“Anything else, Counsel?” the judge said.
“Your Honor,” Gray continued, “I have a lot more to say about all of these issues, and am prepared to argue the merits of the declaratory relief action.”
Pendleton rose slowly. “Your Honor, I am not prepared to argue the merits of this case since Congress received service of this case only yesterday, although I have done some preliminary research and briefing on the merits. I am confident that Congress will prevail and that this act will be clearly constitutional because of the very clear language of the document itself. However, I am not prepared at this point to argue this very complex matter on twenty-four hours’ notice.”
“Mr. Pendleton,” Judge Konopka said quietly, “is it your position that Congress took the step it did, by issuing this Letter of Reprisal, without doing the legal research necessary to justify it? And have they not shared that research with you? Can they issue it and then have you come before this court and claim not to be ready to answer for it?” Judge Konopka paused, then turned toward Gray. “Mr. Gray, I have read all of your papers, which I believe make most of your arguments, do they not?”
“They do indeed, Your Honor. In addition, though, I have read more cases and believe that I can provide additional support for our position, but the gist of our position is certainly in our motion.”
“Very well. Thank you, gentlemen,” said Judge Konopka as he rose.
Gray addressed him with a quizzical look on his face. “Your Honor, if I might, it is important that we hear something immediately. I don’t mean to imply that the court is inclined one direction or another, but if the court is not inclined to grant this temporary restraining order, it is my intention to file an emergency appeal under section 1292(a)(1) to the Circuit Court for the District of Columbia this morning and ask to suspend the usual timing requirements under Rule 2. Might I ask the court for a ruling within an hour?”
Judge Konopka looked at Pendleton, who said nothing.
“This is a very serious matter, Mr. Gray. I find it remarkable that you expect a District Court judge who received these voluminous motion papers yesterday and opposition this morning to have read through them and be prepared to issue an order on an issue of enormous constitutional significance in an hour. Do you really expect me to do that?”
Gray took a deep breath. “Yes, Your Honor, I must insist.”
Konopka looked at both counsel and the gallery, which was on the edge of its seat, and stood to leave the courtroom.
“All rise,” the bailiff cried.
As Molly stood, she watched Gray for some indication of what he expected. She was reassured. Gray looked confident as he stood next to Pendleton and fought back a smile.
Admiral Billings looked at his staff as he drank his coffee. Dillon sat at the other end of the table. The admiral looked at his aide across the room and called to him, “Drano, get Lieutenant Commander Walker up here, ASAP. I want to get an answer back to this message right now. Mr. Dillon, I would like you here during the discussion in case you have anything to add.”
Dillon raised his eyebrows. “Yes, sir.”
The phone rang and the aide picked it up. “Admiral, it’s CAG. He says he must speak to you—it’s urgent.” The admiral walked to the coffee table. His aide handed him the phone.
“Admiral Billings,” he said and then listened. The rest of the officers in the room watched his face as it changed from its usual immovability to concern and then anger.
“When?” he asked casually. “Any doubt about where it came from? When are they due to arrive? Do you have an on-site commander? Okay. Keep me posted.” Billings put the phone down too hard and returned to the table. Still standing, he picked up the silver coffee pitcher and poured the steaming black coffee into his cup. He set the coffee pitcher down with a thud and looked at his staff.
“We just lost one of our F-14s. C0 of VF-143.” There were stunned looks and controlled gasps.
The chief of staff, Captain Black, finally spoke. “What happened?”
“TARPS run over Bunaya. Apparently got a SAM up the ass. They don’t…” The phone rang again.
The admiral’s aide picked up, nodded, and said, “One minute.” He turned to the admiral. “It’s CAG again.”
Billings rose and received the phone. “What?” he asked. “What?” he said again, incredulous. “How is that possible? Are you sure? Okay. Give me hard identification as soon as possible.”
He turned again. “Looks like it was a South African SAM.”
Beth Louwsma was the most surprised. “Excuse me?” she said. “South African? How do they know that, sir?”
“Apparently the EA-6B was airborne and picked up the fire-control radar. They finally categorized the signal as an SAHV-3. Never got a launch indication, so they don’t think that’s what got them.”
Commander Louwsma spoke quickly. “Admiral, South Africa has an infrared version of that same missile, the SAHV-IR.” She gritted her teeth as she realized the failure of the entire intelligence community to pick up on this transfer of surface-to-air missile technology to terrorists or whoever these people were. “They might have tried the Vietnam trick—light up an airplane in front with a radar SAM and shoot from behind with infrared so that he never sees it coming.”
Billings glanced at her and didn’t respond.
“Did they get the crew?”
The admiral shook his head. “No, another airplane saw two good chutes and is the on-scene commander. He hasn’t heard from them yet. They’re twenty-five miles west of the island, which is one hundred fifty miles from here. They haven’t seen anybody come off the island to get them yet.”
The chief of staff nearly shouted his concern. “You think those guys would go after them?”
“It’s certainly a possibility. We’re going to keep somebody there to make sure that doesn’t happen. CAG’s going to keep an armed bird nearby to make sure those boats don’t get anywhere near them.”
