Rule of Law

by Randy Singer

  “If I may, I’d like to briefly address the Feres Doctrine before I turn to the state secrets issue.”

  Solberg nodded and Paige thought she detected a hint of empathy from the judge.

  “A few days ago, a representative from the Joint Special Operations Command paid a visit to the family of Troy Anderson. The purpose of the visit was to give Kristen Anderson an additional check representing death benefits payable to families of CIA operatives. My client was grateful for the help, and I mention this only because our government has made a conscious decision to treat Mr. Anderson and his colleagues as members of the CIA for all purposes except for their arguments in this case. Interestingly, when Mr. Pierce told you the amount of death benefits the Anderson family has received, he conveniently left out the CIA death benefits because those benefits are proof positive, even without the testimony of Director Marcano, that the government is treating Troy’s death as the death of a civilian employed by the CIA.”

  Paige watched as Judge Solberg made some notes. Then Paige transitioned into her state secrets argument. Relying heavily on case law and reading most of her argument, Paige made two main attacks.

  First, she noted that the state secrets doctrine was an evidentiary privilege that only rarely required throwing out an entire case. Even if there were state secrets involved, the court should decide whether the case could proceed without disclosing sensitive military secrets or whether those secrets were so central to the case that any attempt to proceed would threaten disclosure.

  “Our evidence does not rely on state secrets,” Paige said. “We are prepared to prove our case without disclosing any sensitive military information.”

  There were ways the court could test whether state secrets would be critical in the litigation of this case, Paige argued. For example, Paige and Wyatt could be granted leave to take the depositions of the defendants in the presence of only the judge, and those proceedings could be kept under seal. The defense lawyers could object to anything that might involve a state secret. In other words, the court should dig deeper into the matter and not just throw the case out at the beginning.

  And second, a state secrets defense did not apply anyway, because this mission was a thing of the past and the trial wouldn’t expose any secrets about future missions. The bin Laden mission, which also involved SEAL teams deputized by the CIA, had been talked about—no, make that bragged about—by the Obama administration ad nauseam.

  “They provided a minute-by-minute account of what they knew in the Situation Room and how they knew it. And nobody suggested that the Obama administration was somehow divulging state secrets. That’s all we want—historical information about who knew what and when they knew it. Congressional committees investigate these types of things all the time.

  “The court can protect the names of CIA operatives in Yemen. We just want to know whether the president and these two defendants had information before the raid started about the mission being compromised. If they did, that’s not a state secret whose exposure would jeopardize national security. That’s treason.”

  There—she had said it. Paige had wrestled until two in the morning about whether she should be so bold as to label this treason. But in the heat of the moment, she had decided to show them that Wyatt Jackson wasn’t the only one who could provide a quote.

  43

  After an hour-long recess, Judge Solberg returned to the bench. She had told everyone that she would rule from the bench and follow it up with a written opinion a few days later. Paige had spent the recess preparing Kristen for the worst. She reminded Kristen that even if they lost, they could appeal this case to the Fourth Circuit and ultimately to the Supreme Court.

  Solberg studied her handwritten notes, then surveyed the courtroom. “This is an important case, and it raises substantial constitutional issues,” she began. She adjusted her glasses and peered down at her paper. “The inquiry today pits the role of the courts in our search for truth against the role of the executive branch in keeping this nation secure. As plaintiff’s counsel has pointed out, the president cannot just say ‘Trust us’ and expect the court to drop the matter. On the other hand, this court must be careful that by adjudicating the case, it does not expose military matters that might jeopardize national security.

  “I will begin my analysis with the question of whether the Feres Doctrine prevents this case from going forward. As defense counsel has pointed out, the Feres Doctrine is an absolutely critical part of our national security because it keeps the courts from second-guessing military decisions made on the field of combat and also because our troops are provided benefits in other ways. And as defense counsel has also noted, the ultimate test is whether the death of Mr. Anderson was incident to military service.”

  As Judge Solberg delivered her opinion, Paige jotted notes. She was so tense that she could hardly write. She couldn’t bring herself to look up as the judge continued.

  “The court finds that the Feres Doctrine does not apply under the unique facts of this case.”

  There was a murmur in the rows behind Paige. She heard someone whisper a forceful “Yessss.” For the first time since the judge had started reading her opinion, Paige looked up.

  “The integrity of the courts requires that litigants not be allowed to make a claim in legal proceedings that is inconsistent with what they claim elsewhere. If the SEAL team had gone into Yemen as an act incident to war against the Houthis, they would have been violating our nation’s laws. Instead, the president and CIA director sent them in as CIA agents—civilian operatives in a country where Congress has not declared war.

  “The government cannot have it both ways. They cannot say the action was lawful because the SEALs were acting as civilians but then come into this court and claim they were actually working for the military. Accordingly, I am denying the motion to dismiss based on the Feres Doctrine.”

