Decency

by Rex Fuller

  “Of course. I want to assure you in the strongest possible terms that we are only interested in the truth. I’m also confident that the truth will lead you to conclusions that are different from those you have already drawn.”

  …if I were in your shoes, I would be arguing the same thing…

  “What is the truth as you see it, Mr. Barrett?”

  The door re-opened. Bonafacio entered and held the door. Close behind her was a man whose apparition here caused Kelly to force herself not to betray total shock.

  …holy cow…!

  It was the same man who “warned” of “Wonderland” at the Old Post Office Pavilion.

  Barrett continued, “This man can explain. Ms. Hawkins this is Special Agent Ted Fitzgerald. He is a member of the FBI detailed to this agency.”

  Fitzgerald walked quickly to Kelly with his hand extended.

  She rose and shook his hand. “Mr. Fitzgerald this is twice you have surprised me now.”

  “It may not be the last, Ms. Hawkins.”

  As Fitzgerald took his seat, Kelly bent down to Bonnie and whispered,

  “This is the guy who ‘warned’ me at the Old Post Office Pavilion.”

  Bonnie nodded and continued writing as fast as she could.

  …well, this is going to be interesting…

  “Ms. Hawkins, as you know the FBI has investigative jurisdiction for espionage in the United States. Mr. Fitzgerald is assigned to our agency for purposes of investigating potential espionage penetration of our systems. He will brief you on the investigative results of a case involving your clients’ daughter.”

  Fitzgerald picked up the briefing, “What I’m about to tell you, Ms. Hawkins, is an unclassified overview. The details of it are classified and for you to have access to those details would require that you obtain the necessary clearances.”

  “Mr. Fitzgerald, what’s classified and what’s not, is strictly your concern. I appreciate your openness and I’m anxious to hear it. But I have to make it absolutely clear that I am under no obligation whatsoever to safeguard the information.”

  “Of course. Let’s start from the beginning. Some three and one half years ago Miss Pierce reported that there was an unplanned and possibly unauthorized change in the software that she works with. She acted quite properly in making the report.

  “She did not know that the change was induced as a law enforcement effort to identify improper conduct on the part of NSA employees. Consider it a ‘sting’ if you will. As a fairly routine matter, non-standard procedures of one kind or another are put in place to see what happens. In this particular kind of operation, the desired outcome is for all of those who come in contact with the unauthorized software to report it. In other words, Miss Pierce passed the test.”

  …do you people suppose that is going to be any comfort to her or her folks now…?

  “However, one of her subordinates also independently identified the unauthorized software and did not report it. He flunked the test. To confidently assess his inaction as deliberate, we inserted another unplanned software program. Essentially, the same thing occurred. Miss Pierce reported the matter. Her subordinate did not.

  “It became a matter of management discretion as to how to proceed at the point. Miss Pierce was notified that her subordinate would be terminated. She was unaware of the sting or its results and did not know of any reason to terminate the subordinate. She would have been informed a short time later when the changes could have been finally scrubbed out of the systems. However, at that point the subordinate was notified of his impending termination. We had reason to believe that he was aware that Miss Pierce had also discovered the changes. He started attempting to exploit the unauthorized software - in other words to sell the information that could be obtained, unbeknownst her. In order to prevent him from suspecting that his actions had been discovered, we initiated a ruse. Miss Pierce would be notified of her termination as well. But understand, we had to maintain her access to programs and data. So we could not actually notify her of termination, ruse or not.

  “She was referred to psychological evaluation as part of the ruse. Although, Dr. Cochran did not know there was a ruse at work. No matter what he would have concluded, Miss Pierce was not going to be terminated.

  “Although the subordinate was unable to follow through with exploiting the information, to sell it, the operation was successful. The tragedy is Miss Pierce did not live to see herself vindicated.”

  …whatever case we had may be completely gone…

  “Mr. Fitzgerald, that certainly explains a lot. I have just one question though.”

  “I’ll be happy to answer it if I can.”

  “How did you become aware I was representing the Pierces? The case was not filed until after you met me at the Post Office Pavilion.”

  “That’s not really such a mystery. A third employee, also a former subordinate of Miss Pierce, also attempted to sell access to the information. During investigation he claimed she was involved. In other words, he claimed she was the brains behind it and apparently hoped to avoid further consequences by appearing to give us information. We did not assess the claim as very credible. We do believe that the two subordinates were working together but not with Miss Pierce. However, as much to disprove it as to investigate it we instituted a standard probable cause wiretap of the Pierces’ phone. We terminated it when we became aware of your involvement, to avoid exposing our investigation to any possible claim of breaching attorney client confidentiality.

  “Still, we hoped that you would continue your efforts and possibly develop other avenues of inquiry that we may not have found. Consequently, I met with you at the Old Post Office Pavilion to give you as much encouragement as we could.”

  “Well it had that effect all right. You’ll understand if I don’t really appreciate it though.”

  Barrett spoke up again.

