Rule of Law

by Randy Singer

  While the women were on the way, Wellington called to inform Paige that they had drawn Judge Thea Solberg, a first-generation immigrant from Norway who had been a constitutional law professor before she was appointed to the bench by Obama.

  “She was at the top of my list,” Paige told Wellington. “But I didn’t get my hopes up because we had a slim chance of drawing her.”

  “Actually, our chances were one in three,” Wellington said. “Two of the judges recused themselves because they’ve hit Wyatt with sanctions in the past and he routinely files recusal motions against them.”

  “I should have known,” Paige said.

  The women arrived thirty minutes early and parked in the underground garage near the Norfolk Scope Arena. When they turned the corner onto Granby Street, which ran in front of the outdated block fortress that served as the federal courthouse, Paige almost stopped in her tracks. The street was jammed with satellite trucks, reporters of every stripe, and spectators who were lined up out the door and down the steps of the courthouse.

  “Must be a slow news day,” Kristen said.

  “Maybe they’re here for another case,” Paige said.

  In truth, she had expected a lot of media, though nothing this big. But it was the perfect storm of political controversy—a sitting president and her cabinet members accused of using U.S. troops for political purposes. Twenty members of the Special Forces gunned down. A high-ranking admiral reassigned. The CIA and the president’s chief of staff accused of a cover-up. Midterm elections later in the year.

  Yet it was more than just political. In many ways, the case seemed to be pitting the families and commanders of SEAL Team Six against a civilian administration that had not always been on the best terms with its military leaders. There were a lot of dynamics swirling around, and Paige felt like she was in the vortex of a hurricane.

  The two women didn’t break stride as they walked down the sidewalk toward the front steps of the courthouse. A few of the cameramen recognized them and whirled around to capture footage. Like a swarm of locusts, other crews and reporters rushed toward Paige and Kristen, shouting questions and sticking microphones in their path. Neither of the women said a word as they plowed ahead, hoping the media Red Sea would part before them.

  There was a scuffle caused by a group of men coming from the opposite direction, and soon the mass of humanity in front of Paige and Kristen was pried apart by a number of SEALs in civilian clothes, men Paige recognized from the night she had met them at Kristen’s house. They shielded Paige and Kristen down the sidewalk and to the front of the security line. They had apparently already talked to the federal marshals, who allowed Paige and Kristen to cut in line and go through the metal detector. The SEALs passed through right behind them, thanked the marshals, then encircled Paige and Kristen again as they made their way to the elevator and the large courtroom on the third floor where Judge Solberg presided.

  Paige thanked the men, who told her that there were plenty more SEALs in the courtroom—“the first three rows on your side.” They had all taken a personal day to show their support.

  “Right now would probably be a good time for somebody to attack the country,” one of the men quipped.

  The defense lawyers were already in place when Paige entered the courtroom. Wellington was there as well, though Wyatt was nowhere to be found.

  “He usually gets here just before the judge hits the bench,” Wellington whispered to Paige.

  “Great.”

  Paige crossed the aisle to shake hands with opposing counsel. The first man introduced himself as Dylan Pierce, the lead lawyer for Philip Kilpatrick. Paige had done her research on the man and knew he could not be trusted. He looked like a lawyer from central casting—slick dark hair and handsome face, designer suit. He had a bit of a five o’clock shadow that would make him appear hip and casual during the post-hearing news interviews.

  The other lawyer, Kyle Gates, was six inches shorter with broad shoulders, a blocky face, deep-set eyes, and a noticeable scar over his left eyebrow. Gates had an Army haircut, and Paige knew from her research that he had been a Green Beret before going to law school, ultimately becoming one of the best litigators at one of D.C.’s largest firms. He was only forty years old.

  He shook her hand and handed her an affidavit.

  “This is from my client, Director Marcano,” Gates said. “It supports our state secrets defense.”

  “A little late, isn’t it?” Paige asked.

