“Staff Sergeant,” interjected James, “We can’t answer that. We have no idea whether it was a fluke or not. And, I suggest, neither do you.”
“Just checking. Sir,” answered Biff, who was appalled, as ever, at the dogged literal minds of visiting lawyers, men who probably earned more in a year than he would in a lifetime.
“Yousaf,” said James quietly, “I am going to review the evidence of your case. And then I am going to file an application in Washington for a legal appeal on your behalf. I anticipate you may be free to return to Pakistan within four months. Maybe sooner.”
“Thank you, sir,” said Yousaf, trying to affect a facial expression that was both grateful and ingenuous.
“And just one more thing,” said James quietly, “Do you have any other friends in here who might also be released under the same system we are using for you? That’s the obvious illegality of locking people up without trial for the rest of their lives, even though there’s no proof of guilt.”
“Ibrahim and I have two friends in here. Number Eleven and Number Fifteen. They are innocent and have never been to a proper courtroom, just the one full of military officers.”
“I need to know their names,” said James, “Otherwise we can do nothing.”
“I don’t think they have ever revealed their names,” said Yousaf. “And they have no documents. Like me.”
“Then I guess they’ll have to stay right here,” said Tom.
“Sir,” replied Yousaf, “the man in cell number eleven is Ben al-Turabi. Number fifteen is Abu Hassan Akbar.”
“What were they charged with?”
“I don’t know if they were ever charged. They’re both just here, forever. Ben was only a student when he arrived.”
“Yeah, and I’m the quarterback for the Cowboys,” growled Biff.
James Myerson grinned good-naturedly, and said, “I wonder, Staff Sergeant, whether you could take us along the corridor to visit Mr. al-Turabi and Mr. Akbar.”
“No problem.”
By now the word had whipped around Camp Five Detention Center that two hotshot lawyers from Washington were in Guantanamo with a brief to secure the release of jihadist prisoners. The Great Osama had come through at last, with heavy sums of money and top attorneys to speak for the Muslim warriors.
By the time Myerson and Renton reached al-Turabi’s tiny cell, the excitement in the air was intense.
“Welcome to my humble world,” beamed Ben.
Renton formalized his identity, confirming Ben’s name, and that he had been briefly accused by the tribunal of having committed various crimes against humanity before his arrest in the mountains. But that was several years ago and since then Ben had been held without charge or trial.
The two lawyers went through the same broad-brush procedures with both Ben and Abu Hassan Akbar, who strongly denied he had ever fired a rocket or a bomb at anyone, did not know how to make one, and had been in Baghdad helping the Red Cross when he was arrested.
“They mistake me for very bad men,” he assured them.
“Holy Shit,” breathed Staff Sergeant Ransom.
Akbar told Renton and Myerson there had been lawyers here before to try to obtain his release but nothing had worked. The military had neither tried nor released him. He had almost given up hope of justice.
James Myerson told him there was now hope, since Akbar could not be denied his day in court, and it would be a civilian court at that, presided over by a civilian judge. He and his colleague would argue the appeal, and there was a real chance of freedom for Abu Hassan.
Cutting short the interviews, James and Tom established that both the prisoners had been born in Gaza City and had cut their teeth with Yasser Arafat’s terrorists. They told both men they would be furnished with proper addresses, and from now on would use their proper names.
The lawyers then retired to the offices of Colonel Andy Powell to request access to the files on Ibrahim, Yousaf, Ben, and Abu Hassan. This was formally granted, but the most difficult part came when the files were produced. These four men were accused with some of the most shocking crimes of modern times, particularly Akbar, whom Tom remembered “had killed all those kids at the Be’er Shiva bar mitzvah.”
Even the ruthless James was slightly shaken by the level of criminal he was being asked to liberate. But the image of Josh Epstein stood stark before him, and he made his copies, studied the documents, and resolved to keep that billing clock ticking above 12th Street, no matter what.
