Balance of Power

by James W. Huston

  It seemed as if he had entered a different world, where time was suspended. The stars didn’t seem to move and there was no sound except the lapping of the waves against the side of his rubber raft. He saw no ships on the horizon and began to wonder if the helicopter was inbound at all. He knew the CH-46 that was coming had no inertial navigation system and would need to be directed by the E-2. With his luck they would get more lost than he was.

  Caskey sat up straight in his boat and his heart began to pound. He could hear engines: not the wap-wap beating of the CH-46 that he had hoped to hear; these engines were deep-throated high-speed engines. He sat up taller in his boat and strained to see across the water. On the horizon a mile or more away he thought he glimpsed three dark objects. He thought of the leverage these terrorists would get if they captured two American aircrew. What a fiasco. He thought of the 9mm Beretta in his survival vest and wondered if he should get it ready. He scanned the sky hurriedly but couldn’t see the F-18. Nor could he hear it.

  He decided to take the risk and picked up his radio. He pressed the transmit button. “Hey, Drunk, you got these guys?” he whispered, as if someone else listening on the frequency would not hear him.

  “Yeah, I got ’em,” Drunk said confidently. “Shut up and stay off the radio.”

  Caskey continued, “They can’t be more than a mile or two from me. If you are going to hit them, you better hurry.”

  “Rollin’ in on ’em now, MC. You got nothing to worry about.” Caskey looked back at the forms racing toward him. High and to his right he could hear a jet engine going to full power. Out of a dark place in the sky, where the F-18 blocked out the stars, came a sudden short burst of flame. Guns, Caskey thought to himself. Exactly right. He waited but saw no indication of damage on the three racing boats. The engines increased their pitch slightly as they raced faster toward him. He heard the F-18 pull up at the bottom of its run and could visualize the dark night air vaporizing at the ends of its wings.

  Again he saw the shadow and the flame. But this time there was an explosion on the horizon so bright that he had to cover his eyes. Debris flew into the air backlit by a burning hulk. “Yes,” Caskey whispered. He waited to see what the other boats would do. In the light of their burning sister he could see them smashing over the waves toward him at incredible speeds.

  Another pass by the F-18, another burst of flame from its hidden nose, and a miss. By now the cigarette boats were less than half a mile away. He could clearly hear the throbbing of their powerful engines and hear their bows slapping the waves. “One down, two to go,” Caskey transmitted.

  “Roger that,” his fellow squadron commander replied. “Stay off the damned radio, MC!” He sounded aggravated. “I got another F-18 inbound, but we better get this done now.”

  Caskey heard the engine race as the airplane accelerated toward the ocean. Its shadow blocked more stars. Again the flash in the nose and another blinding explosion as the second cigarette boat burst into an infinity of pieces. “Nice shot,” Caskey transmitted.

  Suddenly a missile flew off the third boat. “Missile airborne!” Caskey cried into his transmitter. “Shoulder fired SAM!” he finished.

  “A shot in the blind,” Drunk replied calmly. “They were off by about ninety degrees.”

  He saw the cigarette boat make a broad sweeping turn and fire off another missile. “Another missile airborne!” Caskey yelled.

  “They’re not even close,” came the reply.

  A new voice came up on the radio circuit. “Casper 903 is five miles out,” the E-2 NFO announced.

  “Tell them to hold off until this shooting is done,” Drunk replied instantly.

  The F-18 pitched up one more time and went back down. Another missile flew toward the F-18 just as the flash came from the Hornet’s nose. The third boat exploded as the other two had. Caskey held his arms up over his head as if signaling a touchdown. “Yes!” he yelled, releasing the tension in his body. He reached up and hit the strobe light on the top of his helmet, showing that the last boat had been destroyed less than four hundred yards in front of him. His face was lit up by the reflection of the flames of the burning boat. He saw no movement or survivors. From behind the burning hulk he could see the rotating beacon as an H-46 approached, and above the H-46 he saw the lights of the F-18 come on and roll over in the darkness.

  “Nice shooting,” Caskey transmitted, unable to control his relief.

  “Thanks, MC. Can you see the 46?”

  “Yeah, I got him.”

  “MC, this is Casper, we see you.”

  “Then get in here and get me out of this raft.”

  “Roger that,” said the CH-46 as it slowed to a hover over Caskey, illuminated by the burning boats. One of the figures in the water began to swim toward him from a quarter mile away.

  23

  DAVID PENDLETON LOOKED OUT OVER WASHINGTON, D.C., from the windows of his immaculate law office on the corner of the eighth floor. One window faced the Capitol; from the other, the Washington Monument was visible. Pendleton marveled at the beauty of the government buildings and monuments. If only the government were as beautiful as its buildings.

  The phone rang and he heard his secretary pick up.

  “May I say who is calling? One moment please. Mr. Pendleton, Mr. Gray on the telephone.”

  Pendleton picked up the telephone slowly. “Yes,” he said as if he were answering, rather than questioning.

  “Mr. Pendleton, this is Jackson Gray. I wanted to give you notice that I have requested and obtained a time for an emergency appeal hearing before the D.C. Circuit Court of Appeals. The hearing will be this afternoon at three-thirty. I told them I would call you and give you notice.”

