W: The Planner, The Chosen

by Alexandra Swann

  “The second argument is that the jury system and the system of trials was not set up to deal with war-time emergencies or national terror threats. To have to provide specific evidence of actions committed by detained persons is unworkable because many of these persons have been detained before they ever were able to actually commit an act of violence. The detainees have demonstrated a gross disregard for the United States government, for its people and its laws. They have demonstrated a desire to act in a manner injurious to the American way of life. The burden of proof requirements that a trial places on the government might obscure the larger issue of the ill-intentions of these people and might confuse juries into acquittals, simply because the targets have not committed a specific act of terrorism. This, in turn, might lead to the release of highly dangerous targets simply because the jurors did not recognize that actionable evidence of a terrorist act is sometimes not as important as intent to commit such an act.”

  “So what they’re saying is, ‘If we have to put these guys on trial we can’t actually show you where they have ever done anything wrong, so instead we are just going to lock them up forever because we are pretty sure that in the future they will do something. We’re just getting them before they have a chance to get us,’” Keith interjected.

  “Pretty much,” replied Julian. “And this is the crux of the argument—do we have the right as a society to incarcerate somebody for something they might do if they have not done it yet? Does wanting to kill somebody make you guilty of killing them if you don’t act on it? Morally, maybe, depending on your worldview. But legally, the desire to commit a crime, even if it can be proven, should not be grounds for arrest and detention if no actual crime has been committed or threatened.”

  “But is it a good argument?” Kris asked. “Years ago when I was just out of college, I was stalked. It was a guy I had shown one of my dad’s model houses to—suddenly he was hanging around me all the time, calling me at work, watching me constantly. My mother finally insisted that I call the police because we could not get rid of him, and they told us that as long as he had not harmed me there was nothing they could do about it. That was the way the law used to work—it didn’t matter what you wanted to do, only what you actually did.”

  “And there’s the rub. In an effort to prevent terrorist attacks, and protect women from stalkers, we have legislated more and more against evil intent rather than just evil actions. We try to head off problems before they manifest into a World Trade Center bombing, or an Oklahoma City Federal Building bombing, or even just a stabbing by an unstable guy with a crush. The Administration is going to argue that section 1021 of the NDAA is just the next step in a process that we have already embraced in preventing crime rather than just punishing it after it occurs. And they will point to every case they have of any mentally deranged person who has threatened to blow up a public building in the last three years as proof of the attacks they have stopped. “

  “Will it work?” she pressed.

  “It depends on what the Justices think about the protections of the Constitution versus the ongoing effort to protect society. If the Constitution is the only guide in this case, yes, they will rule in our favor. But if they buy the Administration’s argument that the ‘public safety’ trumps Constitutional protections they will rule against us. And it may be a very close vote from a divided court. This could come down to just one Justice ruling on the side of the Constitution or on the side of protecting public safety. In the meantime, the Administration’s effort to regain public support for 1021 is going to be fought under the banner of protecting the public. This morning there was a story online about how intelligence gathered through federal investigations prevented a bombing at the Mall of the Americas last year. Supposedly, they were able to detain one member of a domestic terror cell who was planning to blow up the mall on black Friday when they knew it would be the most crowded. Because they were able to detain this suspect, who as it turns out is a twenty-five year old kid who just got out of the military and wanted to make a statement against the government, the Feds were able to interrogate him and get enough information to pick up his friends. Their actions saved the lives of thousands of people who would have been killed in the explosion. You can be sure that more of these stories will be circulated in an effort to convince the American people that section 1021 is absolutely necessary to save lives.

  “There is one more item in their response that is really fascinating to me, and I wanted to share it with you before you leave,” Julian continued. “The final argument that the Solicitor General makes against giving trials to the detainees is that the cost of bringing the detainees to trial would be burdensomely expensive to the taxpayers since they would each incur court costs, and many would require a defense furnished for them in accordance with the U.S. Constitution. The number of trials that this would necessitate would also be ‘unduly burdensome on the court system, restricting the normal administration of justice.’ Therefore, in the interests of saving the taxpayers money and keeping the courts flowing, they ask that the detainees be denied the right to a trial.”

