The Price Of Power

by James W. Huston

  The judge finished his notes and removed his glasses. Fixing his gaze on Dillon, he said, “Mr. Dillon, do you have anything to say in response?”

  “Yes, Your Honor.” Dillon bounced up quickly and walked to the podium. “The citation that trial counsel made to Article Ninety-two is correct, Your Honor. I apologize to the court for misciting the article. I’m embarrassed by my oversight.” Dillon waited for the murmurs behind him to stop before continuing, “But I would wager that trial counsel would also agree with me, that if in fact a specific order was unconstitutional, this court would dismiss charges for its violation as a matter of law. Surely trial counsel would admit that if a Navy officer told a subordinate to take only black sailors on a work party, that order would be unconstitutional, as a violation of civil rights, even though it wasn’t a general order. I seriously doubt trial counsel would make the argument to this court that this was not an illegal order because the word unconstitutional is not in the second part of Article Ninety-two. The United States Constitution supersedes all orders, all acts are subject to its jurisdiction. The second half of Article Ninety-two is not an exception carved out into the world of behavior in which a Naval officer or subordinate can act in unconstitutional ways and not be challenged because of it.”

  Dillon felt restored. He relaxed his shoulders and stood up slightly taller. “This order was unconstitutional, Your Honor. Whether I correctly cite or miscite the article, the order itself was unconstitutional. Because of that Admiral Billings was not bound to obey it. Because of that, any disobedience cannot be charged, no matter which or how many articles of the UCMJ are used to try to accomplish it.... And as for the manslaughter charge, that offensive and harsh charge, it fails for the same reasons. If the order by the President to withdraw was unconstitutional, then the battle group should have proceeded under the authority of the Letter of Reprisal. It follows that the ordinary rules of war would apply, and incidental unintended civilian casualties are not actionable. Casualties happen when combat occurs. All the charges must be dismissed. Thank you.” Dillon sat down.

  Billings leaned over to him as Dillon tried not to let anyone hear him breathing hard. “Nice job, Dillon. Looked to me like you stalled your airplane out there for a while and were about to hit the ground. You pulled up just in time.”

  The captain put down his pen and spoke quickly. “Motion for Dismissal under Rules of Court Martial 907 (b)(1)(B), that the specifications fail to state an offense, that, as I understand the motion, the order in issue was unconstitutional and illegal, is denied. This court finds that the order issued by the President of the United States through the Chairman of the Joint Chiefs was not an illegal order. Admiral Billings will stand trial on all charges filed.”

  Several members of the gallery jumped up and ran out the door noisily. The captain stopped and looked at the people in the courtroom. “Please, I’d like to have the courtroom quiet or I will clear it,” he said sternly.

  “Mr. Dillon?” the captain said.

  “Yes, sir.” Dillon stood up, feeling sick.

  “You have the right to a speedy trial under Rule 701. That means you have the right to come to trial within one hundred twenty days of the first custody. It’s my understanding the first custody occurred aboard the USS Constitution in the Java Sea pursuant to an order from the Joint Chiefs that Admiral Blazer was to take Admiral Billings into custody by the Harry S Truman battle group. If you’re prepared to go to trial we can get to trial immediately. We have sufficient members to convene the court. Are you prepared to go forward now?”

  Dillon swallowed and tried to speak. His mouth was too dry. He reached down and picked up the glass of water on the table and drank from it. He turned to Billings, who signaled his readiness. “We’re ready to go, Your Honor,” Dillon said.

  “Very well. This general court-martial will begin trial on Monday morning at 0900. Are there any questions?”

  “No, Your Honor,” Dillon said.

  Pettit stood, saying, “Yes, sir. Where?”

  The judge said, “There has been intense and constant public interest in this matter, as evidenced by the crowd here today. We do not have room to accommodate all those who wish to attend the trial. Courts-martial are open to the public. The commanding officer of Pearl Harbor Naval Base has indicated to me that the gymnasium by the front gate is being made into a courtroom for this trial. I am told it will be ready to go Monday morning. I, therefore, suggest that we convene there Monday morning, and if it is adequate, we will proceed. If not, we will return here to start the trial and there will simply be fewer people who can attend. Is that satisfactory?”

  “Yes, sir,” Dillon replied.

  “Yes, sir,” Pettit echoed.

  “Commander Pettit, do you have your witnesses ready to go?” the judge asked.

  “Yes, sir. The first few witnesses are already in town. The others will be told to come immediately. Several will be coming from the western Pacific and a couple from Washington.”

  “Have you given Mr. Dillon your witness list?”

  “Yes, we have, Your Honor.”

  “Very well. I’d like you to give him your list of witnesses for Monday and Tuesday.”

  “Yes, sir, I’ll get that to him this afternoon.”

  “Very well. Anything else?”

  “No, sir.”

  “Very well. We are adjourned until Monday,” the judge said. He struck his gavel and stood quickly.

  Dillon gathered his notebook and papers and began to place them in his briefcase. Molly came up behind him. “Now what?” she whispered, so that only he could hear.

  Dillon met her eyes. “First, I’m going to go throw up. Then, I’d better come up with some way to defend this case in trial.” His face showed an expression she hadn’t seen before. One degree shy of panic.

  As they left the courtroom, Dillon tried to behave as if the result was what he had more or less expected. The press, though, wanted more. They closed around him and Billings and Molly, peppering them with questions.

