The Night Crew (8 page)

“Thank you for telling me how I think, Katherine.”

“Well . . . it’s hardly a challenge.” She smiled to indicate this was a joke; the smile looked forced and insincere. “I’m just saying that our best defense at this point might be one that makes you squeamish.”

“You make me squeamish.”

We seemed to be at an impasse here. We had had this discussion many times before, starting as law students at Georgetown and on through all the years I’d known her, and we had never settled it yet. Katherine, to put it mildly, was a power-bashing leftie. I had never been accused of anything close to that.

But I wanted to go on record, and said, “Hard as it might be for you to accept, the army is not a machine and the uniform is not a mental straightjacket. A lobotomy does not come with the oath of service. The concept of free choice is alive and well. Illegal or immoral orders can be refused, and, in fact, the army expects, even encourages you to do so. It doesn’t matter if you’re the lowest ranking private in the army, if anybody of a higher rank tells you to do something morally or legally repugnant, you have the right and the obligation to tell them to fuck off.”

“Did you check Lydia’s IQ yet?”

“I wasn’t aware she has one.”

“Ninety-two. So here we have a young girl with a lousy education, below average intelligence, a backcountry rural upbringing, poor self-image, possibly a few impulse control issues, thrown into something much bigger than she could possibly understand.”

“Are we talking about her or you?”

“Screw-off, Drummond.”

Two points for me. “Katherine, I understand what you’re saying but those fall under the heading of extenuating and mitigating circumstances, issues you raise
after
a conviction. Base your defense on those concerns, and Lydia’s going to spend her old age crapping granola in Leavenworth latrines.”

“Please expand on your reasoning.”

“According to the testimonies, these activities spanned over a month-long period of fun and games—a full month of Lydia, June, and Andrea entering the prison at night and playing hide-the-willy with the prisoners. It wasn’t a one-night splurge fueled by alcohol or drugs, or a bout of temporary, collective insanity, nor was it some sudden emotional lapse. It was premeditated, prolonged, deliberate.” I looked at Katherine and noted, “The only relevant issue was whether they knew right from wrong.”

“And you believe they did?”

“I believe all young girls are taught not to pee on men’s faces. They are taught that penises are not toys. They are taught to keep their clothes on in front of males, except when in the presence of lovers and gynecologists. Now imagine, if you will, that these were male guards in a female prison, and they engaged in the same kinds of kinky, degrading, sexually aggressive behavior. In that instance, do you think you could convince seven reasonable men and women that a slightly below average intelligence and a low self-image justified acting out such impulses?”

“Is that what you think?”

“What matters is not what I
think
, what matters is how it will be pitched and received in a courtroom. And I believe we’re going to discover even more interesting perversities, more fantasies indulged in the dead of the night. Unless you have some reason to believe that Lydia fails the M’Naghten qualifications, I suggest you drop that line of defense.”

The M’Naghten standard, as Katherine well knew, is the old English criteria that remains the foundation for modern legal reasoning regarding moral responsibility. It has two parts: did the defendant cognitively understand that what he or she was doing was wrong; and, two, was the defendant so mentally impaired, by mental disease or profound defect, that he or she lacked the mental gravity to select right from wrong?

Following that line of thought, I asked Katherine, “Has she been psychiatrically examined yet?”

“She’s scheduled to be tested the day after tomorrow.”

“By us, or by the government?”

“Tomorrow’s the government turn. The next day is ours. Dr. Theodore Erickson is coming up from New York City.”

“Is he good?”

“Better than good, Sean. He’ll be our expert witness. I’m confident he’s better than anything the army can drag up on the stand.”

I looked hard at Katherine. “Here’s a good piece of advice. Don’t assume all army lawyers are dumb knuckle-draggers and don’t assume all army docs are incompetent quacks. It’s no good for our client.”

Katherine evaded this subject, perhaps out of consideration to the only army lawyer within earshot. She said, “I have scheduled appointments with a military prison consultant and June Johnston. Want to come along?”

I was tired of reading, and ready to begin meeting the characters directly involved in this case. I got up and followed Katherine out to the Toyota Prius, which was still sitting by the curb, not yet stolen, though I had left it unlocked with the driver’s door ajar.

Note to self—next time leave a large, welcoming invitation on the windshield.

Chapter Eight

We drove down the hill and hooked a right, then parked and entered a small eating establishment called Shades. Shades had the look and feel of a neighborhood bar/diner with an eating area, booths, and so forth. It was like a charming jump back in time to the fifties, and the restaurant was filled with a mixture of grizzled locals—many of whom looked like they had been there in the fifties—and a number of clean-cut, short-haired, muscular young men in civilian clothes who were still easily recognizable as soldiers.

Katherine led me to the back where an older-looking gent with short hair was hunched over a table, sipping from an iced tea.