  “We raised the defense in our brief several weeks ago. This is just a supporting affidavit. I’ve also filed a classified affidavit under seal to explain the basis for our defense in more detail.”

  Paige flashed back to her conversation with the Patriot. There was no doubt now the man had insider access.

  Paige noticed that neither Kilpatrick nor Marcano had bothered to show up. “Are your clients planning to attend?” she asked.

  “They’re a little busy,” Pierce said.

  As Wellington had predicted, Wyatt Jackson did not saunter into the courtroom until about 9:28. He shook hands with the defense lawyers and sat down next to Paige.

  “Did you see this?” Paige asked, sliding the affidavit toward him.

  He glanced it over. “They just file that?”

  “This morning.”

  He frowned. “I usually like to be the one with the surprises.”

  He placed his briefcase behind him and pulled out a single legal pad with a few handwritten notes. Paige had two large black notebooks in front of her, filled with cases and analysis. She had also typed an outline of her state secrets argument. The defense lawyers had a wall of notebooks lining their table as well. And her cocounsel, Wyatt Jackson, had a single legal pad.

  He leaned over to Paige. “Think I have time to hit the bathroom?” he asked.

  “No,” Paige said, though she was feeling a little sick herself.

  He checked his watch. “Yeah, you’re probably right.”

  41

  Judge Thea Solberg had been appointed to the bench at age sixty-two and was now approaching the mandatory retirement age of seventy. She was diminutive (it was rumored she sat on a pillow to see over the bench), quirky, and energetic. Her lean, angular form was covered by white Norwegian skin, her thin face framed by straight blonde hair. She wore bifocals over pale-blue eyes—eyes that could drill a hole through renegade lawyers. She ran, by all accounts, a tight ship.

  Her life and love was the law. She had taught constitutional law at William & Mary for nearly thirty years before taking the bench. She specialized in writing law review articles about arcane aspects of the Constitution that famous professors at places like Harvard and Yale ignored. If you wanted an expert on free speech, you went to the Ivy League schools. But if you wanted to know about the Article 6 clause prohibiting a religious test as a qualification to any office or public trust under the United States, then Professor Solberg was your scholar.

  A few minutes before she took the bench, a clerk came out and plopped down a large pile of papers with yellow stickies jutting from the side. The clerk disappeared out the back and reappeared a minute or so later with a large cup of coffee that she placed next to the papers. The bailiff then announced that court would come to order and everyone stood.

  Judge Solberg breezed in the back door, pleasantly asked everyone to take their seats, and climbed into her chair behind the bench.

  She peered out at the courtroom, taking in the spectacle. “Looks like we have a full house today,” she announced. “Probably some kind of fire code violation. We have a few rules here for the purpose of decorum, and you should know that I’m a stickler for rules.

  “If there’s any talking from the gallery, I’ll have the marshals escort you out. I don’t allow people to run in and out during the proceedings. If you choose to stay after I complete these remarks, then I’ll assume you’re staying for the entire hearing. Those of you standing along the back walls, this is going to be quite a long hearing an
d you’re welcome to have a seat on the floor when you get tired.”

  She looked at the clerk and asked him to call the case. When he was finished, Judge Solberg explained she would be hearing arguments on the defendants’ motions to dismiss. She told the lawyers that she had read every word of every brief—so there was no use repeating those arguments—and invited defense counsel to begin.

  Dylan Pierce argued first, addressing the Feres Doctrine. His voice sounded like a polished radio show host’s, and he spoke with great confidence, as if it were just a matter of formality for the court to enter judgment on his behalf. It would create absolute chaos if military members could file suits arising out of combat activities, he argued. Commanders would be hesitant on the battlefield, worried about losing their savings accounts and homes. Courts would be second-guessing military decisions. Other military officers would be called as experts by plaintiffs to testify, pitting one commander against another. To avoid all of this, Congress had granted generous military pensions and death benefits for men and women like the SEALs who bravely gave their lives in Operation Exodus. He actually spelled out the amount of money that the Anderson family had already received, totaling more than three hundred thousand dollars.

