“I think he’s got something else in mind, Admiral.”
“What?” Blazer said, putting his shirt on and stepping into his highly polished brown leather shoes.
“I don’t know, he didn’t say.”
“Well, what makes you think he has something else in mind?”
“I don’t know, just the tone of the e-mail. He’s got something up his sleeve.”
“Well, what do you think about the idea?”
“I think it makes a lot of sense. We should find these guys, regardless of whether somebody tells us to go after them.”
“I don’t want to do anything even close to illegal. I’m not sending anybody into some foreign country to do reconnaissance—not even a bunch of Marines. You understand that?”
“Yes, I understand that completely.”
“So, we’ve already ordered the imagery. Now what?”
“Well, if it’s them, wait for your orders.”
“And Billings didn’t give any hint what he might have in mind?”
“No, he just said that his attorney thinks he’s found the solution.”
“His attorney? Like what?”
“I don’t know.”
Blazer tightened his belt and straightened his uniform. He looked perfect. “That gives me peace of mind. An attorney has a solution. Great. Maybe we’re going to sue these assholes. It’s the American way, isn’t it?” He snickered.
“He said he was working with Jim Dillon. It was Dillon’s idea he was hinting at.”
“So?”
“Jim Dillon,” she repeated, searching Blazer’s face for a sign of recognition. “The attorney who was the Special Assistant to the Speaker of the House. The one who came up with the Letter of Reprisal.”
“That’s supposed to make me feel good? To say: ‘Oh! I see. Jim Dillon is on it. He’ll figure out something good’.... Sorry. I have my doubts about relying on solutions thought of by lawyers. Especially when it’s my butt that’s on the line.” He slammed the closet door and threw the locking handle home. “What do you think he has in mind?”
“I don’t know, Admiral. I’m sure it involves the use of force, and I’m sure somebody’s got this figured out.”
“They better have it figured out better than they did last time. I’m not sticking my head in that noose.”
“Are we going to make a contingency plan?”
“For what?” the admiral asked.
“For an attack.”
“From what I can tell, it sounds like an outpost operation only, am I right?”
“Well, we don’t really know enough yet. The radio transmissions are few and far between and not indicative of a high amount of activity. It does sound like kind of an outpost…”
“I’ll tell you what. We’ll ID them, and if we’re authorized to go after them, we will. I promise. We’ve already asked for another platoon from SEAL Team One. We’ll be ready. No harm in that, is there?”
“None, sir. Thank you.”
“Excellent. Call Commander Curtis, tell him I want him in my wardroom for breakfast at 0500.”
“Aye aye, sir.”
“Did you really think I wouldn’t want to go after these murderers?” he asked her curiously.
“I didn’t know, sir.”
“Did you check our heading?”
“Heading?”
“Yeah, the direction we’re headed.”
“Well, not exactly, no, sir.”
“We’ve been heading toward those islands all night, Beth. We’re not heading toward Thailand.”
“Good morning, Your Honor,” Dillon said. He stood behind a heavy oak table with Billings seated to his right and Molly to Billings’s right.
On the left, across the room, was Commander Pettit, the JAG officer who had been selected to prosecute the case. What annoyed Dillon about him was that his heart seemed to be in it, as if Billings had arranged a coup. Fortunately, the judge did not seem awed by the spectacle. The room was full of reporters and other interested people. They were in the usual court where courts-martial took place on Pearl Harbor, but there were rumors the actual trial would be elsewhere.
Before Dillon could go on he heard his name called softly.
“Jim,” Molly whispered loudly. He raised his hands slightly to indicate “What?”
“We’ve got to talk,” Molly said. Dillon turned back to the captain, who was waiting for Dillon to continue.
“Excuse me, Your Honor, may I have just one minute with my co-counsel?”
“Certainly,” the captain said.
Dillon stepped around Billings and bent over to Molly. “What?” he asked.
“I can’t let you do this,” Molly said.
“Why not?”
“This could ruin the whole defense.”
“Molly, we’ve been through this!”
“No, we haven’t, I haven’t really said what I thought.”
“You better say it now,” Billings said directly, not happy with this development.
“Look, if you make the argument now—that the order was illegal—and the judge rules against us, that’s it. That’s the end of our case. That’s our whole case. If he finds the order by the President and the Joint Chiefs was legal, the disobeying of the order is a fact. We could just about stipulate to that.”
“We’ve got to go for it,” Dillon said. “I’ve got a feeling about this judge. I think he’s got the nerve to declare this order illegal. If we don’t bring this now, we won’t be able to. The facts will come before the court-martial as a whole, and they’ll all hear how direct and premeditated his disobedience was. If that happens, we’re cooked.”
“I’m just telling you, I don’t think now is the time. I know we brought the motion, and I know he could hear it, but we could withdraw it. I couldn’t sleep last night thinking about this, Jim. I just don’t agree that this is the way to go.”
Billings’s face showed confusion.
Dillon replied to his unasked question. “I think we ought to raise this at every possible opportunity. It’s really all we’ve got, though.”
“Counsel,” the judge prompted, growing impatient.
