Battlemind

by Michael Waddington

  "Well, they're lying."

  "I can't just go around calling people liars. I need some evidence to back it up."

  "I don't know what to tell you."

  "For once, you can start by telling me the truth."

  After I met with Jefferson, I grabbed an early dinner and returned to the Motel 6. I went through a ritual every criminal attorney knows by heart, identifying the strengths and weaknesses of the prosecution's case.

  I pulled out a yellow legal pad and drew a line down the middle. I wrote "Strengths," over the left column, and "Weaknesses," over the right. There were so many strengths I had to flip to a fresh sheet of paper. The prosecution's strengths took up two pages. The list of weaknesses was much shorter. I just confirmed what I had been thinking all day: We've got nothing.

  Turning the prosecution's strengths into liabilities was our only option. The first strength on the list was Judge Rake. Rake would steer this case in Paine's favor, and help guarantee Jefferson's conviction. I moved down the list to Strickland. This mystery witness had allegedly overheard Jefferson say he was going to kill Nassar, and I had no way to rebut his testimony.

  Not helpful.

  Then, I turned to the weaknesses. They all had to do with the CIA's involvement in the prison. If I could show that Nassar was in CIA custody at the time of his death, then I could create doubt about their entire case. The problem was, I had no solid proof to back up my theory, only speculation.

  Chapter 58

  On Monday, I arrived early for court, ready to argue. A row of reporters gawked at their cell phones while the soldier designated as bailiff for the day nervously fidgeted, waiting to call "all rise." Rose sat behind me. Reggie was absent. I hadn't seen or heard from him since we parted ways after the Article 32 hearing.

  Paine's team obnoxiously laughed and joked while we waited for the judge. Jefferson tapped my shoulder and pointed at the prosecution table. "What are they laughing about?" he said.

  "I don't know, but we're going to give them hell today." I tried to sound confident.

  Over the weekend, I had cranked out a few well-considered motions. One compelled the Government to disclose what CIA agents were at Sangar Prison from July through October 2002. I demanded the Red Cross photos that Rose had mentioned, and all other images of Nassar, dead and alive. I requested cleaning schedules for the cells, a list of the meals the prisoners received, and maintenance records. Everything.

  I knew it was a long shot, but I asked for the flight manifests of all the aircraft in and out of Sangar. It was an airfield after all. I asked for the records showing when Nassar entered and exited the prison and a list of guards who had access to him. According to Jefferson, the guards kept detailed logbooks regarding the VIP prisoners. Yet, Paine never provided them.

  Anticipating my strategy to paint Nassar as a bad guy, Paine filed a motion to prevent me from referring to him as a "terrorist," "al Qaeda," or anything else other than "the victim." Paine also sought to stop me from referring to Nassar's terrorist background. He argued that, even if Nassar was a terrorist, his past was irrelevant.

  At precisely nine o'clock, Judge Rake took the bench. The courtroom was silent as he shuffled through a stack of papers and organized them on his desk. "I carefully reviewed the motions filed by both parties and the pertinent law," he said. Then, he cleared his throat. "The defense motions are denied."

  "The CIA is not on trial," he reasoned. "The defense will not be permitted to grandstand and drag the Agency's sterling reputation through the mud." He denied our motion for the Red Cross photos, claiming that "for the sake of national security," they could not be released. He denied our request for the green logbook. "The defense is on a fishing expedition," he stated. Finally, he denied our request for the list of guards who had access to Nassar. His reason: "locating such records would be unduly burdensome to the Government, and unlikely to provide any tangentially relevant evidence."

  Meanwhile, Judge Rake granted Paine's request to prohibit me from calling Nassar anything but "the victim." Rake also ruled that we couldn't mention Nassar's terrorist history, or why he was captured and held at Sangar. "The United States abides by the rule of law," Rake said. "We treat all prisoners of war humanely and with respect, regardless of their background. Therefore, the fact that the victim was a suspected terrorist is not relevant and is highly prejudicial to the prosecution."

  After Judge Rake finished reading his rulings, I stood. "Your Honor, I respectfully request that you reconsider your rulings. It is highly prejudicial to the defense to allow Nassar, a murderous jihadist, to be portrayed as a choir boy."