  He argued the case law in great detail, emphasizing the Stanley case, which held that a serviceman could not file suit even when the government had secretly administered doses of LSD to that serviceman as part of an experimental program.

  Lastly, he pointed out that the test under the Feres Doctrine was not whether the serviceman was technically employed by the military at the time of his death, as opposed to the CIA, but whether the injury was “incident to service.” Troy Anderson was part of SEAL Team Six, he reported to the command structure for SEAL Team Six, and he had received the benefits of being a serviceman. His tragic death was certainly incident to his service as a member of the military, and the case should therefore be dismissed.

  It was, Paige thought, a performance worthy of Pierce’s exorbitant hourly rates. Judge Solberg paid rapt attention, jotting down notes and sipping her coffee. She occasionally twisted her face into a look of quizzical skepticism but for the most part seemed unsurprised by what Pierce said.

  When Kyle Gates rose to speak about the state secrets doctrine, Paige felt her palms go sweaty and heard her heart beating in her ears. She still couldn’t believe Wyatt had passed this argument to her on less than a day’s notice!

  By comparison to Pierce, Gates seemed choppy and strident. Pierce had been conversational, but Gates had a military cadence and an intense tone that made it feel like he was lecturing the court. According to Gates, the classified and unclassified affidavits he had submitted spelled out in great detail why this case would result in disclosure of state secrets detrimental to national security.

  The state secrets doctrine had been part of the country’s jurisprudence for over two hundred years, he said, dating back to the treason trial of Vice President Aaron Burr. Just up the road in Richmond, Chief Justice John Marshall had acquitted Burr. During that trial, Burr’s lawyers had tried to subpoena papers from President Thomas Jefferson, but Jefferson argued that it was his executive privilege to decide what papers should be produced and what papers should not be produced so as to protect state secrets.

  “And two hundred years later, in the case of El-Masri v. United States, the Fourth Circuit Court of Appeals, sitting in the same city, threw out the case of an innocent man who had been wrongly captured by the CIA during the Bush administration and allegedly blindfolded, drugged, and tortured. In that case, the director of the CIA submitted two sworn affidavits just like the ones I have provided, explaining why a trial might expose state secrets about the CIA’s interrogation program. That case was dismissed, and this one should be as well.”

  Gates took his seat, and there was a stir of anticipation in the courtroom. The defense lawyers had done fine, but people hadn’t crowded into the courtroom to hear the high-paid lawyers from D.C. recite predictable quotes from prior cases. They had come to hear the irascible Wyatt Jackson, and the air became thick with tension as the old man rose, buttoned his suit coat, and stepped grandly to the lectern.

  “I remember the Aaron Burr case,” he said. “I believe I was a young lawyer at the time, and Your Honor was probably still in law school.”

  Though she probably tried to suppress it, Solberg’s mouth twisted into the faintest hint of a smile.

  “And if I remember correctly, Chief Justice Marshall, may he rest in peace, decided that the subpoena for documents could be issued to the president despite Jefferson’s protests. Marshall vowed to give some deference to Jefferson’s office and avoid what he called ‘vexatious and unnecessary subpoenas,’ but he didn’t just defer to the president and dismiss the case. His ruling was significant because it made clear that the president, like every other citizen, was subject to the law, not above the law. That’s why we’re here today, Your Honor—to uphold the rule of law. And you should reject the invitation from my distinguished opponents over there to rule that the courts have no authority in matters of foreign affairs and that we should just trust the executive branch to do the right thing.”

  Wyatt pulled himself up to his full height, grasping both sides of the podium without a single note in front of him. Paige had already been impressed that he knew something about the Aaron Burr treason trial. Maybe she could relax a little.