He jumped up as we approached, pushed out a hand, and shook with Katherine. Katherine did the introductions. “Fred Norell, this is Sean Drummond, my JAG cocounsel.”

Then to me, she said, “Fred retired last month from the MPs. He was a lieutenant colonel on the staff of the corps commander in Iraq.”

Fred and I spent the typical man moment sizing each other up. Truly, men are like dogs; we don’t get down on all fours and sniff one another’s butts, but probably only because we can’t get away with it. Fred was a large man, perhaps 6'4", thin and fit, with a severely cropped crew cut that could only have been inflicted by a military barber. He had what you would call a manly, seasoned face, tanned, prematurely wrinkled skin, narrow, inquisitive eyes, uncommunicative mouth—the face of a man who had seen something of the world.

He indicated for us to be seated, then he and I spent another brief interlude becoming acquainted. He was older than me, closer to fifty than forty, wife, three kids, and had experienced the typical career pattern of a senior military police officer. Troop service in Germany and Korea as a junior officer, then his career veered into penal duties, including several stints at the confinement facilities at Fort Knox and Fort Carson, graduating, eventually, to the big house at Fort Leavenworth.

Katherine interrupted this hale-fellow-well-met moment and shifted us into gear, informing me, “Fred has agreed to be an expert defense witness. Further, he’s agreed to be an unpaid consultant to our team.”

This was interesting, both that a career officer agreed to testify on Lydia’s behalf, and also that he was waiving remuneration for the service.

I asked Fred, “What was your job over there?”

“I was on the multinational corps staff in the operations office. It was a long, hard year. Specifically, I was the planner for prison operations.”

“I’ve never heard of that position. Was it unique?”

“It was created just for me.” He appeared to understand that this required an explanation and he provided one. “Understand that everything in Iraq after the initial invasion was an unmitigated mess. Nobody planned for an occupation, an insurgency, or a civil war. If you haven’t been there, you’ve at least read the papers and seen the news. I’m sure you understand. I was one of the firemen.”

In fact, I had there been there, very briefly, on a highly classified mission I didn’t want to discuss in front of Miss-You-Know-Who.

So I nodded, which Fred took as an indication to continue. “Everything in the theater and the army was in chaos. Iraq exploded in violence. I was the deputy commandant at the Castle, and got overnight orders to proceed to Iraq on the next flight.”

As I knew, the Castle was the nickname for the Disciplinary Barracks at Leavenworth, the crown jewel of the army’s penal system and its only maximum security prison. Only the hardest cases are incarcerated there, what army authorities call Level III inmates, meaning it takes at least a seven-year hitch to get a room reservation.

Fred continued, “Between the insurgency and the fact that Saddam had emptied his prisons before the invasion, crime and violence spun out of control. Field commanders didn’t know how to react and just began rounding up tens of thousands of young men, often indiscriminantly. The influx of new prisoners quickly overwhelmed our capacity to deal with it. In just a few short months, the corps had nearly two hundred thousand incarcerated.”

Katherine asked, “Where did they put them all?”

“You put your finger on the problem, Katherine. The Iraqi police had been disbanded or melted away. Saddam’s old prisons were there, but in terrible condition, and anyway the flood of prisoners was too great. The commanders on the ground were forced to improvise, creating impromptu camps, throwing up barbed wire and hiring contractors to feed them.”

I said, “Were there other problems?”

“Guards, Sean. The correct term is corrections specialists. Special training is required for this job, and MP branch has a course for this purpose at Fort Leonard Wood. But the graduates of that school were busy running our stateside penal facilities.”

“And what does this training entail?” Katherine asked. She had a notebook on the tabletop now and was taking copious notes. She always was a great student.

“Well . . . screening is a big part.”

“Screening for what?” Katherine asked.

“Mentality is part of it. No Napoleon complexes, no power issues, no dangerous insecurities. Most importantly, we look for a low explosion threshold, which roughly translates to a high level of tolerance, and a low level of sensitivity. A lot of prisoners have severe personality disorders and issues. Many are antisocial, some violently so. Dealing with them requires a special mentality.”

“That’s why they’re in prison,” I noted, unnecessarily.

“Yes . . . good point, Sean,” he said, and somehow managed to even make it sound like he meant it. “They’re usually young men, trapped in cells, denied sex or much normal entertainment, and they take this out on the only authority figures within reach. The guards.”

Like a lot of military men, listening to Fred was like reading a military manual. Everything tightly organized, clipped, and factual. Cops and soldiers, after enough time in uniform, I’ve noticed, learn to dispense with unnecessary words and even emotions. I had no doubt he’d make an excellent expert witness.

“What special training do they receive?” Katherine asked Fred.

