lights were off until his guards couldn’t stand the cold and one of them found the electrical panel and threw the switches. Instantaneously, the world was filled with the glowing colors in the flags of the fleets and commands. And by the time Frearson entered, it was fairly warm.
“Are you all right?” Frearson asked. He himself was not, but he hid it.
“I’m all right.”
“You’re not worried? You don’t look worried.”
“Would it help?”
“We can always appeal.”
“I’m prepared for the worst,” Rensselaer said emotionlessly, “as I have been since I took my oath as a midshipman. After all, it’s only a matter of time. Eventually, everyone sinks under the waves, but the sea remains untroubled.”
The admirals filed in. Despite or perhaps because of trying to be expressionless, they looked grim. Only the principals were in attendance, not a single reporter or civilian, not even the crime reporter from The Virginian-Pilot, who hadn’t made it in, because of the snow. Once, the Athena affair had seized the attention of the world, but no longer, for that was in the summer, and now everything was hushed in white. Rensselaer found this, keyed to the nature of things, promisingly just.
After the court was called to order, the military judge announced, pro forma, that the verdict would be handed down by its president, the senior and taciturn Admiral Porter. In appearance and in truth he was stern, kind, and—chiefly—wise. Responsible for this were not just his age and his character, but years of being tested day by day in action and decision. He was grayed, sad, tough, and, as much as he could be, in control of circumstances and himself. The admiral was exactly what Rensselaer had once hoped someday he himself might be were he to live as long. And then the admiral read.
“Captain Stephen Rensselaer, United States Navy, this court-martial finds you not guilty of Article Ten of the Uniform Code of Military Justice, improperly hazarding a vessel.
“Of Article Eighty-Seven, missing movement: not guilty.
“Of Article Eighty-One, conspiracy: not guilty.
“Of Article Eighty-Five, desertion: not guilty.
“In regard to Article Ninety-Four, Section one, b., two, mutiny by refusing to obey orders or perform duty, usurping or overwriting lawful military authority. And Article One Hundred and Thirty-Four, the General Article, in this case diverting a component of the armed forces of the United States in time of war to invade a territory with which the United States is not at war, thereby subtracting from the capacity of the United States to wage war, and risking creation of another front, the court wishes to make the following statement in view of the fact that violation of the first article is a capital offense.
“The court recognizes both the overall success of Athena’s undertaking in preserving the lives and safety of the hostages, and the valor this called forth. We are sympathetic to the arguments of your defense counsel, respectful of your motives, and impressed by your skill. We found in our deliberations that every member of the panel could see himself in your place, and not a single one of us wanted to convict.
“However, admiration and desire aside, we felt compelled to consider, among others, two articles of common precedent. The first, adopted from the late Justice Scalia’s Canons of Construction—to which I imagine defense counsel is not likely to object—is that words are to be understood in their ordinary meanings, assuming they are not specifically assigned other meanings within a specified context; second, that nothing is to be added to what the text states (casus omissus pro omisso habendus est); third, that the expression of one thing implies the exclusion of others (expressio unius exclusio alterius); and, fourth, that mandatory words impose a duty.
“The court, therefore, had to consider that the orders you received, to wit, ‘Take no action,’ and ‘Stand by,’ were valid and were to be obeyed.
“We considered carefully defense counsel’s opinion that in this extraordinary case it was our task and duty to judge between the competing demands resulting from the confliction of valid laws neither of which necessarily trumps the other. In terms of setting precedent, we believe that this court is competent neither to make such a determination in general nor to apply it to this case alone.
“Further, we did not judge that it was necessary. What relieved us—indeed, prohibited us—from such an excursion was the precedent in law to which our sister service, the United States Coast Guard, adheres. A major part of their function, their history, and their experience has been the rescue of those imperiled at sea or shipwrecked ashore, and their doctrine is both very clear and exactly analogous to United States Naval doctrine and law, though ours is more fully developed in regard to fleet movement and combat at sea. Coast Guard and Naval vessels are obligated to accomplish rescues, but, clearly, and crucially, unless otherwise directed by higher authority.
“The logic of this, including as it applies to the actions here in question, is in view of this court highly compelling and sufficient to be exclusionary. The obligation to rescue, as expressed in every instance and imperative cited by the defense, was—in fact, in law and in deed—accepted by Naval command at a higher level than Athena and her captain. Athena was an organ within the whole, no less subject to the direction and discipline of higher authority than a boatswain’s mate in a dinghy during a rescue would be subject to the order of the commanding officer of the vessel from which he had launched.
“The higher in the chain of command, the broader the view and the greater the knowledge of other demands, resources, and consequences. We hardly need say that the ships, planes, and special forces of both the United States and its allies were in the area and potentially available; that, once landed, the hostages were in the AOR of AFRICOM, the assets and plans of which Athena, especially as she was entirely without communication, could not have been aware. Nor could Athena have been aware of the needs and situation of American forces in the relatively nearby zone of conflict, or of the diplomacy involving allies, neutrals, and enemies.
To reiterate so as to be absolutely clear, obligations under the Geneva Conventions, Second and prior, and under Naval Regulations, Article Zero Nine Two Five, Section one—the court stresses—had been accepted and met by higher authority. Athena, as an instrument of that authority, was not entitled or privileged to carve out a separate justification for independent action.
“Therefore, the court has found that the orders, clear on their face, were binding. And therefore, in regard to Articles Ninety-Four, Section one, b., two, and the General Article, One Hundred and Thirty-Four”—here, Admiral Porter paused, some thought, with deep regret—“Captain Stephen Rensselaer, this court-martial finds you . . . guilty.
“Sentencing will take place here on twenty-two January at zero-seven-hundred. The prisoner will be escorted back to Naval Consolidated Brig, Chesapeake.”