High Crimes

“The man had an M-60 in his hands, counselor. I was told that his head was pivoting all around, looking, and he would most certainly have sensed anyone moving toward him.”

“But your men must have had weapons, too, General.”

“Indeed.”

“What weapons did they have?”

“They had .45s. And I certainly wasn’t going to have them go up against an M-60 machine gun with a .45. He could have hit them much more easily than they could have hit him.”

“Did you order him to stop?”

“Yes, I did. Through Major Hernandez.”

“And?”

“Hernandez said, ‘He’s wacko, we can’t stop him.’”

She fell silent for a moment. He was good, and well briefed. And she knew this was going nowhere. He would continue to insist that he couldn’t have stopped Kubik, and he would be unshakable in his certainty. “General, in your opinion, would you have been within your rights as an officer to order your men to shoot Sergeant Kubik dead, if, as you claim, he was in fact massacring those eighty-seven civilians?”

“In fact, yes,” Marks said. “The Uniform Code of Military Justice permits the use of lethal force to save your life or the life of another.”

Claire winced inwardly. That was the right answer. He had just foreclosed the line of cross-examination she’d prepared designed to show that he’d been negligent as an officer and a commander — which could at least have damaged his credibility. So she tried again, coming back to the question of whether he could have killed Kubik. As she questioned the witness about this fictitious Sergeant Kubik that the prosecution was creating, she didn’t think of him as Tom. “General, isn’t it true that any of your men could have waited for the instant that Sergeant Kubik’s eyes were trained on his civilian targets, and simply aimed a Colt .45 and fired?”

The general exhaled noisily. “Counselor, I don’t know whether you’ve ever fired a gun — whether you’ve ever even picked up a gun — and I know you’ve never served in a war—”

“Move to strike as nonresponsive, Your Honor,” Claire interrupted.

“I’m afraid you opened the door to that with your theoretical question,” Judge Farrell said. “Continue, sir.”

“Thank you,” General Marks said. “Counselor, sitting in your comfy office at Harvard thirteen years after the fact, I suppose you could make that argument. But when you’re commanding a ten-man unit in conditions of war, it’s a different matter. There are chances you have to take, so there are chances you will not take. Perhaps you would have exercised superior judgment. I used the best I had.” He bowed his head. “We lost a number of Americans in El Salvador, counselor, for what the President of the United States, my commander-in-chief, deemed our strategic interests. Covert operations aren’t always pretty. But there’s a difference between the price of covert ops and what that evil man did. It sickens me what happened in that village — sickens me as an army man and as a human being.”

This was, Claire realized, one of the worst crosses she’d ever conducted, and not for want of preparation. She could see how moved the jury was. General Marks was a terrific witness, and an extremely well prepared one. It should not have surprised her.

But it was not over yet.

“General, a few moments ago you referred to the unarmed civilians. But is it possible that Sergeant Kubik believed they were in fact armed combatants?”

“No,” he replied flatly.

“Why not?”

“They weren’t in uniform, for one. They were lined up peacefully, and not making any hostile or antagonistic movements. And there were no weapons.”

“But isn’t it possible he might have thought he saw weapons?”

The question, she knew, would perplex the general. It seemed to point to a new theory of defense — that Tom had fired because he saw weapons. Whereas they had all along insisted that the entire incident was made up, implying that someone else must have done the shooting. She could see the general hesitating, and glancing furtively at Waldron. She stepped to the side deftly, placing her body in his line of sight.

So the general reverted to his customary arrogance. “No,” he finally said. “There were no weapons.”

“How can you be so sure?”

“Because, counselor, I had my XO inspect the bodies, and he found no weapons.”

“So you knew objectively, after the fact, that there were no weapons. But at the time, General, did you have any reason to believe the villagers had weapons?”

“None.”

“Your men saw no weapons.”

“Correct.”

“They saw nothing, no glint of metal, nothing that might make them even the slightest bit apprehensive that the villagers had weapons.”

“Nothing.”

“So they saw no weapons pointed at Sergeant Kubik, or any of your men.”

Waldron called out, “Asked and answered, Your Honor.”

“Sustained. Move on, counselor.”

“My apologies, Your Honor. Just wanted to be absolutely sure we were on the same page. General Marks, early on the morning of June 22, 1985, you sat down and wrote out an MFR, a memorandum for the record, isn’t that correct?”

“That’s correct.”

“Isn’t that unusual?”

“How so?”