Dillon nodded and smiled without speaking.
“Please, sit down. Join us. We were just discussing what to do about this Letter. The attack is scheduled for approximately thirty-six hours from now.”
Dillon felt a cold chill.
“Coffee?” the admiral asked as he took his seat.
“What attack is that, Admiral?” Dillon asked as he gestured to the messman with the coffeepot.
“Well, the attack on these terrorists on Bunaya.” Admiral Billings indicated a seat at the far end of the table. “Please sit there, Mr. Dillon.”
Dillon looked around. “I seem to have misplaced my bag.”
The aide spoke. “No, sir. That was taken care of. I gave it to Petty Officer Johansen, who put it in your stateroom.”
“My stateroom?”
“Yes, sir. It is my understanding that you are going to be here at least a day, maybe two, and we have you in a stateroom on the second deck.”
Dillon looked at him curiously. “Why two days?”
“It depends on the COD schedule, sir,” the aide said, looking to see if he was speaking out of turn. “We have you scheduled on the COD ashore tomorrow evening, but it may not be until the day after that, and if we are involved in the attack it may be even later.”
Dillon was taken aback by the thought of being aboard the carrier during the attack. It could be exciting to see his Letter of Reprisal in action, but it also brought the ramifications into sharp focus. Dillon sat down slowly, hoping to appear at ease. He tried to seem older and more sophisticated.
“Well,” said the admiral. “First, Mr. Dillon, let me introduce my staff to you.” He went around the table and introduced his chief of staff, his intelligence officer, his operations officer, and the rest. Dillon was surprised most by Beth Louwsma and had to force his eyes on to the next officer introduced.
“Mr. Dillon,” the admiral asked as a messman poured Dillon’s coffee into a porcelain cup with a blue anchor on it, “before we do anything else, I take it that you have brought the Letter of Reprisal with you.” He looked at the leather folder lying on the table next to Dillon. “Is that right?”
“Yes, sir, it’s right here,” he said, tapping the folder.
“Mr. Dillon, would you please read aloud that letter?”
Dillon raised his eyebrows, slightly surprised at the request, and then opened the folder.
The rest of the room grew deathly quiet. No more stirring of cups, no sipping of coffee; even the inevitable shifting in chairs had stopped, as every person in the room gave him their undivided attention.
He read the language, taken almost directly from the Letter of Marque and Reprisal issued by Congress and signed by James Madison in 1812. The flowery language had been toned down, but the flavor was the same. When Dillon finished he looked around the table. No one spoke.
“Well,” the admiral said, “there it is. Sounds like an op order, with timing, target, and objective. Any comments?” Some shook their heads gently; others did nothing. Beth Louwsma rubbed her finger around the top of her coffee cup without looking up.
“So the question for us, Mr. Dillon, is, should we do it?”
Dillon sat at the table and listened to the noises of the carrier: the loud aircraft directly overhead on the flight deck, the hum from the power plant somewhere below—the nuclear power plant—the air-conditioning, the conversations and rushed footsteps in the passageway on the other side of the thin metal door. Dillon felt the sweat under his arms, even though the wardroom was cold. He couldn’t tell if the admiral’s question was rhetorical, or whether he was truly expecting a reply. Was he looking for Dillon to say the obvious? To go over all his thinking, or the thinking of the Speaker? He finally spoke, hesitantly. “Yes, you should.”
The admiral drank deeply and set his cup down with a loud clank. “Why is that?”
Dillon sat forward slightly, keenly aware of all the eyes on him. “Because it comes directly from the Constitution and was lawfully passed by Congress.”
Billings nodded slightly, then reached for a folder that sat on the table. He opened it slowly and took out a one-page document. He began to read:
FLASH
F 072200Z FEB 01
FM SECDEF WASHINGTON DC
TO CTG SEVEN SEVEN PT ONE
INFO WHITE HOUSE SITROOM WASHINGTON DC
CJCS WASHINGTON DC
CNO WASHINGTON DC
CMC WASHINGTON DC
USCINCPAC HONOLULU HI
COMSEVENTHFLT
TOP SECRET // N03450 //
OPER / PACIFIC FLYER //
RMKS / THIS IS A MANDATORY ACTION ORDER //
1. YOU ARE HEREBY ORDERED AND DIRECTED BY THE PRESIDENT OF THE UNITED STATES THROUGH THE SECRETARY OF DEFENSE AND THE JOINT CHIEFS OF STAFF TO CEASE AND DESIST ALL EFFORTS TO LOCATE AND MONITOR THE PARTICIPANTS IN THE ATTACK ON THE PACIFIC FLYER.
