by Thomas Gatta
“Okay, are you sure you wouldn’t like me to swing by and pick you up? I’m driving my F150, not the convertible, so you don’t have to worry about too much wind or getting your hair messed up.”
“Oh, thanks, no. That’s okay. Probably not a good idea to be in a closed space with you right now. I don’t want to infect you with whatever I’ve got. I hope it’s not mono. Why don’t I just meet you at the Amphora in half an hour?”
“Yeah, that’d be good. Just meet me there. Mono? Don’t think I want that. I’ll get a table for us in the back and order you a cold beer. It’ll make you feel better.”
“Thanks, Sean, I’ll see you in a bit. Bye for now.”
Kate put the phone down and went into her bedroom to get ready. She went to her desk and pulled out another small recording device. This one looked like a roller-ball pen. Kate checked to make sure it was in working order, put it in her purse, and then checked her hair and make-up. She’d do for dinner. And that was all it was going to be. After all, as she’d told Sean, she was feeling kind of crummy. And he wouldn’t want to risk getting mono.
- 27 -
Simon bent over, kissed his wife, Linda, and dropped into the folding chair next to her.
Linda smiled at him and said, “Glad you made it. They’re tied, one-to-one. Megan started in midfield and played about 15 minutes before the coach pulled her out. She actually assisted on the goal, so I don’t know why the coach pulled her. It’s not that hot out, and she doesn’t seem tired.”
“Well maybe she’ll go back in later.”
“Maybe. How was your day? The trial going okay?”
He shrugged. “Okay to both, I guess.”
Simon watched the soccer game for a few minutes and nodded and waved to several other parents he knew.
His wife handed him a baggie with some oatmeal cookies in it and the bottle of Coke Zero she’d been drinking. “Here, you look like you could use a snack. Did you hit traffic?”
“Thanks. Yeah, some. I didn’t have time to go home to change or eat.”
She surveyed his dress pants and shirt and said, “So I noticed. A bit formal for a soccer game, but I’m glad you came, and Megan will be, too.”
Simon munched on the cookies and watched the play. Parents scooted back from the sideline as several girls ran toward them. A forward on Megan’s team had the ball. Simon watched as a defender from the opposite team attacked the forward. The defender got the ball away and tripped the girl from whom she’d stolen it. The defender glanced back at the girl on the ground and grinned. Some of the parents on Megan’s team shouted “foul” and yelled at the referee. The ref looked over at them, shrugged and turned up his hands. He’d seen nothing.
Linda said, “You wait, the next time, he’ll see it if our team does the fouling. This isn’t fair.”
Simon said, “Probably not, but this is the way the game is played.”
Linda looked over at him and studied his face for a minute. “Well, despite what you said, I can tell you’ve not had an okay, fun day. I take it from your expression that your client is guilty as hell.”
Simon, eyes on the field and the ref, who’d missed another foul, said, “Most likely. But we have to continue the game. That’s the way it’s played.”
Linda dug down into the satchel next to her chair. She discovered an apple but dropped that back in. Then she pulled out another baggie of cookies. “Here, these are emergency dark chocolate chip. You qualify as needing them.”
- 28 -
Vivian wasn’t happy. The traffic from Alexandria had been horrible, her husband was running late and couldn’t pick up her daughter Amy, and her son Mike’s football game was scheduled to start in 15 minutes. Vivian also had to change her clothes before heading to the game—she wanted to wear her new Ralph Lauren running suit—and that would mean she’d miss the opening kick-off. The stew she’d put in the crock pot before she left for court that morning smelled great, but neither she nor anyone else in her family would have time to eat it anytime soon. Stupid, stupid court.