THEY ARRIVED BACK in Washington the following evening and began work immediately on filing for the writ of habeas corpus. When the documents were completed, they were dispatched to the Pentagon and on to Guantanamo for the signatures of all four prisoners, plus those of the Joint Detention Group commander, who was required to sign off on the releases of the detainees.
The case was filed and allocated a slot on the appeals court calendar for Monday morning, February 19, coming before Chief Judge Stanford Osborne, who would be assisted in his deliberations by Judge Art Cameron and Judge Merrick Rosser. These details were expedited with zero delays.
The appeal would be heard in Court 11, on the fourth floor of the E. Barrett Prettyman Courthouse, named for the brilliant Truman-appointed chief judge, the man who was selected to decide whether Frances Gary Powers had handled himself correctly after his U-2 spy plane was shot down over the Soviet Union in 1962.
This monumental courthouse also contained judicial officers and staff, the probation office, the circuit library, and circuit executives offices, all guarded by squads of hard-eyed U.S. marshals. It is a cathedral to the majesty of American law, and on February 19, within its massive gray concrete walls, a ruling would be made upon a truly stunning application for the release of dangerous men. It was an appeal that was in danger of causing Harry Truman to rise up in fury from his grave in Jackson County, Missouri.
Proceedings were conducted in the lowest possible key. The left-wing bias of the United States media ensured the minimum was written about the appeal, and neither did the op-ed pages spend much time discussing the wisdom of granting these astonishing human rights to foreign terrorists whom the military believed were guilty of murder, mayhem, and other dreadful crimes against the United States, who ought not to be alive, never mind freed.
But the law of the land had been decreed. Justice Kennedy had decided that the moral and fair standards of justice practiced for centuries by the United States ought not to be put on hold just because a bunch of Middle Eastern maniacs were running around killing people. America’s rules of just and equitable behavior must be seen to be enacted at all times. Most of the judges believed that, and the president really believed it. Which was why, at 0730 on the morning of February 19, a military night flight from Guantanamo Bay, Cuba, touched down lightly at Andrews Air Force Base northeast of Washington, DC.
Disembarking, still in manacles, surrounded by armed army guards, were the four terrorist killers, Ibrahim Sharif, Yousaf Mohammed, Ben al-Turabi, and Abu Hassan Akbar. A military prison van awaited them, and they were taken immediately to 12th Street for a final meeting with their lawyers.
At 0943 they were led to the bank of elevators in the great appeals court building on Constitution Avenue, and from there they were escorted up to the courtroom on the fourth floor.
They would not be permitted to speak during the hearing. The petitioning lawyer, James Myerson, would plead his case for the release of the men, and the military, formally objecting, would be granted just five minutes to make their case. Their view was simply stated, that Ibrahaim, Yousaf, Ben, and Abu should be returned to Guantanamo and locked up immediately, with their cell keys hurled into the sprawling minefield to the north of the compound. Biff Ransom would probably have gone one step further.
Cases such as this were essentially unknown territory. There was, as yet, no tried and tested formula. An appeal was not a trial. There would be no witnesses. And each side was permitted two lawyers maximum. In this instance, only on
e would speak for each side.
The judges had already read submissions from each side, and accepted the writ of habeas corpus. The format for the hearing had been worked out only on the previous evening by the clerk to the court, and he acquiesced to the request by James Myerson that the appeals by the four petitioners should be heard jointly and severally, rather than in four separate hearings.
There were, however, many people occupying the seats behind the hub of the courtroom, and the entire fourth floor was in the iron-grip of the U.S. marshalls, off limits to the public, out-of-bounds even to the legal profession.
Inside Court 11, there were probably a dozen military officers, three politicians, and six members of the CIA. The four petitioners, smartly dressed in jackets and ties but still manacled, were seated with armed army guards both between them and on the flanks.