2. YOU ARE HEREBY ORDERED TO WITHDRAW FROM THE JAVA SEA AND PROCEED IMMEDIATELY TO PEARL HARBOR.
3. YOU WILL NOT COMPLY WITH A REQUEST OR ORDER FROM CONGRESS BY WAY OF LETTER OF REPRISAL OR OTHERWISE TO LOCATE, ENGAGE, OR ATTACK ANYONE. ANY STEPS TAKEN BY YOU OR THE TASK GROUP UNDER YOUR COMMAND OR ANY OTHER OFFICERS SUBORDINATE TO YOU WILL BE A DIRECT VIOLATION OF THIS ORDER.
4. ACKNOWLEDGE RECEIPT OF THIS MESSAGE
AND YOUR INTENTIONS TO COMPLY. //
BT
Billings looked up and glanced quickly around the table as he finished reading the message. Nothing needed to be said. He sat up straight in his chair and rested on his elbows on the table. “Which wins? Your letter, or an order from the President and Joint Chiefs?”
Commander Mike Caskey and Messer Schmidt re-checked their switches as they turned the Tomcat toward the island. Caskey could see it clearly in the high afternoon sun. The objective was to get imagery so that the intelligence specialists could do mensuration on anything that was casting a shadow. One pass. That’s all it would take.
“We got good radar paint on the island, skipper.”
“Roger that. Anything unusual?”
“Nope. Not a thing.”
“All right, here we go,” said Caskey as he bunted the nose of the F-14B toward the horizon and went to full military power. The island was fifteen miles away. His objective was to pass by the island at six hundred knots, just under supersonic. There were no expected difficulties, but one lucky bullet from a ground-fired rifle could ruin their whole day.
Caskey loved flying the F-14. He had spent his entire aviation career flying F-14s and now was at his peak as commanding officer of an F-14B Squadron aboard the Navy’s newest carrier and he loved it.
“Range,” he asked Messer.
“Five miles.”
“Okay. This island isn’t very big so we ought to be able to get the thing in one pass. Remember to keep your RAW gear on to check for SAMs. Somebody thinks they may have some.”
“Roger that,” said Messer, looking to his left inside the cockpit to adjust the timing for the cameras.
“How does it look on the television?”
Messer adjusted the angle of the television sight unit, TVSU, in a chin blister under the nose of the aircraft. Its magnification allowed him to zoom in on the island and examine it via his internal screen. “I don’t see anything unusual at all, but this island is completely covered with foliage. I don’t know that we would see anything.”
Caskey said, “I’m going hot mike,” as he flipped a switch in his cockpit to activate the microphone inside his oxygen mask. They could hear each other breathe and could speak to each other without pressing any buttons.
“Remember where those concrete bunkers are supposed to be?”
“South side of the island, couple of miles in from the beach.”
“Keep your eye open in that direction.”
“Will do.”
“Camera on!” Messer announced.
Caskey went into afterburner to accelerate as they passed the island.
Messer heard a buzz in his heads
et and looked down at his indicator. “Skipper! SAM radar at one o’clock!”
Caskey looked at his one o’clock position to see any missiles coming their way. “Nothing in the air,” he said, his breath coming hard, his hands poised to slam the stick in whatever direction might be necessary to avoid a SAM. “Any launch indication?”
“Negative,” said Messer, his voice rising in pitch. “They’re just tickling us.”
“Roger that, keep your eyes open.”
“Roger.”
Caskey was thrown forward into the stick as the surface-to-air missile slammed into the F-14 just between the engines in the rear of the Tomcat. Sections of the engines and fuselage fell to the ground underneath the burning airplane. Their momentum carried them past the island and out over the dark blue ocean as Caskey fought the forces, leaned back, and pulled the stick back in a desperate automatic attempt to keep the Tomcat in the air. He traded some of his speed for additional altitude.
“You got it?” Messer asked, nearly panicked.