Billings saw the concern on Molly’s face. “Don’t worry,” Billings said to her. “He knows what he’s doing.” He looked up at Dillon. “Don’t you?”
“Not really,” Dillon said, half-smiling as he headed back to the podium. Molly’s thoughts were unspoken but Dillon could hear her nonetheless: Are you crazy?
Billings, as usual, hid his feelings well. His face gave nothing away.
Dillon apologized to the judge. “Excuse me for that delay, Your Honor. May I begin?”
“Please, Counsel,” the captain said.
Dillon began. “Members of the armed forces are not bound to obey illegal orders. It was for that reason, Your Honor, that the Allies went through the process of holding trials at Nuremberg. The most common defense of the Nuremberg criminals was that they were ordered to do what they had done. Yes, they had ordered Jews into the gas chamber, yes, they had slaughtered unarmed United States Army men in the forest, but they had been ordered to do it. Because of their obligations as members of the armed forces, they had to obey the orders of their superiors. The United States and all the other Allies, and the world of nations which joined with us in condemning Nazi behavior, all said a resounding ‘No!’ You are not to obey an illegal order.
“In fact, Your Honor, the rule from Nuremberg is that you are bound to disobey an illegal order. You have an obligation as a thinking human being to disobey an order that you know is illegal or immoral. If your superior officer tells you to shoot a prisoner, you are required to disobey that order.” Dillon paused for effect. “If your commanding officer tells you to discipline a sailor in today’s Navy, by lashing him to the mast and whipping him, you are bound to disobey that order. It is an illegal order and a violation of the Uniform Code of Military Justice. The order is clear in that instance, and it is from a superior officer. It meets the usual cri
teria of what it is that must be obeyed. But we as thinking people must evaluate whether the orders that we are given are legal or illegal, moral or immoral. And if we determine that they are contrary to what we understand those requirements to be, we are bound to disobey them. I have cited the court to the law supporting that proposition.”
“It’s a basic tenet of military law, Mr. Dillon.”
“Thank you, Your Honor. Yes, it is,” Dillon said, not liking the tone of voice the judge had used, a dismissive, get-to-the-point tone. He continued, “I’m sure that the prosecutor would stipulate to it,” Dillon said, glancing at the judge with upraised eyebrows as if to solicit from him a nod, which was not forthcoming.
“The order given by the President to Admiral Billings was an illegal order.” He paused for effect and stared at the judge, who stared back at him.
Dillon felt a pang of fear but went on. “What is it that makes an order illegal? I listed the categories for the court in my brief, but let me mention a few. A violation of an international standard, such as the Geneva Convention, would be one. That would be the shooting of prisoners, or herding civilians into gas chambers. Clearly illegal and not required to be obeyed. Another might be a violation of the international laws of warfare. For example, if we were told to target a hospital in a war, that would be an illegal order. It might be different if it was known that the hospital was a fraud, and it was in fact headquarters for the enemy. But a simple order to bomb a hospital would be an illegal order. Admiral Billings would be punished for following such an order, even from the President. Another would be when the person issuing the order did not have the authority to do so.” Dillon shifted his feet and turned the page in his outline.
“For example, if a chief petty officer had come to Admiral Billings and ordered him to return to Pearl Harbor, that would be illegal because the person giving the order did not have the authority to issue it. One is bound to obey only the orders of his superiors.”
He continued, holding the podium, hating that his mouth was growing dry and starting to make unsolicited noises. “President Manchester is certainly Admiral Billings’s superior, his Commander in Chief, and can issue an order. Admiral Billings wasn’t ordered to bomb a hospital or execute a prisoner. So why is the order illegal? Because it was in direct contradiction to a constitutional mandate issued by Congress. The Letter of Reprisal, in direct line of authority from the Constitution through Congress to Admiral Billings, was passed, signed, and issued by Congress over the veto of the President. It directly contradicts the President’s order and is superior because it is from the Constitution.
“Moreover,” Dillon said, picking up speed, “the order wasn’t simply to return to Pearl Harbor, in a vacuum. It was to return to Pearl Harbor and refrain from executing the very Letter of Reprisal that Congress had issued. The President does not and cannot have authority to contravene a constitutional mandate. If he wanted to rescind the Letter of Reprisal, he would have only one way of doing that, and that would be to veto it.” He paused and looked at the prosecutor and lowered his voice for effect.
“But the veto was overridden. President Manchester took the steps he could to stop the Letter of Reprisal, but was not able to do so. This court cannot allow him to do through the back door what he could not get done through the front door. This argument is between Congress and the President. The constitutionality of the Letter of Reprisal is pending before the District Court of Washington. It will probably languish there for a couple of years while it proceeds to trial. I expect at some point there will be a motion and the court will dismiss it as being moot because the attack has already taken place. Just as the Supreme Court did when the Letter of Reprisal went up before it on an application for an emergency stay. That application for a stay was denied, Your Honor. The President tried to stop the Letter but was unsuccessful. As we stand here today, there has been no determination anywhere by any court that this Letter of Reprisal was unconstitutional when it was issued to Admiral Billings and the USS Constitution battle group. This put Admiral Billings in the position of being bound to follow it or suffer the charge of contempt of Congress, or to disobey the President’s directive and be here today. Being placed in such an untenable situation should not result in a court-martial. The admiral did what was right.