The door to the wardroom opened and Lieutenant Commander Walker stepped in, breathing hard after climbing up five decks from the ship’s JAG office, where he’d been researching the Letter of Reprisal. “Good afternoon, sir,” he said to the admiral.
Without looking at him, Billings directed him to the table. “Sit down. Have you had time to look at this issue?”
The admiral’s staff judge advocate had been thinking about nothing else since he heard about it. He knew the time would come when he would have to answer the question. His thinning hair had begun to stick up on his head as if his body were electric.
His mouth was dry as he began to speak. “Yes, Admiral, I’ve looked at it pretty thoroughly.”
Admiral Billings held up his hand. “Excuse me. Let me introduce Mr. James Dillon, the Special Assistant to the Speaker of the House. He has also done a substantial amount of research on this issue. Isn’t that right, Mr. Dillon? The Speaker of the House didn’t go forward with this Letter of Reprisal without having done exhaustive research, did he?” Admiral Billings’s eyes burned holes through Dillon.
Dillon’s mouth began to get as dry as Walker’s. “No, sir. We looked at it very hard.”
Billings turned to his JAG officer. “What’s the answer?”
“Well, Admiral, unfortunately there is nothing out there that says either way.” Walker read the admiral’s displeasure on his face and continued, the words coming out faster in hopes of warding off disaster. “Nor is there anything within the Constitution that makes it particularly easy to answer that question. The Constitution clearly provides for Letters of Marque and Reprisal, but it doesn’t say to whom they should be issued or what their limitations are. I suppose,” he said, adjusting his glasses, “that the writers expected people to understand the term as meaning the historical Letter of Marque and Reprisal, which had been used by many countries for several centuries before that. That would be a letter issued to a private ship to act as a man-of-war against a foreign country. It allowed it to attack and take commerce and
prizes. Sort of legalized piracy.”
“What about issuing one to a Navy ship?”
“There is some limited authority that it may have been done, but not much and not for a long time.”
The admiral sat back and looked at Dillon. “Mr. Dillon? Do you agree with that?”
Dillon swallowed. “Yes, sir, I do.”
“Why did Congress issue this Letter of Reprisal to a Navy ship?” the admiral prodded.
Dillon fought through the dry mouth as his anger returned. He put his arms on the table. “Because they wanted the Navy to act. Because the Speaker believes it is within Congress’s power to issue a Letter of Reprisal to whomever it wants. We have an obligation, not just a right, but an obligation to defend ourselves and our citizens from attack.” He leaned forward slightly, his confidence growing, “What kind of country is it that builds a huge defense establishment, enormous ships with thousands of sailors, incredibly capable airplanes, missiles, and bombs, and then stands by and watches its own countrymen get murdered and its ships sunk? And if a Letter of Reprisal can remedy the situation, do we send a merchant ship with a bunch of untrained civilians with guns, or CIA agents? We don’t even have armed merchant ships anymore. We used to, and it made sense to send them. Now we don’t, so the only thing that makes sense is to send a U.S. Navy warship.”
Billings nodded. “I agree with your sentiments, but this is a question of authority. I have a message right here”—he picked the paper off the table—“from the President of the United States telling me not to do it. I have a letter right here”—he picked up the folder—“signed by the Speaker of the House, voted on by the Senate and the House, with a presidential veto that has been overridden by the Senate and the House, that tells me to do exactly the opposite.” He looked at the faces in the room.
The staff remained stonily silent, unwilling to contribute to the discussion for fear of going down in history for making The Big Blunder. Finally the chief of staff spoke. “Sir, do you think we should get the captain of the carrier, the commander of the airwing, and the squadron commanders here to go over this with us? If we go forward with this, they’re the ones who are going to have to implement it. Perhaps they should be part of the decision….”
Billings shook his head. “No. This is my decision. I don’t want them to even be a part of it. If I’m wrong, I don’t want them to take any of the heat.”
Billings sipped his coffee as he evaluated his options. “Gentlemen,” he said, rising, “Beth, this is one of those times where you simply have to decide. You may be proved wrong, but decide you must.” He turned and looked at his staff, then the picture of Old Ironsides behind him.
Dillon spoke. “Sir, may I be heard?”
“Sure,” Billings replied curiously.
Dillon crossed to the replica of the Constitution on the wall. “When the United States was founded, it wasn’t because we had great men who were going to tell us what to do; it was because those men recognized principles that were binding on us all. We’re not bound to men, we’re bound to ideas. Ideas like equality, freedom of expression, freedom of religion.” He paused and looked at Admiral Billings. “The thing that protects us from losing those freedoms isn’t a person, it’s a document. The document this ship is named after. Without it, we’re just another country arguing about who wins, which is decided by who is in power. Is it up to the President to say what we are to do? Is he the Commander in Chief? Sure he’s the Commander in Chief of the armed forces. But can he do whatever he wants with us?” He shook his head. “He is limited by the Constitution like everyone else.”
