“Listen to this. ‘Because of the sensitive nature of its business, the Foreign Intelligence Surveillance Court is a secret court: its hearings are closed to the public, and, while records of the proceedings are kept, those records are also not available to the public. Due to the classified nature of its proceedings, only government attorneys are usually permitted to appear before the FISC.’ What does that sound like to you?” says Harry.
“I don’t know. A star chamber?” I say.
“A federal grand jury,” says Harry. “It’s the same thing.”
“In the meantime they have the photographs, and we can’t see them. They know two people have been murdered, probably over these same photos, but they don’t care because this is outside the purview of their law enforcement union card.”
“At least you have the satisfaction of knowing that if the look on his face means anything,” says Harry, “Templeton knows less than we do about what’s happening.”
“You mean with the feds?”
“Exactly,” says Harry. “When you dropped Nitikin’s name, Rhytag went supernova. He damn near melted the Dwarf, but Templeton didn’t have a clue. Which makes you wonder, if all this stuff is so secret, why did Rhytag and company show up in Quinn’s chambers to tell us anything at all?”
“The reason’s obvious,” I tell him. “Once we filed the Brady motion, they didn’t have much choice. It was either that or have Templeton tell the judge that the federal government had seized the photos from the evidence files. Either way, Rhytag’s operation would have been smoked out. This way at least they got to talk to us, fish for information, like where the pictures were taken.”
“True. They could have sent the FBI here to the office to ask questions but they know that’s a dead end. Privileged information,” says Harry. “Anything Katia’s told us is covered by the attorney-client privilege, and there’s no way they can get around it.”
“Right. They could drag you and me behind closed doors in front of a federal grand jury, but they know they’d get the same answer.”
“That’s true. No federal judge is going to issue a contempt citation and jail two lawyers in a capital case because they refuse to violate privileged communications with their client.”
“That’s why Rhytag mentioned use immunity for Katia,” I say. “He was testing the waters.”
“If they gave her use immunity and agreed that nothing she said before the grand jury could be used against her in any criminal proceedings, she couldn’t take the Fifth and remain silent,” says Harry.
“And if they built a Chinese wall around the state murder charges and declined to share anything with Templeton, the immunity wouldn’t apply there. So for that she’d still be on the hook,” I say.
“Of course, if they tried to take Katia before a federal grand jury, they’d have to allow her access to her attorneys before they did it,” says Harry. “We can’t go inside with her, but she’s certainly entitled to legal advice and the right to confer with her lawyers.”
“And that, of course, is their problem,” I say. “If their only sanction is to have her held in contempt and jailed if she refuses to talk, since she’s already in jail they have to know we’re going to tell her to sit tight and say nothing.”
If they didn’t know it before, they know it now.
“And besides,” says Harry, “that way she gets the upgrade to the five-star room at the federal detention facility.”
Harry looks at me, shrugs a shoulder, and glances at the ceiling as if to say, Can you think of anything else?
I raise a finger. One more point.
“What’s troubling to me is why Templeton invited us to file the Brady motion immediately. Why not wait? He knew the feds would be forced to come out of the shadows, to show their hand the minute it was filed. You have to wonder why.”
Unless I’m wrong, this little tidbit will have Rhytag and his underlings looking for a stick to tie the Dwarf to so they can burn him at the stake. The quick Brady motion was Templeton’s idea. The feds had taken the photos from his files, but they wouldn’t tell him why. The curiosity must have been killing him, so he stirred the pot to see what would happen.
“We need to talk to Katia about everything, go over it all one more time, everything she told us, and we need to do it soon.”
“It’s already been arranged,” says Harry. “She’ll be on the morning bus day after tomorrow with the early arraignments. We don’t meet with Quinn until one in the afternoon. That gives us all morning to huddle with her and pick her brain.”
And it gives Rhytag two days to wire the courthouse holding cell where we will talk to her. He’s going to be very disappointed when Nitikin’s name never comes up. But we can convey Templeton’s offer to her, the LWOP, and make sure the judge is satisfied she understands all the terms before she turns it down. Harry is convinced it’s the only way we’re going to get Templeton off my back.
“We can’t get her in any sooner? Why not tomorrow?” I say.
“I already tried. Quinn’s not available,” says Harry. “That’s as soon as we can do it. So what’s next? Where do we go from here?”
“We go back to where we started. Pike was killed for the photographs. They’re still the key to our case. We go after the pictures.”
“And just how do you propose doing that?”
I check my watch. It’s just after ten thirty in the morning and our script has run dry. But it’s always best to leave them with an unanswered question. “How about an early lunch?” I say. “For some reason I’m hungry this morning.” I give Harry a wink.
“Sure, why not?”
As we head out of the conference room, Harry turns toward his office. I grab his arm.
“I need to get my jacket,” he says.
“Let’s take a walk.” We go out through the front door of the office in shirtsleeves. Instead of turning left toward Miguel’s Cocina, through the little plaza and out under the arch onto Orange Avenue, we turn right and go out the back way, past the trash cans, to a small gate that leads to the parking area behind the buildings.