“Everything from basic prison operations to prisoner treatment to special situations. Bear in mind that prison presents a lot of challenging situations that are unique. Handling riots, prisoners abusing one another, sexually and otherwise, gangs, medical issues, and of course, a number of these people are flat-out insane.”

As I mentioned before, Katherine’s legal background concerned issues dealing with homosexuality in the military, whereas mine had mostly been spent with criminal cases. I had been to Leavenworth to visit clients a number of times, as well as an assortment of other military confinement facilities. Those trips, however, stopped at the visiting room. Hollywood fantasies aside, neither Katherine nor I had any idea what duty must be like
inside
those places.

Fred continued, “Now throw into that mix that these prisoners were Iraqis. The language problem alone was huge and insurmountable. The cultural chasm was maybe worse. Here we had your typical young American boys and girls, totally blind to issues like touching or staring, which constitutes a severe insult to Iraqis, who are an unusually sensitive people.”

Katherine looked up from her notebook. “So you’re saying that Al Basari was primed for trouble?”

“No.” Fred paused and stared at Katherine. “That’s an understatement. I’m saying it was much worse than you can begin to imagine.”

I asked Fred, “How so?”

“For starters, the personnel shortages were a doorway to disaster.”

“Can you give us specifics?”

“Okay, here’s a general rule we use in planning. For every four thousand prisoners, it takes a full brigade of MPs, or roughly nine hundred soldiers, to guard them. I didn’t invent that, it’s doctrine based on the experience of more than a dozen wars and conflicts.” He allowed us a moment to absorb that ratio, then added, “At the time of the scandal, Al Basari contained around eighty-five hundred prisoners, yet there was only one battalion guarding the prisoners.”

Katherine did a quick calculation and said, “About three hundred MPs, right?”

“Yes, roughly. Should’ve been more like three thousand.”

I asked Fred a relevant question. “Did you ever visit Al Basari?”

“I did. On several occasions. I couldn’t get out of there fast enough. It was a hellhole, a veritable time bomb. The MP battalion was a National Guard unit. Good people, but not full-time soldiers, and the situation was hopeless—they lacked proper training and even a modicum of experience. Many were only recently reclassified as MPs to fill the gaping holes in military needs. Previously they’d been clerks, cooks, or mechanics. They were amateurs being asked to do the work of ten highly trained soldiers.”

“The whole theater was undermanned and under-resourced,” I noted, just as I was sure the prosecutor would also emphasize in court. “I don’t think that argument will elicit much sympathy from a court martial board.”

Fred’s face grew thoughtful. “You two have to make them understand.”

“How? What did the personnel shortages mean?” Katherine asked with her pencil poised to make more notes.

“Look, a cellblock shift typically works about three hours, then breaks for two or three hours, then maybe does one more three-hour shift. The breaks and controlled hours are crucial. You have to relieve the stress, give the guards the chance to blow off steam before they do something stupid or vindictive. Lower security prisons where the inmates are less challenging and aggressive might have longer shifts. But Al Basari was more tense than any prison I’d seen.”

“In what ways?”

“Take the temperature. A typical summer day in Iraq can be well over 110 degrees. Al Basari had no air-conditioning and lousy ventilation. It was a sweatbox in there, like working in a sauna. Imagine if you will, spending twelve hours in such an intolerable environment. It smells like human waste, the prisoners are angry and noisy, insufferable conditions for the guards and inmates. And if that weren’t bad enough, it was in the middle of a war zone, with occasional shelling and snipers.”

“What else?”

“Shifts ran up to twelve unbroken hours, seven days a week. Try to imagine twelve straight hours of abuse from the inmates, of numbing heat and frustration and physical and mental exhaustion.” He paused for dramatic effect, then added, “Now ask yourself why Elton, a lowly E-5, was put in charge of an entire block.”

Katherine bit. “Why?”

“Just as the guards were overstressed, the chain of command was stretched beyond all human limits. All over the prison you had junior enlisted working way above their paygrades. That ten-to-one ratio was even worse for the officers and senior noncommissioned officers.” To be sure we understood, he explained, “Look, a good prison functions on strong procedures, set routines, and absolute accountability. Those are the pillars . . . but none of that was present. The guards do their jobs because they know they’re being watched, they know the captain or lieutenant or a senior sergeant will pop in at unexpected moments. At Al Basari—that wasn’t happening.”

“So the chain of command broke down,” I suggested.

“You could put it that way.” He shook his head. “But they were set up to fail. They had undertrained guards, were scandalously undermanned, and were given an impossible mission in a nightmarish environment. You can’t judge Al Basari by any normal standards.”

“How would you judge it?” Katherine asked.

“To borrow a sports image, it was like showing up to play the New England Patriots with three high school football players.”

While Katherine and I pondered that comparison, he finished with the grim summary, “It’s no surprise that we got a scandal. The surprise is why there’s only one—and why it’s not worse.”