  Judge Solberg flipped a page, and Paige stole a glance at Dylan Pierce. He had leaned back in his chair and was no longer taking notes. He eyed the judge with thinly disguised contempt, his look promising that she would be reversed on appeal. But the judge didn’t seem to notice. She had already moved on to her second point, the most important roadblock in the way of justice for the Anderson family.

  “But there is a second matter.” Solberg’s voice was conversational but firm. Her ruling might get reversed, but there was no doubt that she believed she was doing the right thing.

  “The court finds that the defense has raised a valid claim of state secrets,” she said.

  Paige felt the roller coaster drop and her stomach lodge in her throat. They had lost on the issue she had argued. Though she had expected it, she still felt like she had just been run over.

  “I have considered both the unclassified and classified declarations from Director Marcano. There is no doubt that litigation of this case will touch on matters that are considered state secrets.”

  Solberg paused, surveyed the lawyers, and then continued. “But that doesn’t end the inquiry. The test is whether the case can be fairly litigated without resorting to state secrets or whether the state secrets are so central to the case that moving forward will threaten national security. This court is not required to take Director Marcano’s word for that. At the very least, in a case that calls into question the integrity of the very man who signed the affidavit, this court should try to find a way that the lawsuit can proceed while keeping privileged information from being disclosed.”

  Paige’s emotions took another dramatic swing. What was Solberg saying? Were they going to be allowed to proceed?

  “For example, the plaintiff may be able to prove the allegations set forth in her complaint without reference to any state secrets at all. She could do this by using nongovernmental witnesses to show that the president or her chief of staff or the CIA director knew that this mission was doomed. Perhaps there are documents that don’t contain state secrets but will help prove the case.

  “And as Ms. Chambers arg
ued, we debrief missions like this all the time without disclosing classified material. Nobody thinks that Secretary of State Clinton violated national security when she talked about the discussions leading up to the bin Laden raid and how she argued to move forward with the raid while others were against it. Isn’t that the same kind of thing we’re talking about here?”

  Another flip of the page as the judge’s remarks picked up steam. “On the other hand, the defendants may be right that they can only show us what the president knew by exposing state secrets about CIA operatives. But how will we know any of this if I just dismiss the case?”

  She let the question hang in the air for a moment and Paige let out a breath. Out of the corner of her eye she saw Dylan Pierce stand at his counsel table as if he wanted permission to answer the questions the judge was posing.

  “Sit down, Mr. Pierce. I’ll give you a chance to respond in a moment.”

  Pierce sat, but he wasn’t happy about it.

  “This court has a duty to proceed as far as possible in its search for the truth. The court will therefore grant the plaintiff the limited right to conduct discovery and depose witnesses. However, for any witness who is now or has in the past been a government employee, those depositions will be done under seal in my closed courtroom, and I will preside as judge. Defense counsel may object to any question they feel violates state secrets and I will rule on it immediately.

  “Mr. Jackson and Ms. Chambers, let me make this clear. If I find that matters of state secrets pervade the depositions, I will have no choice but to dismiss this case. Is that understood?”

  Wyatt stood immediately. “We understand, Your Honor.”

  “Your Honor.” Dylan Pierce was standing again.

  “Yes, Mr. Pierce.”

  “In the El-Masri case, the court noted that allowing litigation when the executive has asserted a state secrets privilege may force disclosure of the very thing the privilege is designed to protect. In light of that, we would ask you to reconsider or, at the very least, mandate that anyone who attends these closed depositions have top-level security clearance.”

  Solberg thought about this for a moment. “I won’t reconsider my ruling. But I do think it’s reasonable that anyone attending these depositions, including the lawyers for the plaintiffs, have clearance to view classified information. I don’t think top-secret clearance is necessary, and I will order the government to expedite its review of any clearance applications that need to be filed.”

  “I object,” Wyatt said. “The court has already said that we won’t be getting into state secrets in these closed proceedings, so—”

  Solberg held out a hand. “No, no. I think he’s right, Mr. Jackson. At the very least, plaintiff’s counsel and the court reporter should have security clearance. I’m instructing the government to process security clearance applications for all of you expeditiously.”

  Wyatt started to speak again, but Solberg tilted her head and warned him off. “If I were you, Mr. Jackson, I would be grateful for today’s ruling. I’ve gone as far as I can go.”

  “Thank you, Your Honor,” Wyatt said, sitting down.

  Under the table, Kristen reached over and squeezed Paige’s hand. SEAL Team Nine was still in the game.

  That afternoon, Wyatt took a nonstop flight from Norfolk to New York and did the cable news tour. He was his usual bombastic self, crowing about the court’s ruling and promising the good people of America that he would get to the bottom of what had happened that fateful night when the SEALs died.

  Paige went to Kristen’s house and helped put the boys to bed. Afterward they sipped glasses of wine in the living room sitting face-to-face on the couch, their legs curled under them. They swapped stories about the magnificent events of the day and made fun of Dylan Pierce and Kyle Gates and Wyatt Jackson. They thanked God for Daniel Reese, and Paige made a note to call him in the morning. And most important of all, they raised their glasses in a toast to the boys from SEAL Team Six.