“What’s going on?” says Harry.
“You asked me how I was going to get the photographs. Rhytag thinks he has the only copies. It’s possible that he doesn’t.”
“If you’re gonna tell me you got Pike’s laptop,” says Harry, “I’m going to start thinking the Dwarf may be onto something after all.”
“No, it’s not the laptop. But the day I met with Katia alone out at the jail, I think you were busy with something else. She told me something and I let it slide, because at the time I didn’t think it was important. She told me that her camera, the one her mother used to take the shots down in Colombia, is at her mother’s house in San José. She told me that as far as she knows, the original images that her mother took are still in the camera. Pike told her that he didn’t erase them from the media in the camera when he copied them to his laptop.”
“That’s assuming we believe him,” says Harry.
“If we’re going to get the photos, it’s the only shot we’ve got.”
TWENTY-SIX
If he ever got drunk and unruly in a bar, Herman Diggs would be the bouncer’s worst nightmare, though you wouldn’t know it from his smiling face and glistening bald head as it pops around the corner of my office door this morning.
“Understand you got something for me,” he says.
I have never actually put a tape measure on Herman, but as he comes through the door he fills it with only a few inches to spare at the top and nothing on the sides. Herman is our investigator. African American, in his thirties, he is a human brick. A blown knee in college crushed Herman’s dreams of a football career and left him with a slight limp, though if you ever saw him run someone down and bury him from behind, you might question this.
“Let’s go grab a cup of coffee,” I say.
Herman and I stroll out to Miguel’s Cocina, under the palm fronds over the patio. We sit at one of the small table
s.
“I don’t think they’re open yet,” says Herman.
“Harry and I have decided that certain things shouldn’t be discussed in the office,” I tell him.
Herman gives me a sideways glance.
“The walls have ears,” I say.
“Who would do a thing like that?” he says.
“You don’t want to know. But be careful using your phone or talking in your office concerning the matter we’re about to discuss. Harry and I are using nothing but notepads and carrier pigeons for the moment,” I tell him. “Don’t send any e-mails or leave any voice mail on any of our office systems, or for that matter, our residential phones or e-mail. We’ll have to find other ways to keep in touch. And forget the cell phones because they’re now party lines.”
“Federal government,” says Herman.
I nod.
“What did you do, forget to pay your taxes?”
“How’s your calendar?” I ask.
“I’m booked tomorrow afternoon. I got a court appearance for another client. After that I’m open for a few days. How much time do you need?”
“It depends on how fast you can work and whether you can find what we’re looking for. It’s the Solaz case.”
I pull my wallet out of my hip pocket. I open it and fish out a tiny folded slip of paper. It’s the one I gave to Katia that day at the jail so she could write down her mother’s address. I folded it up and put it in my wallet. I kept forgetting to put it in the file. It is part of the reason the camera had slipped my mind.
“It’s not a street number. They don’t use street numbers the way we do. It’s in Spanish. It’s a written description of how to get to the house. She wrote it on this slip of paper.”
“Costa Rica,” says Herman.
“How did you know that?”
“Only place in the western hemisphere doesn’t have mail service,” he says. “Been there, know it well. What city?”
“San José.”
“No problem.”
It’s the thing about Herman. He knows the central and southern part of the western hemisphere like the back of his hand. He and I first met in Mexico on a case that turned violent. When we finally popped up our heads, we realized we were the only two people in sight who could trust each other.
“What is it you’re looking for?”
“A camera. I don’t know what it looks like or where it’s located in the house.”
“Still or video?”
“Still—point-and-shoot, probably something small.”
“Can you talk to your client and get a description?”
“I’ll see her tomorrow in the lockup at the courthouse. I’m sure I can get a description, the problem is how to do it without having the world listening in.”
“You think they’re gonna wire the lawyers’ conference cubicle in the courthouse?”
“Yes.”
Herman gives a long, slow whistle. “What’s this lady involved in? Besides murder, I mean.”
“That’s the problem. We don’t know. And I’m not sure she does.”
“Use notes,” says Herman.
“I doubt if she can read English all that well, and I haven’t written any Spanish since high school.”
“Get somebody to write the questions down ahead of time, this afternoon, in Spanish. Have her write the answers and you can have ’em translated when you’re done.”
“Good thought.”
“Don’t get me wrong, I don’t mind taking a trip to Costa Rica, but why don’t you just have her call somebody down there to look for the camera?” says Herman.
“I thought about it. If I have her call from the jail, the feds are going to know about the camera immediately. The FBI always has a resident agent at the embassies. If they get there ahead of us, we lose the camera and the pictures. Second, if we’re correct in our assumptions, the camera contains some photographs we believe are central to our case. We don’t know if we can trust the family. If we ask them for the camera, the pictures may disappear. We think the pictures are the reason Emerson Pike was killed. So be aware that there may be some risk involved here.”