  “Yeah, since when did anybody in this government care about saving the taxpayers money? If there’s one thing we ought to be spending money on, it’s trials for the people who have been scooped up without any due process,” Keith remarked. “But say, I thought they had less than one hundred people detained—or at the most just a few hundred people locked up out of the whole entire United States. That shouldn’t bankrupt the taxpayers or overburden the courts. They ought to be able to get those trials out of the way in a couple of months.”

  “Exactly,” answered Julian. “That’s my point. The Administration’s main talking point is that The Line Up is a lie. No more than a few hundred people, at most, have been detained. But this argument is an implicit admission that the real numbers are much higher—much closer to the numbers that NDAA opponents have been using. You’re right on point about this—if it were only a few hundred people, the cost argument does not stand. But if we are talking about somewhere between 50,000 and 100,000—which are the numbers that many people believe are more accurate—those kinds of numbers are the equivalent of putting every resident of a small city on trial. The court costs would be staggering, plus there would be the issue of finding legal representation for all of the detainees and of scheduling the trials. So this…” he tapped the Solicitor General’s response with his pen, “this is a very interesting turn of events. To pursue this argument, the government may finally have to stop dancing around this issue and provide us with an accurate number of men and women who are being detained.” Julian looked victorious.

  Kris noted his exuberance, but she did not share it. After all, did it really matter how many Americans had been detained if the Court did not rule that their confinement was unconstitutional? “That’s promising,” she tried to sound upbeat. “What’s the next step?”

  “Now that I have filed and the Solicitor General has responded, the Court will schedule the oral arguments.”

  “So, you go in and present the information in your…brief, or whatever?” asked Keith.

  “Not exactly. The Justices will have already reviewed the brief and the response. The oral arguments give us an opportunity to answer any questions that the Court may have. They will also give us a good indication of how the Justices feel about our arguments. We can determine a lot about how our case looks from the questions they ask and how they respond to our answers. I will let you know as soon as we have a date to appear before the Court. In the meantime, keep giving the interviews, and keep your heads down when you’re not in front of the media. It should be only a few weeks before we are on the docket.”

  Keith and Kris said goodbye to Julian and stepped out of his office into the chilly autumn afternoon air. The trees were turning bright gold and orange as they drove back to Baltimore. Kris wondered how Michael and Jeff were dealing with the fall weather. Were they cold? Were they outdoors in tents? Were they being held under
ground where they could not even see daylight?

  Julian was doing his best work on this case—of that Kris was completely certain. She appreciated his hard work and his diligence, but she wished sometimes that she could shake him and tell him that he needed to work faster. Then she would remind herself that he had always told her that this could be a long process. At least they were moving through the channels to get a ruling that might release Michael and Jeff and reunite their family. For now, all she could do was wait and pray.

  Chapter 23

  “Tonight our special guest is Supreme Court Chief Justice Franklin Prescott Dillon,” host Brent Adams announced to his primetime television audience. Adams hosted the top-rated political talk television show in the U.S., and when the announcement was made that the Supreme Court would hear a case to rule on the constitutionality of the provisions of the NDAA that allowed the arrests, detentions, and executions of American citizens without a trial, Adams had moved quickly to secure the first interview with the Chief Justice.

  Franklin Dillon was already seated in one of the guest chairs behind the curved desk that dominated the set of The Brent Adams Show. Dillon disliked being on camera; he was a man who always chose his words carefully, but seated at that desk with millions of Americans watching, he was afraid that he would say something that would make him sound foolish or, at least, unprepared. He had agreed to come on the show only because a controversy had erupted as to whether the Court could legally hear cases and hand down decisions when the Supreme Court Building was in lockdown. Because President Quincy had said that he wanted the case heard immediately, however, Dillon was determined to address the matter personally in a public forum.

  “Mr. Chief Justice,” Adams began, “as you know, there is widespread disagreement over whether the Court has the authority to act outside the Court Chamber. Since the case being brought before you is the first one that the Court has heard in more than three years, the public is concerned that the Court’s decision might later be thrown out on a technicality.