  “Of course we understand, Ms. Hawkins. I want to emphasize to you that we are in a very difficult and complex business here. It is virtually impossible to tell where the lines of employer-employee relations cross with criminal law, such as espionage. Stated a different way, it is not certain if those lines ever totally separate.”

  “Mr. Barrett, I can understand that.”

  …easy now, word this carefully…

  “For now, you have given us a great deal to consider and to reconsider. I think it best that we take a few days to do so before we proceed with the consultation that we came here to do.”

  “I think that would be a wise course. In that Mr. Carbajal is the Assistant U.S. Attorney in charge of the case, it would be appropriate for you to communicate through him.”

  “Agreed.”

  “Then I believe we are adjourned. It was a pleasure to meet you.”

  “Indeed, Mr. Barrett, the pleasure was mine.”

  Their jailer led them out, insuring that they returned the visitors passes.

  Once in the car, Kelly suggested the obvious. “I think we’re back to square one. Maybe worse.”

  Bonnie was glummer than the escort was. “It certainly wasn’t what I was expecting. Honestly…right now, part of me wants to think, ‘God is in His heaven and all is right with the world.’ But another part of me…maybe it’s just from living with the case and working so hard on it…another part of me wants to think, ‘Something is wrong….’ I’ll tell you one thing, if there’s anyone working there who isn’t paranoid, they really have something wrong with them.”

  “I wouldn’t put it much differently. Right now, I don’t know what to think either.”

  Both were silent as the car pulled out of the parking lot.

  “Bonnie, there is one good thing about this.”

  “And it is?”

  “We don’t have to worry about whether we have an obligation to disclose the contents of Samantha’s letters to national security or law enforcement agencies.” •

  16

  Alone. Sitting alone. The normal office buzz faded. It was there bu
t unheard.

  Tom, what do I do now? What can I possibly tell Kathy and Harlan Pierce? It was all a charade? Their daughter was duped? She was a pawn? She was not suspected of anything? She was simply used to screen the real suspect from discovering they were on to him? In fact, her superiors knew full well how great she was but they used her, counted on her character to do the right thing, and left her hanging out to dry? They even counted on her strength to carry her through what they knew was a stressful investigation? She just lacked her mother’s instincts about people and trusted too much?

  There was no deliberate falsification of the psychological evaluation. Cochran may be stupid. Or he may have just been too eager to please his superiors and made a mistake. But that’s not enough to make him liable. Stupidity and eagerness give him the qualified immunity defense. As long as he did not knowingly abuse her rights, there is no case.

  Sure we can keep the case going. We can make Cochran look stupid and the agency look heartless. The government will say, “Intelligence work is a terribly difficult business. To do it right sometimes demands callous acts. But ‘callous’ does not equal ‘illegal.’” And they will be right.

  If we do that, the court will see us as desperate, blinded by grief or whatever to the reality of the legal requirements of the case.

  Even partners in this firm, some of whom already think the case is a fool’s errand, will say that. They will speculate that poor Kelly has lost her edge. Her grief … the parents’ grief. She lost sight of her real job to represent them as a lawyer not a friend…

  “Kelly, Sandy Matthews of the Washington Post is on.”

  …oh, God…has the U.S. Attorney leaked this…? well, if the Post prints, can’t let them say “did not return calls…”

  “Thanks, Jannie.”

  “This is Kelly Hawkins.”

  “Ms. Hawkins, this is Sandy Matthews of the Washington Post. I’ve read your complaint and the other papers in your Pierce versus Cochran case. I think I’m going to write a human interest story about it focused on Samantha Pierce. Could I ask you a few questions?”

  “Of course. I’ll be happy to tell you what I can.”

  …human interest…? doesn’t sound like they’re following the credibility of NSA angle they would work on if the U.S. Attorney leaked them anything…

  “Thanks. As I understand it you have sued for a false psychological evaluation. Did Samantha Pierce ever have any psychological problems before?”

  “Absolutely not.”

  “Was there anything to indicate that her job performance was suffering as a result of stress?”

  …stress…? working in the most sensitive arena in the world with everyone looking over your shoulder…? not getting cooperation for reporting potentially catastrophic failures of security…

  “No. If anything, she was performing her job better than she ever had before.”

  “As I understand it she was from a rural background. Do you know if she ever felt ill-equipped to deal with the high pressure environment of the intelligence world?”

  …snob…

  “I would take issue with the premise of your question. I believe rural people experience pressure. For example, look at your own paper’s dead files on how many farms are disappearing as a result of financial pressure. Those are real people facing real pressures every day, not just statistics.”

  “Fair enough. Did her parents contact you here in Washington to take the case?”

  “I’m not sure I see the human interest aspect of that question. Do you mind if I put you on hold a second?”

  Kelly punched the hold button to defeat the connection.

  “Jannie, call the Pierces immediately. Tell them not to answer any questions from reporters. Refer any press inquiries to me.”

  “Sure.”

  Kelly went back on the line.

  “Sorry, Ms. Matthews. Please, go on.”

  “Well, I would like to ask you about the NSA’s practices regarding psychological evaluation. Do you think the use of the psychological evaluation in general is warranted?”