“Engines are overtemp. I’ll keep them going to get as far out as we can!” Caskey said through clenched teeth. “All the systems are failing. I’ve got two solid fire warning lights!”
Messer wrapped his right hand around the ejection handle between his legs. “Go to idle on both engines, turn the air source off. Check the lights!”
“No chance! We’re going to lose both engines—we just need to get away from the island.”
“Let me know when you’re ready! I’ll punch us…” Messer said as they lost electric power and their internal communications stopped. The Tomcat suddenly rolled violently to the left and pitched over toward the ocean.
21
“GOOD MORNING, YOUR HONOR,” DAVID PENDLETON said softly in the packed courtroom of the District Court for the District of Columbia. The judge could barely hear him and leaned forward as Pendleton spoke.
“Good morning, Your Honor,” said Jackson Gray, one of the senior litigators in the Department of Justice. “Jackson Gray, on behalf of the United States.” His round gold wire-rim glasses gave his large black face a look of intellectual intensity which was heightened by his closely cut beard. He glanced back at Molly, who sat quietly in the back of the courtroom.
“Good morning…” began the judge.
“Excuse me, Your Honor, but I think Mr. Gray misspoke,” interrupted Pendleton. “He said on behalf of the United States. I’m afraid in this case he is here on behalf of President Manchester, not the United States.”
“I am here on behalf of the United States,” said Gray, glancing at Pendleton.
“Good morning, gentlemen,” said Judge Konopka, the senior judge for the District Court and on senior status—semiretired. He had volunteered for this case, which none of the sitting judges wanted to handle.
Judge Konopka looked around the courtroom, which didn’t have room for one additional human being. “Ladies and gentlemen in the gallery,” Konopka said quietly, squelching even the light buzz of conversation. “The courtroom is very crowded. This hearing is very important, and we all need to be able to hear. I am having difficulty due to the whispering and conversations in the back of the room.” He adjusted his rimless bifocals. “If anyone in the gallery utters a sound, the marshal will escort that person into the hallway.” He sternly scanned the journalists and political staffers in the gallery. He returned his gaze to the attorneys.
“Now, Mr. Gray, I believe this is your motion. I have read your application and supporting papers for a temporary restraining order, and your complaint for declaratory relief and a permanent injunction. It is filed on behalf of the President as an individual citizen, as well as on behalf of the President as the Chief of State and Head of the Executive Branch. Is that correct?”
“That is correct, Your Honor. I might add that service was effected in timely fashion and the Speaker of the House accepted service on behalf of himself and Congress—”
“Excuse my intervention, Your Honor,” said Pendleton quietly. “The Speaker of the House did not accept service for anyone. He was served by a courier yesterday morning. He was handed two copies of the complaint. That is the extent of his participation.”
“Thank you for that clarification, Counsel,” said Judge Konopka.
“Now, Mr. Gray, why this extraordinary step? Why an emergency application for a temporary restraining order against Congress? A defendant is normally allowed twenty days to respond.”
Pendleton sat down at the enormous table in the paneled courtroom. His closed briefcase rested on the floor. He had no papers in front of him. Jackson Gray had a notebook crammed full of cases that had been highlighted and tabulated. Gray was trim and tall, and nearing fifty. He was clearly nervous, but well in control of himself.
Gray continued, “I ask that the court take judicial notice of this morning’s newspaper and yesterday’s newspaper, in which it was outlined that Congress has issued what it has called a Letter of Reprisal to a Navy battle group in the Java Sea. It is Congress’s purpose to usurp the authority given to the President in the Constitution as Commander in Chief, and order the Navy to attack certain people on an island of Indonesia, a country with which we are not at war. This is an intolerable situation which is clearly unconstitutional and must be stopped. The President has ordered the battle group out of the area, but as of this moment it is unknown whether that order will be obeyed. Although it is a remote possibility, the Navy battle group may choose to follow the Letter of Reprisal rather than a direct order of the Commander in Chief. Because of that possibility, and because of the stunning misuse of a very limited constitutional power by Congress, the President thought it necessary for this court to issue a restraining order and a declaration that the order is unconstitutional. Since the court has reviewed our papers, I will yield to the court for questions, if there are any.”
Judge Konopka looked down at the papers and flipped through a couple of pages. He then looked up at David Pendleton. “Counsel?”