  “We had heard rumors that the Supreme Court Building will be reopened for this case, but this morning Press Secretary John Null said that the building has not been cleared for use and that this will not happen.

  “I think everyone’s concerned that if the Court meets outside the Court Chamber the ruling may later be struck down on the basis that the Court had no authority to hand down a decision from an alternate location. It is being argued that since the Supreme Court Building is officially closed, the Court is not in session, and any decision will be meaningless. Please tell our audience what we do in a case like this.”

  The Chief Justice sat perfectly straight in his chair with his hands folded on the desk in front of him. He looked stiff and uncomfortable, and when he began to speak, his voice sounded strained. “Let me begin by giving you some background on the meeting places of the Supreme Court since it was first established.

  “The Court’s first meeting place was the Merchants Exchange Building in New York City. In 1790, however, the nation’s Capital was moved to Philadelphia. At that time the Court moved with it and set up Chambers in Independence Hall, but later the Court moved to City Hall. In 1800 the federal government established the permanent Capital in Washington, D.C. and, once again, the Supreme Court moved with it.”

  As the Chief Justice warmed to his subject, he began to relax and his voice became less strained. After what had amounted to three years in exile, he was actually enjoying lecturing an audience of millions—educating them on the history of the Court. It felt good to be back in the public’s eye. It felt good to have the entire nation hanging on his every word. It felt good to be in control.

  The Chief Justice continued, “Since no provision had been made for a place for the Court to meet, Congress allowed the Justices to meet in the new Capitol Building. The Court moved a half-dozen times while it was meeting in the Capitol Building—meeting in various rooms there for various periods of time. When the British burned the Capitol during the War of 1812, the Court met in a private residence. Then, in 1819 the Court returned to the restored Capitol Building, and until 1860 met in a room now referred to as the Old Supreme Court Chamber. In 1860 the Court moved for the final time in the Capitol to what is now known as the Old Senate Chamber.

  “In fact, construction on the building that we know as the Supreme Court Building was not begun until 1932. It was completed in 1935, and has been the home of the Court since then, until the building was closed three and a half years ago. I think that the problem is that so many Americans have toured the Supreme Court Building, and those who haven’t have seen so many pictures of it, that they have come to think of the building as the Court.

  “The building was designed to convey the importance and dignity of the Court as a coequal, independent branch of the United States Government. Furthermore, it is a symbol of the national ideal of justice in the highest sphere of activity. However, the Supreme Court Building is not the Supreme Court. The Supreme Court is nine Justices who meet together to rule on the constitutionality of various laws passed by the legislative branch. Since the Court’s inception, the Justices have met in numerous places under widely varied conditions, but those circumstances have not affected the validity of our rulings.

  “Justices are appointed for life, so those appointments impact on the direction the country will take for many years to come. If the Justices succumb to the temptation to legislate from the bench and hand down decisions based on their personal ideas of what is best for the nation, the country suffers. When we do our job, however, and hand down decisions based solely on whether a particular law is constitutional, the country benefits. That is the primary purpose of the Court—to decide whether a particular law violates the Constitution. When the Justices follow those principles, it does not matter where we meet; we will have performed our duty to the people of the United States.

  “Speaker of the House Ron Richards has agreed to allow the Court to meet once again in the Old Supreme Court Chamber in the Capitol Building to decide the case that has been brought against the NDAA. President Quincy has made a public statement that he recognizes the Court’s authority to rule in this matter and will not challenge its decision. Tonight I can assure the American people that the Court’s decision will be both legal and binding.”

  “Thank you, Mr. Chief Justice,” Brent Adams responded. “I am sure that we have all learned a lot about the Court this evening. But let me ask you this: Don’t you think that it might be best to leave the questions concerning the powers of the NDAA to the lawmakers? I mean, after all, if the people don’t like a law, they let their elected officials hear about it. It seems extreme for the Supreme Court to rule on something that can be decided in the houses of Congress.”

