Captain Hayes paused, then spoke again in the same controlled voice. "I was very disturbed by the charge, but I was shown evidence which convinced me it was very likely true. Over the next several days, I coordinated actions with NCIS to attempt to identify the officer involved. These attempts failed. NCIS then suggested placing a tap on one of the terminals aboard my ship to detect any illegal activities, and arranged for special classified material to be delivered to the ship to serve as bait. I heard nothing more until the afternoon of 20 August, when I was informed by my ship's legal officer, Lieutenant Sinclair, that Lieutenant Pullman had just been arrested as he was leaving the ship."
Another pause. "I immediately contacted NCIS and was told of the coins which had been found in Lieutenant Pullman's possession. I notified my officers and told them to cooperate with any follow-up NCIS investigation."
Commander Carr nodded. "Thank you, Captain. Can you explain which evidence shown to you by NCIS convinced you that espionage had taken place?"
"Yes. I can. NCIS had conclusive proof that the operational orders under which my ship had just sailed, the orders we were following off that asteroid, had been provided to the South Asian Alliance."
Commander Carr turned quickly, facing midway between the judge's bench and the defense table, and speaking while David Sinclair was still rising. "Your Honor, Trial Counsel would like the enter into evidence at this time a list of classified material which U.S. government agencies have certified as having been compromised to the South Asian Alliance."
David Sinclair finished standing up. "Is the defense correct in assuming the orders just cited by the witness are among that list?"
"Yes."
"Your Honor," David Sinclair continued, "while the defense recognizes the need to protect the means and methods by which the U.S. government collects intelligence, it is nonetheless of some concern that we have been presented with the list but provided no means to verify it."
Judge Campbell eyed the Defense Counsel. "Are you making an objection?"
"I am asking the court to rule on the admissibility of evidence which has been provided in such a way that the defense is unable to verify that evidence. The defense doesn't know the means by which the list was compiled, doesn't know the criteria used for placing items on the list, doesn't know the standards applied to assessing those criteria and doesn't even know exactly who compiled the list. Your Honor, Lieutenant Pullman has the right to confront his accusers. That is a fundamental principle of American justice. This list was compiled by individuals who are among Lieutenant Pullman's accusers, but those accusers remain anonymous, unavailable to appear and unavailable to be questioned in Lieutenant Pullman's defense. The defense submits that allowing this list to be entered into evidence will significantly prejudice Lieutenant Pullman's ability to defend himself against the charges brought against him."
Judge Campbell pursed her lips and sat for a moment without speaking. "Trial Counsel? What do you say in response to the Defense Counsel's argument?"
Commander Carr spoke firmly. "Your Honor, the government believes that this list represents a matter of fact, not an accuser. It simply lists documents confirmed to have been provided to a foreign country, documents which the government intends proving were provided to that foreign country by Lieutenant Pullman."
The judge sat silently for several seconds longer. "I am still troubled by this. American justice is not founded upon the use of secret evidence."
"Your Honor," Carr protested, "this is not secret evidence. Lieutenant Pullman's lawyers have been allowed to see this list after signing the appropriate nondisclosure agreements. They know what it contains."
"But they do not know how the list was put together. They have no means to question or refute the contents of the list. Is the government prepared to offer such information to the defense?"
Commander Carr shook her head. "Your Honor, I am not authorized to make such an offer. Extremely sensitive intelligence sources and methods are involved."
"Then how is this court to ensure the evidence is indeed a matter of fact, as Trial Counsel claims, and not an accuser at one remove, as Defense Counsel claims?"
This time, Carr nodded with every appearance of reluctance. "Your Honor, I am authorized by the government to provide you with detailed information on the means used to compile the list if absolutely necessary to the prosecution of this case. The government is prepared to give the court the necessary information under appropriate classification safeguards to allow the court to determine that this list is verifiably a matter of fact."
David Sinclair frowned and look back at Lieutenant Owings. Owings rose to his feet and spoke for the first time. "Your Honor, with all due respect, the court is not the defense counsel. You do not represent the interests of Lieutenant Pullman."
Judge Campbell nodded. "That's true. However, the interests of Lieutenant Pullman are not the criteria used for purposes of determining the admissibility of evidence, as you know. It's the court's job to decide which evidence can be brought to bear in this trial. Therefore, I will accede to the government's request and receive a private briefing on the means used to compile the government's list of compromised classified material."
David Sinclair spoke again, spreading his hands. "Your Honor, while Defense Counsel does not wish to call into question the court's integrity-"
"Good for you," Campbell noted dryly.
"— I nonetheless must object to this procedure. If there are reasons why a civilian such as myself cannot be provided with this same private briefing, surely Lieutenant Owings can be given that access."
Commander Carr shook her head again. "I'm sorry, but the government is not prepared to agree to that. Lieutenant Owings lacks the necessary background investigations and clearances, as did Lieutenant Pullman even before his arrest."
"Your Honor-"
Judge Campbell held up a restraining hand. "Defense Counsel's objections and concerns are noted. The court will fairly evaluate the nature of the government's evidence and then rule on its admissibility. Is the government prepared to continue its arguments at this time without reference to the material on the list, or must the court-martial be suspended until my ruling?"