Dillon paused to consider his words. What he was about to say could be perceived as a rude challenge by a young staffer. He proceeded cautiously. “Admiral Billings,” he said slowly, sweat visible through his shirt, “when I was doing my research, I came across something that surprised me. I came across the oath of office that the President takes when he is sworn in. It’s right there in the Constitution. Word for word. The oath for the Vice President isn’t in there. And the oath for Cabinet members isn’t in there, and your oath, the oath that military officers take, isn’t in there. The oath that you took, Admiral, that each one of your staff members took”—he swept his hand around the table—“that the Vice President took, and that the Speaker of the House took, is the same oath. Everybody’s oath is the same except the President’s. And your oath is that you will support and defend the Constitution, ‘against all enemies….’ All the President promises to do is preserve, protect, and defend the Constitution. He never swears to defend it against all enemies. But you do.” Dillon realized he was speaking too loudly. He took a breath to slow down. “Against all enemies, foreign and domestic…that’s what you swore to do, Admiral, and that’s what you must do.”
Dillon returned to his seat.
Billings looked around the table at his staff. Each one of them met his gaze. He recited from memory the oath he had taken as an ensign. “I, Ray Billings, do solemnly swear that I will support and defend the Constitution of the United States, against all enemies, foreign and domestic….
“Our first allegiance, gentlemen, Beth, is to the Constitution. Our second allegiance is to obey the orders of those above us, but they must be lawful orders. An order directly contrary to the Constitution is not lawful. Seems to me,” he said, the momentum of his words driving him, “that we follow our first allegiance, to the U.S. Constitution.” He looked around at the picture of the square-rigged frigate, and then back at them. “And to the USS Constitution.” He paused and strode back to his chair. “Chief of Staff, prepare a message. Tell the Joint Chiefs of Staff and the White House: ‘Have received your message. Since receiving your message, Navy F-14 shot down by terrorists with South African surface-to-air missile. Am proceeding against the terrorists with all due speed. Believe bound by allegiance to the United States Constitution and therefore will follow the direction of the Letter of Reprisal issued by Congress.’ ” He spoke to his staff again. “I am not even going to ask you if you are with me or against me—” the Admiral said.
“Admiral,” the chief of staff interrupted. “May I say something?”
Billings hesitated. “I don’t know. If I—”
“I think you’re making a big mistake. The oath is right, but you’re missing the point. The order of the President is right out of the Constitution too. He is the Commander in Chief….”
Billings stared hard at him. “So any order of the President is automatically right?”
“Well, of course not every order, there would be—”
“And how can you tell the difference?”
“By the rules of war, the rules of law under which we operate, the UCMJ…”
“But what if his order was directly contrary to the Constitution?”
“Well, in that case, maybe…”
“Isn’t that what we have here? He has given us an order that is contrary to the Constitution. And you’ve heard these two gentlemen”—he indicated Dillon and Walker—“and there’s nothing out there, nothing, that says this can’t be done.” He continued to stare at his chief of staff, who had stopped looking at him.
Billings lowered his voice. “What if the President has lost his nerve? What if he won’t do anything, no matter what? What if he’s not fulfilling his obligation as President? Congress can’t do anything about it?” He shook his head. “Looks to me like they can. And they have.”
Pendleton and the Speaker of the House were in the corner of the Speaker’s enormous office. Pendleton was shaking his head slowly. “That’s really not my area, Mr. Speaker. I have never looked into impeachment at all. I know Johnson was impeached, but short of that…” He was interrupted as the door opened and they both looked up. Robin walked in hurriedly. “There is a phone call for Mr. Pendleton. It is urgent.”
Pendleton looked inquiringly at the Speaker, who shrugged anxiously.
Pendleton picked up the phone on the Speaker’s desk. “David Pendleton.” He listened inten
tly, then said, “What does it say?” He waited and listened.
The Speaker crossed over to stand next to him. He resisted the temptation to lean closer to the earpiece and attempted to appear calm.
After about a minute, Pendleton spoke again. “Thank you. Please fax it over to me at the Speaker’s office immediately.” Pendleton placed the receiver gently on the telephone. He turned to the Speaker, expressionless.
Stanbridge could not stand the suspense. “Well?”
“That was the associate I had waiting at the courthouse.” Pendleton glanced at his watch. “Only forty-five minutes. The judge must have already had his decision in mind before we arrived this morning.”
“Well, what does it…what happened?”
Pendleton looked at him and a glint appeared in his eye. “We won the first round.”
“And what does that mean?”
“I argued that they did not have an indispensable party before them, specifically the Navy, and if they did, they would have a conflict of interest, as it would be the Executive Branch suing the Executive Branch. The court has said that there is an indispensable party not before them for the temporary restraining order. The court also said that the constitutional issue should not be resolved in twenty-four hours, but with both sides having a chance to be heard on the merits by submitting briefs. The court set a hearing thirty days from today to hear the constitutional question.” The corners of Pendleton’s mouth curled into the faintest smile. “I take it thirty days will give you sufficient time to accomplish your objectives?”
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