The most unlikely group in the entire courtroom were four anonymous representatives from the Israeli embassy, and you needed to be a real insider to understand the purpose of their attendance—that Israel wanted Ben al-Turabi and Abu Hassan at least as badly as the Navy SEALs wanted Ibrahim Sharif and Yousaf Mohammed.
If necessary the Mossad was quite prepared to take over and haul them off to Israel for execution. What terrified them was this American judge was about to liberate Ben and Abu—liberate the two men who had killed and maimed so many people in two of the worst atrocities ever committed in Israel. The Mossad’s oft-stated motto is, We Never Forget. The unwritten one is, We Never Forgive.
Captain Al Surprenant, the top lawyer for the Navy in the San Diego base, had flown in the previous day in company with three senior SPECWARCOM commanders.
The SEALs had spilled a lot of blood bringing down men like Ibraham and his buddies, and each one of the U.S. Special Forces in that courtroom was hoping the steely, silver-tongued resolve of Commander Surprenant would compel the judges to see reason. Military reason, that is, which is not always the same as civilian reason.
“All Rise!” The court officer called the room to order as Judge Stanford Osborne led the justices in. All the principal figures in the appeal were familiar with the facts.
And the justices understood the enormous difficulty for the military to provide proof, civilian court proof, that these obvious scoundrels who were petitioning had indeed committed the crimes of which they had never really been accused.
That of course was not the issue. Could it be fair and reasonable for the United States to act like some banana republic and lock up these men, indefinitely, without trial, without reasonable proof of guilt, and without appeal to anyone? They were, after all, members of the human race.
James Myerson was invited to begin, and he stood before the court and argued that, despite the beliefs of the military, there were massive issues here about the burden of proof. “Maybe these men had committed crimes,” he said. “But no one saw them. No one bore witness to anything. And each of these men swears by his God that he is innocent.
“I am not here to protest their innocence. I am here to plead that never, in all the annals of United States law, from the Founding Fathers to the twenty-first century, has it been acceptable, has it been regarded as legal, fair, or even reasonable, for a court in the United States of America to declare that it does not care one way or another whether the accused are guilty or not.
“That’s not America, your Honor. That’s Stalin. That’s Pol Pot or whatever the hell his name was. That’s a banana republic. Not us. No, sir, not us at all. And whatever the rights and wrongs, these men have spent many years of pure hell in one of the cruelest prison camps in the Western world.
“And with every passing month, while they endured forms of torture and deprivation, their very presence on that Godforsaken outpost of U.S. civilization has tarnished and dishonored our great nation. It has sullied us, reduced our reputation in the world, poisoned opinion against us.
“Your honor, this cannot be right. And I beseech you to end this most terrible stain on the name of American justice. I’m imploring you to free these four men, allow them to return home, and help the world to understand that we are indeed the bright City on the Hill, the shining hope of the human race. That we are Americans, to whom a lack of fair play is nothing less than abhorrent.”
Myerson sat down next to Renton, who subtly patted him on the shoulder. Judge Osborne nodded his appreciation of the manner in which Myerson had delivered his case. And the clerk signaled for Captain Surprenant to proceed with the motion for the military.
The Navy attorney stood and briefly reminded the justices that the U.S. military had tracked and grabbed Ibrahim Sharif from the remotest of Afghani mountain villages, where Yousaf Mohammed was also hiding out. There was plainly no doubt that these men were bomb makers. With assistance from another Middle Eastern Intelligence Service, they had been identified with no reasonable doubts. Well, almost.
The other two were high on the list of Israel’s most wanted mass murders, and they were both from Gaza City. “I understand,” said the captain, “that the evidence was not one hundred percent decisive, and that it was, in a sense, circumstantial. But no one would dispute it was ninety-eight percent decisive. Circumstantial or not.”
He outlined the crimes and the continuing dangers posed by such men. The scale of the mayhem that might break out if such men were free to return to the lands where they plotted and launched the 9/11 attacks.