Vivian slammed the door on her way out of the house. She hadn’t wanted to be picked for the jury, even though she did think everyone should do his or her civic duty. Vivian just had too many other things on her agenda right now. Fall was a busy time with school starting and all her committee activities picking up. She hoped the trial would be over quickly, but she was afraid the other jurors would take too long in their deliberations. Goodness. There wasn’t much to decide. The defendant had shot a bunch of Afghans who were, or probably would grow up to be, terrorists. Why was killing them a problem? Vivian was annoyed that some of the other jurors didn’t seem to see the issue so clearly. She had been trying to figure out all week which ones on the jury were the bleeding hearts and closet liberals. They could be difficult come deliberation time unless she could help them with their thinking along the way. She felt sure she could.
- 29 -
As he drove back to town from Charlottesville along route 29, Scott looked at the red and gold leaves on the trees that lined the highway. Traffic was light, and he relaxed in the seat of his Mazda 6 and breathed in the fall air from the half-open window. It was a beautiful, warm day. He’d had a great lunch with his friends, Paul and Beth, at a small German place outside the city. Talking with Beth, an Air Force Colonel and expert in law of war issues, had been useful.
Seeing Paul, Beth’s husband, also had helped. Paul was one of the smartest guys Scott knew and had been Scott’s roommate at Princeton when they were both undergraduates. While Scott had gone on to law school at Harvard, Paul had gotten his PhD in English and married Beth, who was then a brilliant, and gorgeous, young lieutenant. Later, while Scott had clerked and worked his way up in various DA offices, Paul had become a professor and author. Paul had written several series of books for young adults based upon literary classics. Scott had read all of Paul’s books. The books were funny and appealing but still taught important lessons.
The case he discussed with Beth and Paul wasn’t funny or appealing, but Scott had a sense that it, too, might be instructive.
Scott went over in his mind some of the issues he’d discussed with his friends. Foremost was whether the defendant could be exempt from prosecution. Scott was concerned that the defense—along with trying to present the evidence as circumstantial—would argue that the MEJA, the Military Extraterritorial Jurisdiction Act, would not apply to the defendant. The scope of MEJA extends to various crimes committed by employees and contractors of “any Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.” Scott was convinced that MEJA would apply because Bennett—even though he was a civilian—was supporting the DOD mission. Scott thought he could argue that the support came either through providing intelligence to the US military or via whatever super-secret stuff Bennett had been doing for the SU to stop IED layers. MEJA doesn’t describe specific crimes, but it does say it applies to offenses “punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States.” Committing murder should qualify. The attorneys at main Justice, when they turned over the case to EDVA, also had given their opinion that MEJA was applicable. Nonetheless, Scott needed Beth’s expertise on MEJA, particularly her help to try to nullify arguments the defense might make that the law did not apply.
His discussion with Beth, along with input from Paul, led Scott to believe that the applicability of MEJA was only part of the story.
The essence of the case would require the court to consider whether an SU Ghost officer who broke the law in the course of his duty should be held accountable or be exempt from prosecution. Paul, in his full professor mode, had asked the questions, “Should the Government protect the officers it has asked to do things that break foreign laws and skirt our laws? What is the Government’s responsibility to those officers?” He pointed out that the SU’s mission often involved doi
ng things that might be morally repugnant. Then Paul had said, On the other hand, if the defendant’s not prosecuted in this case—essentially for committing murder —is the court allowing the development of a culture of non-accountability? Who, if anyone, authorized the defendant to do what he did? And who gets to pick and choose who should be held accountable and who won’t be? It doesn’t sound like the court in this case. Is the defendant’s employer above the law?”
Beth brought up the problem of the Blackwater contractors in Iraq and the legal arguments that MEJA didn’t apply to their unprovoked killings of Iraqi civilians. She described the work of some members in Congress to push a new bill, the Civilian Extraterritorial Jurisdiction Act, or CEJA, that would close gaps in the law like those in the Blackwater case and reach the crimes of a wider range of federal employees, contractors, and attendants.
Scott expected that, while the case seemed straightforward—the defendant was engaged in activities related to protecting DOD officers—in practice, proving the fact might be a complex proposition. The SU almost certainly would prove reticent to release information. If the court couldn’t get the SU to release enough information to prove that Bennett’s work had been supportive of the DOD mission—or, worse yet, acted to suppress what little had already been presented in court—the prosecution would have a hard time charging a violation of MEJA. So, the issues would be both whether Bennett had committed criminal conduct and whether the prosecution could establish to the jury, beyond a reasonable doubt, that Bennett was subject to MEJA.