"The government is prepared to continue, Your Honor."
"Then do so."
Commander Carr faced Captain Hayes, who had listened to the argument without apparent emotion. "Captain, Lieutenant Pullman was a member of your crew. What is your assessment of him as an officer?"
Hayes frowned. "To be perfectly frank, Commander, Lieutenant Pullman was a member of my crew for a very limited period of time. I only had the opportunity to develop preliminary impressions."
"Please share those impressions."
"Lieutenant Pullman seemed to be a capable officer."
"Would you describe him as knowledgeable?"
"Objection, Your Honor." David Sinclair gestured with one hand toward Commander Carr. "Trial Counsel is leading the witness."
"Objection sustained. Let the witness use his own words, Trial Counsel."
If Carr was abashed, she didn't show it. "Yes, Your Honor. Captain Hayes, please provide a more detailed description of your impression of Lieutenant Pullman as an officer prior to his arrest."
"All right." Captain Hayes frowned again, this time in thought. "Lieutenant Pullman gave me the impression of being capable, as I said. His performance of duties was at least competent. He learned his new responsibilities as communications officer quickly. He seemed to get along well with his shipmates and presented a good military bearing."
"Did Lieutenant Pullman make many mistakes?"
"Not to my knowledge. I didn't personally observe any significant errors on his part."
"Did he demonstrate awareness of standard procedures on your ship, including the proper handling of classified material?"
"Yes, I believe he did."
"In your professional assessment, Captain Hayes, did you believe Lieutenant Pullman was sufficiently well-trained and
capable that he could be trusted to carry out tasks without committing serious errors?"
"Objection." David Sinclair shook his head. "Your Honor, it appears that Trial Counsel is attempting to get the witness to comment on hypothetical situations."
Carr shook her head in turn. "Your Honor, as commanding officer of the USS Michaelson it was Captain Hayes' responsibility to make such assessments of all his officers. It is not a hypothetical situation since such judgments are required on a constant basis."
Judge Campbell thought again, then looked toward the members' table. "I'd like the opinions of the members on this matter since it deals with issues of command responsibilities and the court doesn't have that experience. Do you believe such an assessments are made routinely as a part of daily command responsibilities?"
Captain Nguyen, Commander Sriracha and Lieutenant Kilgary immediately nodded. Lieutenant Commander de Vaca, after clearly thinking for a moment, nodded as well. Lieutenant Mahris nodded apparently just as soon as he realized that Captain Nguyen was doing so. Captain Nguyen looked to either side to tabulate the responses, then nodded again to the judge. "It's unanimous. Any commanding officer has to make such assessments every moment of every day. That is why commanding officers are held accountable for failures by their subordinates. They're responsible for deciding whether or not those subordinates can be trusted to carry out tasks."
"Thank you, Captain," Judge Campbell stated. "Objection overruled. Continue, Trial Counsel."
"Thank you, Your Honor. Captain Hayes, would you like me to repeat the question?"
"No, that's not necessary." Hayes' mouth worked for a moment. "Yes, I did assess Lieutenant Pullman as being well-trained and capable enough to carry out the duties of a junior officer on my ship. If I'd thought he wasn't to be trusted to do his work or stand watches properly, I would've relieved him of his duties and had him transferred off of the ship."
Carr leaned closer to the witness stand, her eyes locked on Hayes. "Captain, did you feel you had any reason to doubt Lieutenant Pullman's understanding of security regulations?"
"No. None at all."
"Are you confident he knew it was contrary to regulations to download classified material onto portable media using his stateroom terminal?"
"Yes, I am."
Carr stepped back, raising her data pad slightly again. "At this time Trial Counsel would like to enter into evidence the security briefing papers signed by Lieutenant Pullman when he was granted his clearances, and the nondisclosure agreement signed by Lieutenant Pullman at that same time, which spells out the penalties for unauthorized disclosure of classified material. Trial Counsel would also like to enter into evidence the page from Lieutenant Pullman's service record which certifies that he attended and passed standard security indoctrination training."
Judge Campbell, leaning her chin on her hand again, twisted her head slightly to look toward the defense table.
David Sinclair shook his head. "Defense Counsel has no objection."
"Then the court orders those documents be entered into evidence. Continue, Trial Counsel."
Commander Carr faced Captain Hayes again. "Captain, did you ever, by any means whatsoever, order or instruct Lieutenant Pullman to download classified material onto portable media?"
"No, I did not."
"Are you familiar with the list of classified material contained on one of the coins found in Lieutenant Pullman's possession?"
"I am."
"Did you ever, by any means whatsoever, order or instruct Lieutenant Pullman to download any or all of those specific items of classified material onto portable media?"
"No, I did not."
"Did you ever, by any means whatsoever, order or instruct or approve of Lieutenant Pullman's removing from your ship coins containing classified material?"
"No, Commander. You can ask any officer in my wardroom. I don't permit or encourage my officers to violate security regulations."
"Thank you, Captain. No more questions."
David Sinclair stood a ways back from Captain Hayes, his posture respectful but not submissive. "Captain Hayes, I understand the commanding officer of a warship deals with a tremendous quantity of decisions and actions every day. Is that a fair statement?"