“Your Honors,” he continued, “These men are disciples of Osama bin Laden. All of them are members of the most sinister terror groups in the Middle East. The world has changed. These men do not fight in uniform, they do not represent Nation States. They are secretive, underhanded killers, who strike indiscriminately at both military and civilian targets. They have loyalty only to fellow jihadists. They observe no national borders. No nation even recognizes their organizations, with the exception of the pariahs of Iran and the West Bank.
“There are no standards in the world today by which such men can be judged. They render, by their own actions, the Geneva conventions and protocols obsolete. I am not pleading for them to remain in jail to justify some ephemeral and hopelessly outdated sense of fair play. There is no fair play left in our fight against terrorism. That ended around 9 a.m. on a Tuesday morning in September 2001.
“Your Honors, I cannot believe you are prepared to grant this appeal, to liberate these men who will surely come at us again. Every military expert in the country understands that they cannot, they must not, be freed to fight again. We might be the City on the Hill, the beacon of freedom and fairness, but those four men, the ones in manacles in this courtroom, would surely flatten it, given even a semblance of a chance. I ask their appeal be denied.”
The clerk immediately declared a recess for the judges to retire to consider their verdict. A timeframe that would, unusually, be announced within the hour.
It was soon announced that the decision would be at 3 p.m., and when it came, the entire law enforcement and security forces of the United States of America understood that this was the appeal that was decided before it was heard.
“We have listened to the arguments,” the judge said. “And we have studied the evidence exhaustively. We are unanimously drawn to the truth that the moral standards of the United States of America are being examined here, and that Captain Surprenant offered the most compelling case to cast them aside.
“However this great nation’s sense and reputation for what is right, respectable, and fair, must always be paramount. Otherwise, we should perhaps ask ourselves, who indeed are we? But it was with some misgivings that we nonetheless reached an irrevocable decision.
“We could not bring ourselves to abandon the light that has guided this nation for so long—the light carried down the centuries, and first illuminated by Adams, Jefferson, and Franklin. The simple light of fairness, for everyone.
“That is the most important thing in all the world for us. And holding men in endless incarceration without even a trial, without giving them a cha
nce, crosses that line, and it takes us into the darkness, which lies on the other side of decency.
“Therefore this court finds unanimously for the petitioners. The appeal is granted. Ibrahim Sharif, Yousaf Mohammed, Ben al-Turabi, and Abu Hassan Akbar, you are freed this day by the Court of the United States of America to go about your lawful business.”
The words of Judge Stanford Osborne seemed to echo throughout the corridors of the Pentagon, ringing through the grim offices of the CIA and the FBI. Republicans were stunned, and a new era of caution began to waft through the ranks of the stone-faced Navy SEALs training in Coronado.
One of the SPECWARCOM commanders jolted back in his seat, as if he had been shot. And all four of the men from the Israeli embassy instantly stood up and left the courtroom.
3
NEWS OF THE JUDGMENT in Court 11 ripped around the nation. The army major in charge of the four men’s security hit the cell phone line to the Pentagon and asked blandly, “What do I do now? Unclip the manacles, say goodbye, and wait for something to blow?”
An army colonel on the other end suffered a complete collapse of his sense of humor, and growled, “Keep them under DC Superior Court control. Get ’em back in the prison van.
“Then take them direct to the U.S. marshals’ cell block, down in the basement of 500 Indiana Avenue, Washington Northwest. They got a big holding pen in there. And don’t let ’em out ’til we fix flights out of this country. We don’t want ’em back.”
CIA Chief Birmingham, with three of his senior officials, stared in horror at the CNN newsscreen. It seemed like every phone in Langley was ringing. What the hell was going to happen? Birmingham hit the line to the State Department, direct to the secretary’s office.
The call was only just on the south side of panic.
“Jesus Christ! They’ve got to go somewhere.”
“Pakistan’s the most likely country, but they don’t have a flight out of here until tomorrow.”
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