  “But we are here precisely because this president cannot be trusted. We are here because we believe this president, in conspiracy with the director of the CIA and her own chief of staff, sent Troy Anderson on a dangerous mission knowing he would die. She did it for political reasons, and it is insulting to both this court and every member of our armed services to suggest that we are not even allowed to question the president or her henchmen about this. That we are required to simply take their word that things have been done lawfully when it comes to matters of foreign affairs. That is a good argument for dictators and despots but not one that should sit well in a constitutional republic, one with checks and balances that require the president to be accountable under the law just like everyone else.”

  Wyatt paused and took a deep breath. And Paige could sense that the SEAL team members and their families, sitting right behind her and hoping to see politicians held accountable, were ready to stand up and applaud. It made Paige sit up just a little straighter to be on Wyatt’s team. He had certainly thrown down the gauntlet. He was right about one thing—even if they lost, they would go down swinging.

  42

  Wyatt’s logic was simple. The United States was not at war in Yemen. “Unless, of course, I missed a declaration of war from Congress in the last few months.” Accordingly, it would be a violation of the U.S. Constitution and international law for U.S. military members to go on a mission in Yemen unless they were taking action against al Qaeda under the 2001 Authorization for Use of Military Force Act. But this mission was against the Houthis, and that’s why the Special Forces had been deputized by the CIA.

  “The CIA does not employ servicemen; it employs civilians. They’re called operatives, not soldiers. And the CIA can insert its operatives anywhere in the world. On this mission, it happened to pick twenty operatives with Special Forces training and military background. But when they set foot in Yemen, they were civilians employed by the CIA, and that was an intentional choice by the president of the United States and the director of the CIA. It is the height of hypocrisy for them to say to the world that they were civilian CIA operatives but to say to this court that they were servicemen.”

  “Let me interrupt you for a moment,” Judge Solberg said. It was the first time she had asked a question in the hour-long proceeding. “How do we know these men were acting as operatives for the CIA?”

  Wellington was sitting behind the counsel table and passed a note to Paige. CIA benefits paid to families.

  A scene flashed through Paige’s mind: Daniel Reese coming to Kristen’s house to personally deliver the news tha
t Congress had approved CIA death benefits for Troy. In that moment, she realized that Reese had not merely been doing a kind act for a widow; he had also been slyly providing evidence that he knew could be used in these court proceedings.

  Paige tried to get the note to Wyatt, but he ignored her. “We will prove it through the testimony of Director Marcano,” Wyatt said.

  “Doesn’t that expose state secrets?” Solberg asked.

  “The test is not just whether state secrets are exposed,” Wyatt responded. “The test is whether state secrets are exposed in a way that would jeopardize national security. The world already knows that the CIA deputizes SEAL team members for missions in countries where we are not at war. Dozens of books have been written about the bin Laden mission where the same thing was done.”

  “Go on,” Judge Solberg said.

  Paige pulled the note back and placed it on top of her own legal pad.

  Wyatt closed his argument with a flurry. He turned to the SEALs and their family members in the first three rows and made a sweeping gesture. “The Feres Doctrine tells these good folks that the doors to the courthouse are closed for them. The Feres Doctrine says that equal justice under law does not apply if you risk your life to protect our country.”

  He turned back to Judge Solberg, his voice low and dramatic. “I’m not saying that Your Honor should ignore the doctrine; I’m just saying it doesn’t apply to CIA operatives, because they’re civilians. Troy Anderson died as a civilian, defending our rights. His family should not be denied their day in court.”

  Wyatt took his seat, unbuttoned his suit coat, and leaned over to Paige. “We’re on a roll,” he said. “Don’t screw it up.”

  “Thanks.”

  Paige stood, and she could sense that her argument would be anticlimactic. The reporters already had their quotes. Wyatt had been Wyatt, and he had brought raw emotion to the surface. But Paige had a role too. Wyatt was flash; she would provide substance.