  44

  This time the anonymous call came in the middle of the day, just before noon. Paige expected the voice of the Patriot, but she was surprised by the thin and reedy voice of the nervous young man who had told her about the drone strike.

  “Congratulations on your win yesterday.”

  “Thank you.”

  Paige pressed 4 on her keypad. After the last call, Wellington had enabled the call recording function on Paige’s smartphone. Now she just had to keep this guy talking.

  “I was hoping you would win. The government is definitely hiding something.”

  “How do you know this?”

  “Like I told you last time, they asked me to lie about some things.”

  “Are you being honest with me now?”

  “Of course. I don’t have any reason to lie.”

  He sounded a little defensive, Paige thought. “Can you tell me your name?”

  “No.”

  “How can I get in touch with you?”

  “You can’t. It doesn’t work that way.”

  “Last time you said that you and some other drone pilots were asked to lie about a drone strike that occurred on March 11. I researched it like you asked me to do.”

  Paige waited for a response. The last time they spoke, this man had not revealed that he was a pilot—only that he and others had been asked to lie about drone surveillance.

  “What did you find out?” he asked

  Paige smiled to herself. He was a drone pilot. “That three Houthi leaders were killed. That the Yemeni coalition government took credit for it, but that you or one of the other pilots fired the missile.”

  “That wasn’t my mission.”

  “Why did the CIA want you to lie about the surveillance associated with that strike?”

  He hesitated. “I don’t know. They didn’t say.”

  “Have you killed civilians? Is that why you’re calling me? Too many civilians have died?”

  “No. It’s got nothing to do with that.”

  “Then what does it have to do with? And how do I know this is connected to my case?”

  “Get the actual surveillance footage. It’ll show how long we had been focusing on that compound.”

  “I can’t do that—the surveillance footage is protected. So you have to tell me. How is it connected to our case?”

  The man hesitated before answering. “I don’t—if I figure it out, I’ll call back. But you can’t tell anyone that I’ve called. Not even your client.”

  “I understand,” Paige said. She tried to keep her voice reassuring. She was going down the checklist that Wellington had prepared, question by question.

  “Who asked you to lie? Can you give me his name?”

  “No, but I can tell you that the conversation took place the day after the SEALs died.”

  Paige’s heart started beating faster. “Let me get this straight—you’re saying that the conversation in which you were asked to lie happened one day after the SEALs died?”

  “I can’t talk anymore. I’ll call back if I get more information.”

  “Wait—” But it was too late. The drone pilot was already gone.

  Paige immediately dialed Wellington. “Get over here,” she said. “I just got a call from our friend at the CIA.”

  Though the number itself was untraceable, the recording was clear enough to hear every word and every inflection. Paige watched Wellington hunch over his computer, his face a few inches from the screen. He had installed voice stress analysis software that served as a sort of crude lie detector for audio recordings. Wellington swore that the accuracy rate was above 90 percent.

  He worked for about ten minutes, then called Paige over. “Watch this graph,” he said.

  As the audio played on Wellington’s computer, they watched the stress level in the drone pilot’s voice. He was incredibly nervous, and the meter registered consistently high, but for most of the conversation the software concluded that he was telling the truth. It spiked into the fabrication ra
nge on only two questions. The first was when Paige quizzed him on why he had been asked to lie about the surveillance.

  “I don’t know,” the pilot had said. “They didn’t say.”

  And on the very next question, even though the pilot hadn’t hesitated before answering, it registered a fabrication again. “Have you killed civilians? Is that why you’re calling me? Too many civilians have died?”

  “No. It’s got nothing to do with that.” The meter spiked again.

  “He lied,” Wellington said matter-of-factly. “But you asked him a compound question. It’s hard to know which one he was answering.”

  They finished listening to the tape, and Wellington typed some notes, thinking out loud as he did so.

  “Here’s what we know. Drone pilots running missions in Yemen were asked to lie about how long the CIA had been doing surveillance on the compound that was bombed on March 11. Our guy was told to lie the day after the SEALs were killed. They told him why they wanted him to lie, though the pilot for some reason wasn’t willing to tell us. And he’s probably killed a bunch of civilians.”

  Wellington and Paige stared at the notes for a moment. “I keep coming back to my theory that Holloman was a CIA agent,” Wellington said. “Holloman gets arrested shortly after this drone strike on March 11. The Houthis claim he’s a spy. Maybe he discovered this compound while he was in the country doing interviews. The CIA wants people to believe that they had been watching that compound for nearly a month, well before Holloman came into the country.”

  “That all makes sense,” Paige said tentatively. “But it still doesn’t explain why the president would send SEAL Team Six in if she knew it was a trap.”

  “Maybe she didn’t know for sure it was a trap. Maybe she was worried about Holloman giving up state secrets and wanted to rescue a CIA agent.”