“But significantly, Your Honor, the article under which the admiral’s been charged, Article Ninety-two, itself requires that the order be a legal one, be lawful. And it requires that the order ‘must not conflict with the statutory or constitutional rights of the person receiving it.’ ” Dillon paused, pleased with himself.
“Lastly, if I may, let me remind you of the oath that Admiral Billings and everyone else here took, to support and defend the Constitution of the United States, against all enemies, foreign and domestic.
“Admiral Billings did that, Your Honor. He did support and defend the Constitution of the United States. The fact is that the President just didn’t like it and he convened this court as a personal vendetta. These charges should be dismissed. Thank you.” Dillon closed his notebook and sat down next to Billings.
The trial counsel, as the prosecutor was called, approached the podium and waited for the judge to indicate he could speak. The journalists and visitors in the back were buzzing softly. His graying black hair was cut especially short, more in a Marine style than that of a Navy officer. His Navy whites were perfectly pressed and crisp and his white shoes showed no signs of prior wear. He wore two rows of ribbons and the specialty pin of a surface warfare officer, somewhat unusual for a JAG officer. He had been to sea. He knew what giving and receiving orders was about. He gripped the sides of the podium so hard his knuckles turned white.
He began as the judge finally looked up and the crowd quieted behind him: “May it please the court, I doubt this court has ever heard a more creative argument as an excuse for disobeying a direct order of a superior. The word that comes to mind is ‘elaborate.’ ” He looked intense and offended. “This court has heard many cases of sailors and officers who have disobeyed direct orders. Refusal to get a haircut, refusal to swab the deck properly, refusal to stay on base over a weekend to accomplish some additional work. Hundreds, maybe thousands of cases. I doubt, though, that this court has seen a case where the order disobeyed comes directly from the President of the United States and the Chairman of the Joint Chiefs of Staff. It is in fact hard to think of another case of any direct order from the President of the United States being issued, let alone disobeyed.” He stared at Billings for effect and let his last phrase linger.
“The defense argues as if this was a foregone conclusion. That once this so-called ‘Letter of Reprisal’ was issued, that it really didn’t matter what the President or the Joint Chiefs said, that this Letter of Reprisal gave the admiral carte blanche to do whatever he pleased.” He put out his arms pleadingly. “To go ashore in any country, to kill any number of people, to capture whomever he wanted. What the defense fails to say is that the Letter of Reprisal itself is not an order. It’s a commission. It gives a ship the ability to do certain things. It doesn’t order them to do it. This is not a competition of one order against another, this is a commission versus a direct order of the President.”
The trial counsel studied Dillon for a moment. “I must commend Mr. Dillon on his creativity at the very least, Your Honor. His argument about the constitutional ‘mandate’ is interesting. I’ve never heard of a Letter of Reprisal called a mandate. But even more significant is Article Ninety-two, under which the admiral has been charged, and to which he has looked for some help—I believe he even read the language to the court.
“While I applaud Mr. Dillon for his imagination, I must attribute his misciting of the statute to his inexperience with military law.” He focused on Dillon again, trying to make him uncomfortable.
“What Mr. Dillon missed is that Admiral Billings was not charged under Article Ninety-two, Subsection One but Subsection Two. The text that Mr. Dillon read was under Subsection One which
pertains only to general orders. A general order, as this court well knows, but perhaps I could explain it for Mr. Dillon, is an order that is issued to the general population of a service or the department of defense. An order, for example, to not commit sexual harassment. That would be a general order. What Admiral Billings disobeyed was a direct order, a specific order. Violations of direct orders are charged under Article Ninety-two, Subsection Two. I’m afraid Mr. Dillon’s argument proves the very thing he sought to defeat. The test of constitutionality isn’t even in Article Ninety-two, Subsection Two.
“Nor did Mr. Dillon even address the negligent homicide charges.” His face indicated his total bafflement at Dillon’s lapse. “In summary, Your Honor, this is a very clear case of an admiral receiving a direct order from the highest office in the land. And knowingly, willfully, and with abandon, disobeying that order.” The prosecutor’s voice intensified. “The result of that disobedience, Your Honor, was the death of over a hundred fifty people, including several United States Marines. If Admiral Billings had not disobeyed that order, those men would be alive, they would be with their families. Those families would not be here,” he said, pointing to a group seated in a corner, “to hear Admiral Billings claim through his attorney, that it was okay to disobey that order because the order of the Commander in Chief was unconstitutional. This motion is a sham, Your Honor. It must be denied.” The prosecutor returned to his seat and sat down, his back straight against the back of his chair.
Dillon wanted to disappear. He couldn’t believe what he had just heard. He immediately knew the prosecutor was right about his citing the first section of Article Ninety-two. He simply hadn’t understood the difference. He’d been in too much of a hurry, trying to do too much research on how to attack George Washington. Molly’s instincts had been right. Dillon tried to look completely unaffected.
Billings moved his head slowly to his left and took in Dillon’s profile. Dillon continued to concentrate on the judge.
The Price Of Power Page 22