  "I made my rulings, counsel." Rake waved his hand dismissively. "You wanted a trial. Now you have one, but I'm not going to let you turn this into a circus."

  "I don't know about a circus," I said. "More like a kangaroo court."

  With a solid smack of his gavel, Rake held me in contempt and ordered me into his chambers, along with the entire prosecution team. Once inside, he made me stand at attention as he scolded me for 20 minutes. By the time he finished, it wasn't even 10 o'clock. We were done for the day.

  The prosecution team filed out of the judge's chambers giddy, like children on the last day of school. Jefferson was gone, probably back at the Brig, enjoying the standard prison lunch, a baloney sandwich on white bread, and fruit punch. I packed my bag and made my way down the narrow staircase that led to the parking lot.

  On the way to my car, someone shouted, "Captain O'Donnell."

  I spun around and saw a young Army officer walking in my direction. His crisp camouflage uniform accentuated his tall, cut frame. "Who's asking?" I said.

  The man didn't answer until he was a few feet away. "I'm Lieutenant Luken," he said. "We need to talk. Privately."

  "About what, Lieutenant?"

  "Meet me at the Fort Custer bowling alley in 30 minutes," he said. "It's important."

  "The bowling alley?"

  "Yeah. It's empty this time of day. We'll need privacy. Be there in 30 minutes."

  I watched him turn and walk away. Though I was skeptical, I had nothing to lose, so I headed to the bowling alley.

  Located adjacent to a weed-filled parking lot that hadn't been paved in decades, the Desert Strike Bowling Center was a windowless, one-story brick building. The single car in the parking lot, a faded 1992 Oldsmobile Cutlass, hinted that the building was empty, aside from an employee or two. Inside, the 24 lanes were lit up as if they were anticipating a full house. The place was like any typical American bowling alley. The 1980s-era booths and the smell of sweaty feet and stale pizza reminded me of my youth.

  A few minutes later, Luken walked through the front entrance. "Let's take a seat." He pointed at a neon sign that said, "The Strike Lounge." Below the sign was a bar that served Miller Lite on tap and days-old popcorn by the bag.

  I picked a booth, and we sat facing each other. A stick-like woman in her mid-thirties limped toward us, wiping her hands on a rag that looked like it had been used to clean a lawnmower engine. Her deflated face was riddled with pockmarks. Her hair resembled a raccoon pelt. "Can I get you boys somethin'?" she asked.

  "Not at the moment," I replied with a smile.

  "Okay, darlin', let me know if you change your mind," she said and started wiping down tables.

  I locked eyes with Luken. "Now, what is this about?" I said.

  To start, Lieutenant Luken gave me his back story. He was a newly commissioned Army lawyer, fresh out of the University of Florida Law School. Fort Custer was his first assignment. Like all new JAG lawyers, he started at the bottom of the food chain in Legal Assistance, the Army's legal aid clinic. He wasn't involved in the Sangar trials but followed them in the news.

  After he explained his background, he said, "They're setting you up, sir."

  "Who's setting me up?"

  "Everyone."

  My stomach turned. If this was a joke, then Luken was an excellent actor. If it wasn't, then he needed to get to the point and quickl
y. "What are you talking about?"

  "I work in the Fort Custer JAG office, and I see and hear things." His eyes darted from side to side.

  "Like what?"

  "I need your word that you won't mention my name.

  "Sure."

  "The Military Judge has been meeting with the prosecution," he said. "They've been discussing your case."

  "How do you know?"

  "I've seen Judge Rake leaving Colonel Paine's office several times," he said. "I didn't think anything of it until this past Saturday."

  "Go on."

  "I came on post to run on the track. After my run, I showered in the locker room. That's when I overheard a conversation."

  "While you were in the shower?" I asked.

  "No, I was drying off, and some men came in. They were talking, using the urinals, normal stuff."

  "Who was it?"

  "It was Colonel Paine and Judge Rake. Someone else was there too, but I didn't recognize the voice."

  "Did you see them?"