As he pulled into his condo parking lot, Scott sighed. He’d enjoyed the day with his friends and the intellectual rigor of the discussions. Now he was back to the reality of his world. He thought that he really should have stopped on the way home to pick up some groceries. His refrigerator was almost empty. His condo needed cleaning. He had a lot of work to do on the case. And no one and nothing, not even a cat, was waiting to greet him as he opened his door.
- 30 -
Although her lungs were still working, the muscles in Maddie’s calves were starting to shake, and her hip was aching after eleven miles. She looked for a bench along the path. There was one up ahead beneath a huge maple tree that was a fiery red in the late afternoon sun. Perfect. Another woman in running gear was already sitting on one end of it, but she looked like she’d share. Maddie’s legs were spent, and she had to stop. She just made it to the bench. She grabbed the back of the bench and stretched out her legs to ease them for a couple of minutes before folding down onto the seat and sipping from her water bottle. She glanced over at the other woman. She was sweaty, too, and sprawled with her legs out and elbows on the back of the bench. The woman, slender and in her mid-to-late 30s with brownish-blonde hair pulled back into a ponytail, looked familiar, but Maddie couldn’t place her.
The woman nodded to her and said “Hi, warm day, but really beautiful.”
Maddie gave a slight wave and puffed out a “Hi.” After she could breathe more regularly, she said, “You look awfully familiar, and I think I should know you. Do I?”
The woman smiled and pushed back some strands of hair that had escaped her ponytail. “No, not really, but I think you may have seen me at the trial or maybe in your office. I was at the trial last week, and I also was in the EDVA offices briefly when I met with Mr. Sommers. I’m Kate Gutzmann. I’m the targeter Mr. Sommers asked to testify in the trial.” Kate leaned down and picked up her water bottle for a long drink.
Maddie looked at Kate again, smiled at her, and nodded, “Yes, I recognize you now. I wasn’t in your meeting with Mr. Sommers, but I met you, and I’m familiar with what you and Mr. Sommers discussed. I, or my colleague, Scott Gardner, will need to meet with you again before you testify. Mr. Sommers is not actively involved in the case now.”
Kate looked at Maddie and smiled. “That’s good. I think you’ll do better without him. And your new partner seems much nicer.”
“Yes, Scott’s a good guy and a really great attorney.” Maddie untied her jacket from around her waist, reached into a large pocket and pulled out a couple of plastic wrapped bars. She held out one to Kate, “I need something so I can make it back to my car. These are homemade protein bars. Would you like one? They’re peanut butter, oat, and dark chocolate, and they’re actually pretty good.”
“How can I refuse peanut butter and chocolate? Thank you, I’d love one. I ran farther than I intended, and I’m pooped. Guess I’m not in as good a shape as I was when I was in Afghanistan.”
As she unwrapped her own bar and took a bite, Maddie said, “You were there about the same time that Bennett was?”
“Yes, but I was in Kabul. I worked out in the gym when I was there. I wasn’t involved in anything dangerous, like Sean. The life of a targeter isn’t so exciting. Mostly a lot of sitting and poring through information.” Kate took a bite of her bar, “Umm. These are good! Tell me they’re healthy!”
“They are, and not so many calories.” After a pause to chew her own bar, Maddie said, “I think just being in Kabul would be pretty dangerous. As I recall, plenty of people were looking for Americans to harm, and being out on the streets couldn’t be easy for an American woman.”
“Yes, Kabul was hard and pretty lonely. We worked the majority of the time we weren’t sleeping, so we didn’t have much time for seeing the sights, such as they were, or socializing. Mostly we formed friendships with the people we worked with. For a single woman, though, things were tough. That’s one reason why I spent so much time in the gym. It was that or go drinking at the bar.”