“You’re telling me I’m gonna get hazardous-duty pay?”
“Be careful. You may earn it. The house in San José belongs to the defendant’s mother. She’s the one who took the pictures. Other than that we don’t know anything about her. She may be a player. She may be an innocent bystander. She may not even be there. We don’t know. According to Katia, there are no other family members who hang out at the house, just her and her mother, though she has friends who apparently have access, enough to leave a note at the house. Harry called one of them, a girlfriend of Katia’s, and asked her to leave a message at the house for Katia’s mother in case she came home. The mother was supposed to call the law office, but so far we’ve received no word. So we have to assume she’s still gone. What I’m saying is that I’m not giving out any character references, so be on your guard.”
“Got it.”
“One other thing; when you’re down there, keep your ear to the ground. In addition to the camera, we’re looking for a lead on a man named Nitikin. He’s the defendant’s grandfather.”
“Do you have a first name?”
“No. I’ll put it on the list of Spanish questions. Given what we don’t know,” I tell him, “that’s going to turn out to be a very long list.”
TWENTY-SEVEN
Kim Howard entered the room, followed by Zeb Thorpe, head of the FBI’s National Security Branch. They were meeting in the conference room at the FBI field office in San Diego, out on Aero Drive and not far from the Marine Corp Air Station at Miramar.
“How was your flight?” Jim Rhytag was already set up at the table, going over reports from the FBI transcripts.
“Don’t ask,” said Thorpe.
“What have we got so far?” Thorpe dropped his briefcase on the table and shed his suit coat.
“Has anybody briefed the White House yet?” said Rhytag.
“I’m told the national security advisor included it in his briefing to the president yesterday morning,” said Thorpe. “The president wants an update every morning.”
“I just started going over the summaries of the transcripts from the recordings, the office and phones,” said Rhytag. “According to the analysts, there’s not a lot. Unfortunately, we got a late start. If we could have gotten the warrants a few days earlier, and surveillance in place faster, it would have made a big difference.”
“We did the best we could,” said Thorpe. “You forget, we had to shop for the judge.”
Thorpe had a point. There were eleven judges appointed by the Chief Justice of the United States to serve on the Foreign Intelligence Surveillance Court. In any close case the FBI and the Justice Department had a pretty good idea which members of the court would give them a warrant and which judges might give them a hard time.
Rhytag’s lawyers and Thorpe’s agents had to wait nearly two weeks until the judge they wanted was on call. Then last weekend, when most of the judges on the special court were gone, they filed their application and snagged the judge they wanted.
It was a tough sell convincing a federal judge to allow them to electronically record conversations between lawyers, as well as between those lawyers and their client, who was already behind bars on state homicide charges.
The pitch they made was that the defendant, Katia Solaz-Nitikin, was believed to be a foreign agent working at the behest of an as-yet-unidentified foreign power. She had entered the United States in the company of a retired operative of the U.S. Central Intelligence Agency, Emerson Pike. She was then believed to have murdered Pike at his home in San Diego County. They then used the old Soviet intelligence documents linking Nitikin to the missing nuclear device. They used the photographs taken by Katia’s mother, along with the information they had concerning the disappearance and possible homicide of the photo analyst in Virginia, which they claimed identified Nitikin as being alive. They establi
shed the family relationship between Katia and her grandfather. They then summed it all up. It was the government’s belief that Emerson Pike had stumbled onto a plot involving Yakov Nitikin and a nuclear device in his possession, possibly involving the transport of that device to an unknown destination within the United States for the purpose of committing an act of terrorism.
They told the judge that it was the government’s belief that Katia Solaz had murdered Emerson Pike to silence him and had taken the photographs in order to ensure that they did not fall into the hands of the United States government. In so doing she was engaged in assisting Nitikin in furtherance of a plot to plant a nuclear device on U.S. soil for purposes of terrorism.
They told the judge that the government did not wish to arrest Katia Solaz on these charges as of yet. Since she was already in jail, she was no longer at risk of furthering the conspiracy. But she was a valuable asset in the government’s surveillance. The government lawyers told the court they understood that none of the information conveyed by Ms. Solaz to her lawyers could be used in a later prosecution on charges of espionage or terrorism. But given the risk of a loose nuclear device finding its way onto U.S. soil, the government had little choice but to lose the evidence against Ms. Solaz and gain the necessary intelligence to find the device. They would build a wall around the state murder case. None of the information obtained under the federal surveillance warrants would be shared with the state prosecutor or the local police, thereby avoiding any problems in the state’s prosecution for the murder of Emerson Pike.
To these conditions, the court added one more. The government could record conversations between the defense lawyers or between the lawyers and their employees or agents, but only those conversations involving the Solaz case. Recording of conversations in the office involving any other matter were prohibited, and all such information coming into the possession of federal agents was to be treated as confidential. On these conditions the warrants were signed by the judge, allowing audio surveillance and telephone taps.
Guardian of Lies Page 18