  "Yes. Through a gap in the curtain."

  "You're sure it was them?"

  He nodded.

  "Did they see you?" I asked him.

  "No. I stayed behind the curtain. They never came back there."

  "What were they talking about?"

  "Colonel Paine was talking about you and how you are trying to get your 15 minutes of fame."

  "And Judge Rake?"

  "He called you an incompetent imbecile. He told Paine he would shut you down hard on Monday and send you back to where you came from with your tail between your legs."

  "What else?"

  "They joked about finishing the motions hearing in time for a noon tee time," he said.

  I glanced at my watch. It was 11:15 a.m. I exchanged cell numbers with Luken, jumped in my rental car, and hauled ass out of the parking lot. I had a golf game to catch.

  Chapter 59

  After I left the bowling alley, I realized I had no idea where the golf course was. In all my time here, I had never noticed it. The only green grass I'd seen in El Paso was the parade field next to the courtroom. After I stopped and asked for directions, I continued toward the Army's Eisenhower Golf Complex, an island of green surrounded by a sea of brown dirt. I pulled into the course parking lot and parked in an empty spot near the driving range.

  Inside the clubhouse, I asked the golf pro if he had seen Paine and his guests come through. "Oh, yeah. They're playing the front nine on the Sonora Course. They're only a threesome, so they'll probably squeeze you in. We're running a little behind today. Problem with one of the greens mowers. We're usually right on time-"

  I left him mid-ramble and contemplated my next move. I fiddled around the shop until the guy at the desk wandered over to talk to someone. I slipped the tee sheet out from under the clip and stuffed it in my pocket.

  I hustled out the back door and followed the signs toward the first hole. When I rounded the golf cart shack, I saw Paine, Rake, and some guy in a lime green shirt clearing the first tee, each man pushing a wheeled cart. I didn't know whether to be appalled or impressed. It took some guts for a judge and a prosecutor to openly fraternize in the middle of a high-profile murder trial.

  On the way to my car, I read the tee sheet. It was in black and white: Colonel Bradley Rake, Colonel Ryan Beaver (the Commanding General's lawyer), and Colonel Covington Paine had a noon tee time. Luken wasn't lying. Now I had evidence of - at the least - judicially inappropriate behavior. With a little luck, I might be able to get Judge Rake off the case after all.

  From the golf course, I drove to the Brig. I wanted to get Jefferson's feedback because my next move would impact his case, for better or worse. While I waited, I thought about my options. First, I could do nothing, and we would go forward to trial with Rake as the judge. This was a bad idea. I could also confront the judge privately and ask him to recuse himself because of a conflict of interest. Not a viable option. Rake would never step down.

  My last option was to file a formal request demanding Rake's recusal, but as the saying goes, "When you shoot at a king, don't miss." I could expect significant blowback if I accused a military judge of colluding with the prosecution. None of the options were ideal. However, the last option was my best bet, even though it was going to upset a lot of people.

  After waiting 20 minutes, I approached the Brig's reception booth. Behind two inches of bulletproof glass sat a guard, reading Teen Vogue. She was barely old enough to drive a car. Every time I visited the Brig, I had to deal with her charming personality. She always seemed stressed out, even though I never saw her do anything aside from picking up the phone and announcing my presence.

  I knocked on the glass. "Specialist Simbach, I've been waiting for half an hour." I tapped my watch. "Are they getting Sergeant Jefferson or not?"

  Simbach lifted her head in slow motion. "He's at chow," she said in a depressing tone. "We can't get prisoners while they're at chow. Safety, ya know."

  "What time is chow done?"

  "Today?"

  "Yes, today," I said, trying to keep my cool.

  "Hmmm." She picked up a small notepad and flipped through it, taking her time to scan each page. After a few minutes, she said, "Today, chow ends at 1300 hours. We had an inspection, so chow was later." She pointed to a clock on the wall behind me. "It's only 1250 hours. You gotta wait 10 more minutes."

  I shook my head and walked to the vending machine next to the bathroom, inserted eight quarters, and pushed the button for a bottle of water. After a few sips, a voice called on the intercom, "Captain O'Donnell, Sergeant Jefferson is ready for you."

