High Crimes

The general’s lawyer cupped a hand in front of his mouth and whispered something to his client. General Marks, his composure regained, looked up and said blithely, “Upon advice of counsel, I decline to comment.”

“Wait a second,” Claire said. “Are you taking the Fifth?”

“Yes, I am.”

“Well, what — what are you taking the Fifth about?”

“About my testimony,” Marks replied evenly. “My lawyer has just advised me that I may have committed false swearing.” He turned toward Judge Farrell. “Your Honor, I haven’t seen that document in thirteen years. I testified here as to what I remembered of that document. And, frankly, I was ambushed.”

“Your Honor,” Claire said, “I move to strike the direct testimony of this witness, since we’re being denied the Sixth Amendment right to cross-examination.”

Farrell squinted at the general, then shook his head in disbelief. “Your motion is granted. The witness’s direct testimony is stricken.”

“Thank you, Your Honor. At this time, defense moves for a mistrial on the grounds that this witness’s testimony can’t be taken back. You can’t unring that bell.”

“Denied,” Farrell snapped with a red-faced scowl.

“In that case, Your Honor, we ask that you instruct the members that the chief of staff of the army is no longer a witness before this court, and the members may not consider any testimony he has given. I also ask that Your Honor inform the members that you, the military judge, believe that the chief of staff may have perjured himself, and that the members should put his testimony out of their minds, and that the military judge has advised the chief of his rights against self-incrimination under Article 31 of the Uniform Code of Military Justice, and the chief of staff has decided he will give no further testimony here before this court-martial.”

“All right,” Farrell said. He knew he had little choice. “You got it. I will so instruct the members. And, General, you’re excused, with our deepest apologies.”

Claire stared in disbelief as the general got to his feet, shrugged his uniform back into place, and strode off, attorney in tow.

“Uh, Your Honor,” Waldron said, “while we’re in this 39(a) session, I’d like to introduce our next exhibit, Prosecution Exhibit 4, for identification, which is a tape recording of the accused speaking on a tactical field radio on 22 June 1985, referring to the events he’s on trial for, as well as a verbatim transcript of that conversation.”

Claire looked at Grimes, then Embry, then Tom. All of them looked as astonished as she did.

“Your Honor, I don’t believe this!” she said.

“And the worm turns,” Farrell said. “What is this, Surprise Evidence Day? Give the Judge an Ulcer Day? Trial counsel, you got the tape right here?”

“Yes, we do, sir,” Waldron said. He handed the black cassette to the judge, along with a small tape player.

“Well, let’s hear it,” Farrell said.

Grimes said aloud, “The hits just keep on coming.”

The tape sounded as if it had been enhanced, the static filtered out, and so Tom’s voice was crystal-clear.

And it was Tom’s voice, there was no question about it.

“It was unbelievable. Just fucking unbelievable. I mean, I was just so fucking sick and tired of those peasants lying to us, you know? I just picked up my M-60 and blew ’em away, and it was just fucking great. Fuckin-A right I did.”

There was silence, and then the judge clicked off the tape recorder.

“That’s not me,” Tom said to Claire in a low voice.

“Where’s this from?” Judge Farrell asked.

“Defense Intelligence Agency made the original recording, Your Honor,” Waldron said. “Their signals-intelligence section. The copy was provided by CIA after a search of their SIGINT archives.”

“When did you get this?”

“Just today, Your Honor. At lunch.”

“How long you know about its existence?” Farrell asked.

“I was called this morning, but I didn’t believe it until I actually heard the tape at lunch today.”

“Whadda we got here, CIA versus DIA?” Farrell said. “Civilian spooks versus military spooks?”

Waldron replied, “This conversation was overheard by signals intercept, 123rd Signals Battalion, down in El Salvador, on 22 June 1985. Their communications receivers were automatically sweeping between certain frequency ranges, between four and five hundred megahertz. The accused’s conversation was made in the clear on a tactical field radio with a range of up to twenty miles.”

Claire’s mind raced. This could be no coincidence, the surprise memorandum immediately followed by a surprise tape. What was going on here? She turned to Tom. “You never said those words?” she whispered. Her stomach ached.

“Claire, that’s not me,” he said.

“It’s your voice.”

“That’s not me,” he repeated.

She rose. “Your Honor,” she said, her voice loud and emphatic, “this is trial by ambush. That tape was covered in our discovery request, and we should have gotten it long ago.”

“Your Honor,” Waldron said, “defense counsel just heard me say we just received the tape today, at lunch.”