  For the first time the Chief Justice smiled, and his eyes sparkled, “Why, Brent, don’t you want to know what we think?” he asked.

  Chapter 24

  Less than five minutes after Kris left the house to go meet with Julian one morning, Keith received a text message on the burner cell phone that David had given him. He had not actually spoken to David since the meeting with Jessie and Kyle, but only David had this number so only David could have sent the text.

  The text message ordered, “Check your email.” Keith logged into the secure account that he had given David for sending the photos, but this email had no photos attached. Instead, Keith read the following message:

  “You are being watched closely. Leave the television on upstairs. Do not go out into the street. Exit the house using the tunnel. When you reach the street, you will see a late model Nissan, license plate GAZ681, parked at a meter. When you reach the car, text STREET, and I will unlock the doors remotely and start the engine for you. Drive to the harbor and meet me by the docks. Bring the mobile phone that you use to communicate with Jessie. Leave now. The situation is urgent.”

  “What?” Keith reread the message. Was this some kind of a joke? David didn’t seem like much of a prankster. Keith r
an back upstairs and turned on the television. He routinely kept all of the windows covered so that passersby would be less aware of who lived there and what they might be doing. That was partly because Keith had always assumed that federal authorities were watching the house and partly because he knew that in a neighborhood as crime-infested as this one someone would surely be watching.

  Hurrying downstairs he opened the tunnel and stepped into it. From inside the tunnel he could only move the temporary wall hiding the opening part of the way—usually the door was closed from inside the house rather than inside the tunnel. He hoped that whoever was watching would not come in and find it. Maybe they were just waiting for confirmation that he was gone to come in and search the house. Maybe the house had been a trap all along. Oddly enough, it never occurred to him that this meeting with David might also be a trap, and he made his way through the tunnel as quickly as he could.

  Keith’s level of physical fitness had varied widely in his life. At one point his weight had ballooned to 250 pounds, and he had not been able to even walk around the park without becoming winded. Three years later he had trimmed down to 145 pounds and had run a half marathon. At this point in his life he was solidly between those two extremes—certainly not overweight and generally healthy but in no condition to run a marathon either. He hurried along at as much of a jog as was possible in the small tunnel with stale air and no light; his pace was just sufficient to allow him to trip a few times without falling down.

  Finally, Keith saw the light from the street. The grate was open at the end of the tunnel, and he slipped out onto the street without being noticed and squinted in the sunlight looking for the car. Across the street from him several cars were parked by meters; he crossed and found the right one. Immediately after sending his text message he heard the car doors unlock and the engine start. Within seconds he was behind the wheel heading to the address David had given him. As he drove his uneasiness grew. Keith liked conspiracies, subterfuge, and cloak and dagger, but the events of the last few months had caused most of the excitement to evaporate leaving, instead, a cold growing fear that he too would become another nameless person in a government prison. When he had lived alone in his trailer near the Lincoln National Forest, he had fallen asleep many nights thinking that one day the Feds would come for him, and he would have a glorious standoff with the government in which he would die in a huge firefight. That had seemed glamorous at the time, especially since there were no federal agents and there was no danger of a firefight—just the night sounds of the forest as small animals fled capture by larger ones and insects sang themselves to sleep. Since his parents’ deaths, the danger had become real and personal—no longer just a fantasy. But witnessing Michael’s and Jeff’s arrests had made it more personal still—he had seen them handcuffed and shuttled off to some unnamed prison, and now he dreamed many nights that he and Kris were being arrested too. In those dreams there was no firefight—no glory—just a terrible icy fear and a sense of betrayal as government agents took him away. He had never told Kris about those nightmares, but they had become so frequent that he dreaded going to sleep. Now as he neared the docks he wondered if this were the day that his nightmares were going to become reality. For the first time, he wondered if maybe this were a trap. After all, what did he really know about David? He had flippantly told Jessie and Kyle that he would vouch for David because he was a good judge of character, but how could he vouch for someone he hardly knew? How could he have revealed so much to a stranger on the basis of a gut feeling?