Pendleton rose and adjusted his suit coat. He waited for ten seconds, allowing the tension to build, and then spoke. “May it please the court. This court cannot hear this matter today because there is an indispensable party not before the court.” Pendleton paused. Those behind Pendleton began to murmur, which caused a sharp look from Judge Konopka. Silence again descended on the courtroom. Pendleton continued, “Mr. Gray, on behalf of the Justice Department and the Attorney General, has come into this courtroom this morning and requested an order enjoining—prohibiting—Congress from issuing a Letter of Reprisal. That is impossible. The Letter of Reprisal has already been issued. He asks for a declaration that the Letter of Reprisal is unconstitutional. He may ask that, but it cannot be asked in the form of an injunction. That too is impossible. Any decision on the constitutionality of an issue so deep, so full of history and implications, should be made only after Congress is given an opportunity to respond. No one could argue otherwise.” Pendleton swallowed and began again in the same soft yet riveting voice.
“Most fundamental though, Your Honor, is the failure to join the party that the Attorney General and the President truly want to enjoin. The indispensable party to this case is the United States Navy. It is the Navy, according to Mr. Gray, whose acts may be contrary to the law. It is the Navy that has its battle group poised to respond to the murder of Americans. It is the Navy that will either regard, or disregard, the Letter of Reprisal issued directly out of the words of the United States Constitution Article one, Section eight. It is therefore the Navy that must be before this court.”
Pendleton paused again as there was the indrawing of breath in the gallery. He looked around, then continued. “As far as I can see, the United States Navy is not before this court, has not been named in the action, and has not been served with notice of this hearing. Moreover, this points out the fundamental conflict of interest that exists for the Attorney General to represent one branch of government against another.” He glanced over at Gray and spoke to the judge wh
ile looking at Gray.
“What the Attorney General is truly here to do, Your Honor, is to enjoin the Navy, which by definition is part of the Executive Branch of this government, part of the government under the President of the United States, which is the branch bringing this case. They do not need an injunction to stop the Navy; they need only an order from the President. It is my understanding that such an order has been issued. It is therefore up to the Navy whether it will follow the order of the President, who does not wish to act in response to an attack on American citizens, or the constitutionally issued Letter of Reprisal from the Representatives of the American People.” The back of the room erupted and several journalists dashed out of the room with their pads in their hands.
Gray jumped up at counsel table. “Judge, may I respond to th—”
Judge Konopka put up his hand. “Mr. Gray, I gave you your chance to speak, let’s hear Mr. Pendleton out. I will give you a chance to respond.”
Molly felt a sudden wave of panic as she watched Pendleton dismantle her plan. Judge Konopka had to issue the restraining order, or a catastrophe would result. It had to be stopped now before people were killed.
Pendleton returned his gaze to Judge Konopka and waited for the noise to subside. “It is clear, Your Honor, that Mr. Gray has a conflict of interest. He is here asking for an injunction by one part of the Executive Branch against another part of the Executive Branch. Mr. Gray has such a conflict of interest that he cannot possibly be here before this court asking for the relief requested. Thank you for your attention, Judge Konopka.”
With that, Pendleton sat down and folded his hands on the table.
Gray sprang up, anxious to speak. Judge Konopka nodded to him. “Thank you, Your Honor. I am shocked by the bold approach of Congress to dodge this critical question of constitutionality. They attempt to throw this over onto the Navy, when in fact it is they who have issued this unconstitutional Letter. They attempt to use it to intrude in the relationship between the Commander in Chief and the Navy by ordering the Navy to do something that the Navy has been specifically prohibited from doing. This argument is a pure red herring. The court has the authority, and it must act. If this court does not act, then the events after the Letter of Reprisal was issued may spin out of control. The implications for the United States military, the foreign policy of the United States, the authority of the President, are nearly infinite, and the very foundation of the United States Constitution will be in jeopardy.” Gray paused and stared at the judge. “You must act, Your Honor, and you must act now. I have prepared a proposed order enjoining Congress from issuing this Letter of Reprisal, and declaring it unconstitutional, pending further briefing and the determination on the permanent injunction. I would like to submit it to the court at this time.” Gray passed a copy of the document to David Pendleton, who put it on the table unread, and handed the original to the court clerk, who walked it to the judge. The judge looked at it and put it in front of him.
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