Maddie nodded and took another bite of her bar. “Hmm. Sounds kind of like my time in law school. Class, study, workout, repeat—with not very much sleep built in.”
“Yes. That’s kind of it. And, as you said, being out on the streets wasn’t really a good idea, particularly for American women, so I pretty much stayed put in our facilities. Work, workout, and sleep pretty much sums up my life out there. Oh, and the food was pretty bad, too. Loads of it but not exactly ‘Cooking Light’ or ‘Whole Foods’ quality.”
“Doesn’t sound like too much fun. I know you were a targeter and so provided information to Bennett and his team. Did you also see him in Kabul?”
Kate looked over at Maddie, “Is this an official discussion?”
Maddie grinned and said, “Well, not really. It’s kind of hard to be too lawyerly when you’re plopped, all sweaty, and in your running shorts on a park bench. On the other hand, I can’t turn off the questions. It’s what I do.”
Kate raised her eyebrows but laughed. “Okay. I’ll give you some information—more than I gave Sommers, whom I really don’t like, by the way. As I told him, I’m a targeter, and I’m one of the ones who has to ‘connect the dots’ and provide actionable intelligence to those who might need it. During the time I was in Kabul I put together information for our teams in Afghanistan. That included Sean’s.”
“So how much contact did you have with Bennett? Was it all long distance?”
“I dealt with him on a daily basis via our e-mail system. We saw each other periodically, too, mostly when he came back and forth to Kabul.”
“Mostly?”
Kate looked at the ground and said, “Sean and I have known each other for years.”
Maddie reached inside her jacket again and fished out another bar. She offered it to Kate and said, “Here. I think you’re going to want this. I have time to listen, if you’re willing to tell me.”
Kate looked at the bar and then at Maddie. “Ah, a bribe. You’re nice, but this is complicated. I’m really not sure I should tell you. I don’t want my life—boring and dreary though it is—splattered in front of the court.” Kate leaned over and put her elbows on her knees, looking ahead at other runners on the path in front of them. “Besides, I don’t want to sound pathetic, and I don’t want to be unpatriotic.”
Maddie shook her head, “Why do you think you would be unpatriotic?”
“Because I work for the SU, an organizati
on in which mission takes priority. ‘Mission first,’ is ground into everyone.”
“I still don’t understand.”
“If I say anything negative about Sean and what happened out there, I’m undermining the mission.”
“But you’d be informing the judicial system, the court of your Government, and we can use procedures, if necessary, to protect your information.”
Kate took another sip from her water bottle and leaned back on the bench. She looked up for a minute into the red-gold maple leaves, and said, “It’s just not that simple. I’m sorry. I didn’t expect to have this conversation today, and I don’t think I’m prepared.”
Maddie said, “Kate, you don’t have to be prepared. If it helps, I’m interested in the truth. Legally, we can call you before the court and demand answers, but, on a personal level, I’d like to do what I can to help you.” Maddie held out the protein bar again. She looked at Kate, smiled, and said, “Are you sure you wouldn’t like another one?”
Kate looked down at the bar and reached out for it. “Yes, I would, thank you.” She unwrapped the bar and looked over at Maddie, who now was facing forward with her legs stretched out in front of her, watching other runners and people in the park.
“Okay. I’ll tell you the bare bones about my relationship with Sean now. I’ll think about giving you more later, when you have paper and pen and are in your non-Mizuno, non-Under Armor, more lawyerly mode.”
Maddie turned and smiled at Kate.
After taking a bite of the bar and a sip of water, Kate said, “I’ve known Sean for years, as I said. We’ve had sort of a relationship. We’ve been friends, and we’ve had sex. Sean is not a one-woman type of guy. He sees me when he wants to talk—about problems with work, with other women, with his life in general. In the past, depending on Sean’s mood, we’ve had sex. I’m convenient. That’s as far as the relationship goes.”
Maddie nodded and said, “And that’s why you think you might sound pathetic?”