  Pendleton waited five seconds before responding. “You contacted the Court of Appeals without me being present on the telephone?”

  Gray skipped a beat, then, “Are you trying to imply there was something improper in scheduling a hearing?”

  “I asked you a question. You haven’t yet answered it,” Pendleton replied, his voice growing cooler.

  “I called to obtain a hearing time. There was no discussion of the merits of this matter at all. And you know it.”

  “What is it you plan on asking the court to do?”

  “For the court to reverse Judge Konopka. Simple as that.”

  “Very well,” Pendleton said.

  “Good-bye.” Gray hung up without waiting to see if Pendleton had anything else to say.

  Pendleton called to his secretary in a voice only slightly louder than the one he’d used with Gray. “Maria, please get Rebecca in here immediately.”

  Pendleton returned to the window until Rebecca appeared at the door two minutes later. “Good morning,” he said.

  “Good morning, David,” she replied, using his first name as the San Diego firm demanded in spite of the Washington tradition of calling partners Mr. or Ms.

  Pendleton considered Rebecca as bright as attorneys got. She was slightly overweight and had a long face that would never be beautiful. But her mind was razor-sharp and was matched by her eagerness to solve difficult problems.

  Pendleton continued, “As expected, the Attorney General’s office is going to the D.C. Circuit on an emergency appeal. Have you finished your memo?”

  “Yes.” She looked at him inquisitively. “Do you really think the Circuit Court will stop Congress?”

  “That’s the point that the Attorney General’s office continues to miss. It’s not Congress they have to stop. The people they have to stop now are in the Navy.”

  “But the court could issue an order declaring the Letter unconstitutional,” she said eagerly.

  “How?” he asked, testing her research.

  “Well”—she leaned forward slightly, holding the papers on her lap—“they could say the Letter is a usurpation of the President’s power, or that it was a historical power that no longer applies with a modern military, or…”

  “Based on what?”

  �
�They could say it’s never been done before, at least not like this, and…”

  “Do you really believe the D.C. Circuit is going to declare an act of Congress unconstitutional because it’s never been done ‘like this’ before?”

  “It’s possible…”

  “Without our even having a meaningful chance to brief it? The President files his action, declares it’s an emergency, and the court runs around in circles trying to satisfy him?”

  “They may…”

  “What would the order say? ‘We hereby order that this is unconstitutional’?”

  “I guess that’s the question.”

  “Indeed.”

  Rebecca smiled, exhilarated. She admired Pendleton’s calm.

  Pendleton put out his hand, and she handed him the notebook she had prepared with all the relevant case law, both procedural and on the constitutional question. Without looking at her he began reading voraciously. He always found the key to a case between the lines. It was what the court didn’t say that was of particular interest to him.

  Picking up on the subtle way Pendleton was now completely ignoring her, Rebecca backed out of his office and closed his door.

  He pored over the materials, including the memoranda brought by Rebecca, without stopping for lunch. Pendleton had an ability to commit virtually everything to memory. His objective on argument was always the same: to guide the court to the simplest possible solution in his favor. At three o’clock he glanced at the clock and closed the notebook.

  He put it on the side of his desk, put the memoranda in a small briefcase, and headed out. Others in the firm hovered near his office but didn’t try to distract him. They just wanted to see him, to be part of the great argument without actually participating. They just happened to be walking by, or chatting with the secretary next to his office, or waiting for the elevator with no button pushed. He walked by all of them without a word—his mind elsewhere.

  The Attorney General’s office had obviously called the press. The front steps to the court were thronged with television reporters—eager men and women with microphones. He walked straight into the group and continued walking as they opened before him like the Red Sea. They yelled questions during his entire approach to the court. He put his hand up in slight protest with a small smile on his face and a continuous shaking of his head. He didn’t say a word. The door opened before him as one of the U.S. marshals saw him approach. He placed his briefcase on the conveyor belt for the X-ray machine and walked through the metal detector. Another group of reporters had beaten him there. The courtroom was overflowing with people. Their hurried looks toward Pendleton showed their excitement and anxiety.

  Jackson Gray sat at one counsel table and Pendleton walked to the other one.

  “Good afternoon, Jackson,” he said cordially.

  Gray looked up at him, surprised. “Hello,” he said quickly, returning his gaze to his papers.

  “All rise,” said the clerk as the three Appellate Court judges walked in. Pendleton and Gray stood up with the rest. “The Circuit Court of the District of Columbia is now in session. Please be seated and come to order.”

  The presiding judge addressed them. “Would counsel please state their appearances?”

  “Good afternoon. Jackson Gray of the Attorney General’s office on behalf of the United States and moving party.”

  Pendleton stood up. “Good afternoon, Your Honors. David Pendleton on behalf of the Speaker of the House of Representatives and on behalf of the Congress of the United States.”

  The presiding judge spoke first to Pendleton. “Mr. Pendleton, have you had a chance to review the papers filed this morning by Mr. Gray’s office?”

  “Yes I have, Your Honor.”