Hayes gave David Sinclair a sidelong look, but nodded. "I believe that's a fair statement."
"Have any of your orders, statements or instructions ever been misinterpreted or misunderstood?"
"Perhaps I should explain to you that orders are routinely repeated back, so that I and other officers can be sure they're properly understood."
David Sinclair smiled, unabashed. "Thank you, Captain. I do understand the system is designed to minimize the chances of misunderstandings. But no system is perfect. What I asked was whether, in practice, any orders, statements or instructions of yours ever have been misunderstood."
Captain Hayes didn't look happy. "I can't honestly say that has never happened."
"Has anyone in your crew ever done anything, believing it was what you desired, even though you were sure you had given them no such instruction?"
Hayes spent a moment watching David Sinclair, then nodded. "That sometimes happens."
David Sinclair looked appreciative. "Captain, you have testified that in your opinion Lieutenant Pullman could be trusted to do his work. That he was capable, competent, and intelligent. Do you believe a trustworthy, capable, competent and intelligent officer would download classified information in the manner described without believing that his actions had been at least sanctioned, if not ordered, by his superiors?"
Paul looked at Commander Carr, expecting her to object, but though she frowned, Carr stayed seated and said nothing, watching Captain Hayes intently.
Captain Hayes sat back slightly, looking at David Sinclair and clearly thinking through his response.
"Captain?" David Sinclair prodded.
But Hayes refused to be rushed. After a few more seconds he spoke carefully. "I believe an officer who was believed to have all of those traits would be capable of such an act if they were motivated by a desire to circumvent security requirements for their own purposes."
Commander Carr smiled briefly.
David Sinclair nodded several times. "Thank you, again, Captain. But my question was whether or not an officer you yourself have described as being trustworthy, capable, competent and intelligent could conceivably take such an action in error and not through deliberate intent."
"No, I don't think so." Hayes shook his head, giving David Sinclair a hard look. "This isn't a minor matter, and as I believe has already been discussed earlier, downloading classified material isn't easily accomplished. I would expect a trustworthy, capable, competent and intelligent officer to know better, even if he did think I wanted it."
David Sinclair didn't let any disappointment over Captain Hayes' answer show. "Captain, when your officers fail to carry out your wishes, do you make your displeasure known?"
Paul saw that Captain Hayes couldn't quite suppress a small and brief but ironic smile. He wondered how many others in the courtroom, all of whom had served under their own commanding officers, had the same reaction.
Hayes nodded. "I've been known to express displeasure." This time a murmur of laughter sounded in the courtroom. Judge Campbell glared around, bringing instant silence.
David Sinclair smiled himself, as if he were telling an inside joke. "Do your officers seek to avoid your displeasure?"
"I believe they do, yes."
"Is that a strong motivation?"
"You'd have to ask each officer in the wardroom, but I doubt it's their strongest motivation. That's not how I try to motivate my crew. I don't lead with a whip."
David Sinclair leaned closer, his expression serious now. "But you do use a whip, metaphorically speaking, when you believe it necessary."
Captain Hayes hesitated, then nodded. "Sometimes it may be necessary."
"And do officers and crew members sometimes act hastily, without thinking
their actions through, in an attempt to avoid your displeasure?"
"I can't say that's never happened."
David Sinclair smiled briefly again. "Conversely, your officers seek your approval, correct, Captain? Your approval of their work."
"I would hope so," Hayes agreed.
"That approval not only affects their day-to-day life on your ship, but also their long-term careers, doesn't it? Those officers who gain your approval receive good marks on their evaluations. They get promoted, they get good orders to new assignments."
Paul barely kept from making a small but probably noticeable sound of derision. Like my marks got me good orders.
But Captain Hayes nodded again. "That's true."
"Have any of your officers ever exceeded your orders in a honest attempts to gain your approval?"
Hayes twisted his mouth, but eventually nodded once more. "I'm sure that has happened."
David Sinclair came close to Captain Hayes. "Captain, have any of your officers or other crew members ever done anything downright stupid in a misguided attempt to earn your approval or avoid your displeasure?"
"Again, I have to admit that sort of thing happens on rare occasions."
"Thank you, Captain. No more questions."
Commander Carr waited until David Sinclair had sat down, then stood with every appearance of calm confidence. "Trial Counsel wishes to redirect. Captain, have any of the misguided incidents just described which may have taken place involved major or serious issues?"
"No. Of course not."
"No hazarding of the vessel? No danger to human life?"
"There is no possibility that any of my crew, no matter how misguided, would believe I would approve of such actions."
"Violations of major rules and regulations?"
"Certainly not to my knowledge. There's a common sense factor that needs to be applied here. No one capable of occupying any position of responsibility could believe that I'd approve of something like that. I've never given them cause to believe such a thing."
"Never? You're certain?"
"Absolutely certain." Hayes had reddened as he spoke, his eyes flashing. "I'd be totally remiss in my responsibilities if I'd ever let anyone believe I'd condone, let alone approve, such actions."
Against All Enemies ps-4 Page 20