  According to the clock, it had been two minutes. I screwed the plastic lid on the bottle and prepared to be searched. After some buzzes and greased metallic clicks, Simbach came out with a burly male sergeant with a lazy eye. I stepped through a metal detector as Simbach turned my bag inside out.

  "Looky, looky." She held up the almost-full bottle of water, shook it, and flung it into the trash.

  "I wanted to finish that," I said.

  Simbach grinned. "It's contraband, sir. Sorry."

  The sergeant tapped a metal sign on the wall with his knuckles. "No outside food or beverages. Them's the rules."

  Assholes, I thought.

  The sergeant keyed his radio. "All clear. Open the main door." The metal door clicked, and the sergeant pushed it open and waved me through.

  I found Jefferson in the visitor's room, in high spirits. He beamed as I told him about Judge Rake and Paine. "I knew it," he said. "This is all a big setup."

  I gave him a half-hearted nod.

  "What's the next step, Captain?" he asked. Jefferson's nostrils flared as I explained our options. When I finished, he leaned forward and said, "Take those fuckers down. All of 'em."

  "Done." I shook his hand and launched what seemed like a kamikaze mission to remove Judge Rake. I called Rose the moment I walked out of the Brig. "I have a story for you," I said.

  "I'm listening."

  "I'm filing a motion to recuse Judge Rake. He's been colluding with the prosecution."

  "That doesn't surprise me."

  "Once I file it, I'll send it to you."

  "Thanks," she said and hung up the phone.

  Now, I had to tie up some loose ends. I made a final call before I filed the request to disqualify Rake.

  "Luken," the voice on the line said.

  "This is Captain O'Donnell. From the Jefferson case."

  "I know who you are. What's up?"

  "I need you to write a statement describing what you saw and heard."

  "Sir, I don't want to get involved."

  "You're already involved," I said.

  "I really don't-"

  "Listen, Lieutenant. I tracked down some additional evidence. You're not the only witness."

  "Really?" He sounded surprised.

  "Yeah. They were golfing and drinking together at the golf club. Lots of people saw it," I said with conviction.

  "T
hen, why do you need me?"

  "Because you heard them discuss the case."

  "I don't know-"

  "Lieutenant, we can do it the easy way or the hard way," I said. "You can either write an affidavit, or you'll be subpoenaed to testify."

  "I'm not testifying."

  "Then, your only option is to write a statement."

  "Fine. Meet me in my office in 30 minutes. If, for any reason, you don't need my statement, don't use it."

  "I promise."

  On my way to Luken's office, I wondered if he would follow through. Many people talk about truth, justice, and doing the right thing, but most people only do the right thing when it's easy. I hoped Luken was an exception.

  When I arrived at his office, Luken was typing on his computer. I entered without knocking. "Almost finished," he said, without looking up. I took a seat and examined the plaques on his walls. From what I read, he'd served as an enlisted infantryman, including time with the 75th Ranger Regiment at Fort Benning, Georgia. In a photo on his desk, he posed with a brunette woman.

  "Is that your wife?" I pointed at the picture.

  "Yeah. Her name's Megan. We got married last year," he said as he typed.

  He printed the statement when he finished, and I read it. "Perfect," I said. "Let's hope this doesn't backfire."

  His face turned ashen. "What do you mean?"

  "We're accusing two senior Army officers of misconduct," I said. "They'll deny it, and we'll get some backlash."

  "I saw what I saw. Why would I make this up?" Luken had a point. Why would a brand-new lieutenant make up this story and risk his career? It made no sense. "Do what you need to do," he said. "I'll live with the consequences."

  I didn't sense any hesitation in his voice. "Go ahead and sign right here, swearing that this statement is the truth," I said, handing him a pen. After he signed, I thanked him and said goodbye. As I walked to my car, I had a bad feeling about what was about to happen.

  Chapter 60

  Back at my motel, I wrote the motion to recuse Judge Rake and filed it, via e-mail, with the Court. I then forwarded the motion to Rose, along with the attachments: Luken's sworn statement and the golf roster.