  …this may be the only good to come out of this whole mess…

  “Ms. Matthews, I think the NSA’s use of the psychological evaluation process in Samantha Pierce’s case was completely unjustified. I don’t know how the NSA does all of its psychological evaluations. However, because the process was abused in this case, the potential for abuse still exists. That is something the relevant authorities may want to evaluate.”

  “Relevant authorities including whom?”

  “Well certainly the Congress. I think there is a serious gap in the coverage of the laws concerning this subject. Basically, there is no oversight of the intelligence agencies regarding this matter because they have been exempted. This case and others like it certainly suggest that there is a need for Congress to consider whether the exemption is warranted in the first place or worth the mistreatment of citizens that can result from abuse of the process.”

  “What can you tell me about Samantha Pierce? What was she like as a person?”

  “I wish I had the pleasure of knowing her when she was alive. From all that I have seen in her records and heard in conversations with people who did know her, one thing is clear. She was an extremely smart, energetic, and kind person. She was a natural leader throughout her life and was one of the first women to make a splash in the field of computer science. I have never, ever seen or heard a single negative thing about her.”

  “I guess it’s a good thing we have people like her in the intelligence world.”

  …if you only knew how hard it is for the good ones…

  “I think it’s safe to say we cannot do without them.”

  “You’re probably right. That’s all I need for now, Ms. Hawkins. I hope I can call you again.”

  “You’re very welcome to do so.”

  As they hung up, Jannie came in.

  “I phoned the Pierces and gave the message to Kathy. Also, CNN wants to send a reporter over to talk about a possible interview to air within the next week. What should I tell them?”

  “Tell them they can come any time. Just call to confirm I’m available.”

  …never mind that there might not even be a story by the time they get here…

  17

  Tom, yesterday at the NSA general counsel was disaster. What did I miss? Did I miss anything? Am I just like a dog clutching a bone? Talk to me, darling, I don’t know where to turn.

  “Kelly, Senator Charboneaux’s office is on.”

  “Really? Okay…”

  “This is Kelly Hawkins.”

  “Hold, please, for the Senator.”

  Senator Jean Paul Charboneaux, currently the most colorful member of the Senate, was a legend in his home, Acadia Parish, and in Washington. From his high school days as an oil field roustabout, to quarterbacking the LSU Tigers, to the LSU law school, where he was said to have committed the entire Louisiana Code to memory, to an up and down career as a wild catter, to the floor of the Senate where he delivered the most entertaining speeches graced by Cajun accent seemingly more vivid by the year, the Senator garnered multitudes of friends and no surviving foes.

  “Kelly! Where y’at, cher?”

  “I’m fine, sir. It is a pleasure to hear your voice.”

  “Flatter ol’ men an’ y’all can sleep sound. Kelly! Had y’all’s lunch?”

  “No, sir, a working woman can’t afford it.”

  “Ha! I know y’all can buy my accounts an’ chip ‘em in the Sunday c’lection. Woman, get outtah there. Come on ovah an’ we’ll share some ‘etouffe’e.”

  “I can be there in about thirty minutes, sir.”

  “Step on out an’ I’ll see y’all then.”

  “Thank you, Senator.”

  The former Chairman and current ranking member of the Senate Intelligence Committee could be about to administer an old fashioned whuppin’ to a lawyer messin’ on his turf.

  With a corner office in the Russell Senate O
ffice Building befitting a tenacious and clever operator, he seemed to rule the Intelligence world.

  “Hello, Ms. Hawkins.”

  The receptionist was well briefed. There was no reason on earth for her to be able to recognize the visitor.

  “The Senator wants to see you right away. Please follow me.”

  “Thank you.”

  She opened the door to the Senator’s office and aroma of the luncheon already placed on the table opposite the desk was wonderful.

  The Senator was in shirt sleeves, talking on the phone, with his free arm resting on top of his head and leaning back in his chair with one foot on the edge of the desk. His salt and pepper gray hair and the wrinkles edging his eyes dramatized rugged South Central Louisiana good looks. When he saw Kelly, the Senator jumped to his feet, threw his arm out in greeting and waved her on in.

  “…now, Charlie, you know that bill got as much chance as a frog in a gator pond…no, no, no, we’ll do what we can but we ain’t jumpin’ in the pond with the frog too…okay ol’ son I’ll see y’all then.”

  Hardly breaking rhythm, the Senator put the phone down, strode around the desk with both arms extended, grabbed Kelly’s right hand and clasped her right shoulder.

  “Damn, you sure look good.”

  “Senator, judging from your grip you could still play some quarterback.”

  “Ah, if only…”

  A frown appeared from nowhere on the Senator’s brow.

  “Kelly, it was a helluva thing about your Tom, I’m very sorry.”

  “Thank you. I was very pleasantly surprised to get your card when it happened.”

  Still frowning and grasping both her hand and shoulder the Senator looked directly into Kelly’s eyes.

  “Really, now, how y’all makin’ it?”

  “I’m okay…now.”

  “Hope so. Hope so. You been through hell.”

  With a slight pause the Senator shifted back to campaign mode.