  “Very well. Mr. Gray, this is a very extraordinary procedure. Would you please explain to the court why there is such a critical need for this matter to be heard today rather than in the ordinary course?”

  “Thank you, Your Honor,” Gray said. He took a long breath and launched into the argument that he had gone over fifty times in his head. His hands shook almost imperceptibly. “This matter, Your Honors, before this court on this day, is perhaps the most serious issue faced by a Circuit Court of Appeals in this century.” A murmur went up in the gallery behind Gray. “What Congress has done is tantamount to tearing up the Constitution. What Congress has done, Your Honors, is overthrow the authority of the President over the military, and take that authority for itself. Congress is attempting to overthrow the Executive Branch.” He paused for effect, and looked at the faces of the three judges. “This usurpation of authority and attack on the entire existence of the government cannot be tolerated. This court must act and act quickly to stop it before it careens out of control and ruins the democratic government of the United States.”

  Gray stopped again, apparently having already rehearsed these pauses. “There is currently a Navy battle group that has received a so-called Letter of Reprisal from Congress to attack citizens of other countries without the authority of the Commander in Chief of the military. In fact, the Letter is in direct contradiction to an order of the Commander in Chief, who was given that authority by the Constitution. It cannot be allowed to happen. The specter of a rogue battle group from the United States with a nuclear aircraft carrier and its supporting ships, a Marine Expeditionary Unit and its supporting troops, special forces and submarines, is a frightening thought. The District Court was unwilling to act. That is understandable,” Gray said solemnly. “This is a very serious matter, which must be dealt with at the highest level of the court system. If this has to be taken to the United States Supreme Court, we will go there.” The murmur increased.

  The presiding judge looked down at those behind the rail. “Will those in the courtroom please refrain from expressing themselves? I would like to have a quiet courtroom to hear these arguments. Please continue, Mr. Gray.”

  “Thank you, Your Honor. As I said, if we have to take this argument to the United States Supreme Court, we will do so. But the sooner the order is issued declaring this act of Congress unconstitutional, the sooner we will return to a normal state of affairs and the entire world can breathe more easily. I therefore ask that this court reverse the decision made this morning by the District Court denying our temporary restraining order, and mandate that the court issue such a temporary restraining order. Thank you.”

  “Mr. Pendleton?” the presiding judge said.

  Pendleton sat motionless for ten seconds, his usual time to get the court’s entire attention, then rose. “Good afternoon, Your Honors.” Pendleton glanced over at Gray, then back at the justices. “Mr. Gray makes several interesting arguments, which the court may certainly consider at some point. When this issue is joined on the merits, the Congress of the United States is confident that it will prevail. It acted on language in the Constitution based on the power directly given to the Congress and never amended or modified.”

  He paused. “For the Attorney General to come before this court and make such sweeping statements about the unconstitutionality of this power is disingenuous and inappropriate. The only issue before this court is whether the district court abused its discretion in failing to issue a temporary restraining order. I do not need to cite to the court all the authorities on the criteria for the issuance of a TRO. But one of the rather obvious and critical elements is that the President must clearly demonstrate a likelihood of prevailing on the merits. That the President cannot do. The Letter, specifically authorized by the Constitution, was passed by both Houses of Congress, vetoed by the President, and then the veto was overridden. There is simply no question that it was properly passed and issued. The only conceivable constitutional question is whether or not it is proper to issue a Letter of Reprisal to a U.S. Navy vessel. There is no direct legal authority, and certainly no case law, forbidding the issuance of such a Letter. It will be an argument from history brought forward to modern times by regarding the Constitution as a ‘living document.’

  �
��The United States Supreme Court holds dear the concept that the Constitution must yield and change based on modern circumstances and cannot be held to a strictly historical interpretation. So be it,” Pendleton said, letting that thought sink in. “That is exactly what Congress has done. The question, then, is who will decide whether what Congress has done fits within that interpretation of the Constitution, in other words, whether Congress is right? That is a very large issue that Congress must have an opportunity to brief and argue. To have it declared unconstitutional in a hearing before this Court of Appeals on five hours’ notice is impossible. It would stop a legitimate exercise of congressional authority.”

  Pendleton continued, cautiously, but firmly. “But even if the President could convince the court he is likely to prevail, he has failed to bring before that court or this one the necessary party—the Navy. The injunction he seeks is to prohibit Congress from doing something. That is an impossibility. Congress has already done it. He cannot ask you to restrain the past.” A slight snicker rose in the gallery.

  “The President has the power to order the Navy to do whatever he chooses within legal limits. By coming to this court and asking for an order to enjoin the Navy, the President is admitting that the Navy, another part of the Executive Branch, disagrees with his interpretation of the Constitution. Otherwise the Navy would simply follow his order.

  “Thus, the true request by the President is for the Court to give him a hand in getting the Navy to do what he wants.” Pendleton stopped, then continued. “It could be argued that the Navy is before this court because it is part of the Executive Branch. But that would require the President to request an injunction against himself, which I doubt even he would do.” The gallery erupted in laughter and applause. Pendleton waited until the noise had subsided in response to the scowl of the presiding judge.

  “Thank you for the opportunity to be heard.” And with that Pendleton sat down.