  “Mr. Dillon, do you think you’re qualified to defend the admiral?”

  Dillon darted a look at the reporter. “Yes, of course. We simply have to get the evidence before the court.”

  Another stuck a radio microphone in his face. “Wasn’t that your entire defense? That the order was unconstitutional? What else do you have to say? Didn’t the admiral disobey it?”

  Dillon put up his hand. “It will all come out in the trial. I’m sure you will be there, and I’m sure you’ll be able to hear it. That’s all we have to say right now. Thank you.”

  They pushed through the reporters to the waiting car, which hurried them away. Dillon sat in the front with the enlisted driver, and the admiral and Molly sat in the back of the unremarkable white sedan.

  “Well, that didn’t go as we hoped, did it?” the admiral said.

  “No, Admiral, it didn’t. I’m sorry about that.”

  “Nothing to be sorry about. We’ll just have to take another tack.”

  “Where are we supposed to meet Commander Lynch?” Molly asked.

  “In his office. He just wanted us to check in after the hearing and see if he could help us with any questions,” Dillon said.

  “Well, apparently, he could help you in your review of the military law,” the admiral said. “You looked stupid back there.”

  “I said I was sorry,” Dillon said, closing his eyes momentarily, “and I meant it.”

  “I’m glad that you’re sorry. That’s very comforting.”

  “If you want Lynch in the courtroom as part of the trial team, just say the word.”

  “Nope. That’s your job,” he said, studying Molly and Dillon. “I have faith in you.”

  It was a short ride to the JAG building. They were ushered into the conference room where Lieutenant Commander Lynch waited. “Well, how’d it go?” he asked, indicating they should sit down.

  “Not so well,” Molly said.

  “The judge denied our mo
tion and said that it was a legal order.”

  “Ouch,” he said. “There goes the defense.”

  “What’s the worst that can happen?” the admiral asked Lynch.

  He thought for a moment. “A dinner and ten, but it’s per count.”

  “A what?” Dillon asked.

  “A dinner—there’s two kinds. There’s the BCD, the Big Chicken Dinner—Bad Conduct Discharge, and there’s the DD, the Duck Dinner—a Dishonorable Discharge. I’m pretty sure that Article Ninety-two carries the Chicken and a maximum of six months’ confinement at hard labor, but the 119 charge—the negligent homicide charge—is the biggie. It’s a Duck and ten, per.”

  “That would ruin me,” the admiral said.

  “Plus it’s forfeiture of all pay and reduction to the lowest pay grade.” Lynch looked at the ceiling. “I would assume that would be an ensign, but it might be an E-l, a seaman; but I’m not sure. I’ve never really researched whether an admiral can be busted to a seaman—”

  “Well,” Dillon said, interrupting Lynch’s chilling train of thought, “you’re sure a ray of light in an otherwise dark day. We’re just going to put on the best case we can and see what happens.”

  “But what’s the defense? What’s your plan?”

  “Can the court-martial board itself overrule the judge and decide that it was an illegal order? That it was unconstitutional?”

  Lynch shook his head. “No, it’s a question of law. That’s up to the judge to decide. He’ll tell them what the law is and then they’ll have to apply the facts to it. They don’t decide what the law is.... So what’s the defense?”

  “Well,” Dillon said, “I really think we’re just going to have to put out the evidence, do the best we can in cross-examination, and see what happens.”

  “Have you tried many criminal cases, Mr. Dillon?”

  “I’ve prosecuted seven or eight in San Diego County. All misdemeanors. I never defended any criminals.”

  Lynch showed his surprise. “You can certainly challenge the prosecutor’s case and simply say he hasn’t proved it, that’s one way to defend it. But I’ve found the most effective way is to tell your own story. To explain why they’ve gotten it all wrong and why they’ve not represented the facts. You have to give a convincing story for yourself to prevail in difficult cases.”

  “I know that,” Dillon said. “But this isn’t going to be an argument over the facts.”

  The room grew quiet as no one spoke, no one sure of what to say. Finally Admiral Billings said, “Can’t we just use the oath?”

  “What?” Dillon asked.

  “The oath of office you mentioned,” he said. The admiral hesitated and then went on. “The oath to support and defend the Constitution comes first, an order would come second. That’s how I saw it then, that’s how I see it now.”

  Lynch said, “It’s kind of different, might work. I’m sure there isn’t any law on it, so you should be free to make the argument. But again, it’s probably a question of law and the judge will deal with it.”

  “Okay,” Dillon said. “We’ve got a lot of work to do. Admiral, I’m going to need your take on all these witnesses that they’ve listed. Commander Caskey, Colonel Tucker, of course, Admiral Hart, Chairman of the Joint Chiefs of Staff—he looked up—“do you think he’ll really come?”

  “Yeah. They want to get me. They’re going to use whatever tools they have to do it.”

  Lynch said, “Maybe the judge will remove the President as the convening authority. Maybe the whole thing will go away.”

  “You really believe that?” Billings asked.

  “No. But it’s possible.”

  “What if they did remove the President? What would happen?”

  “Someone else would have to be the convening authority.”

  “Like who?”

  “Like the Secretary of Defense. He can do it.”

  “Great,” Dillon said, having allowed himself a moment of hope, now dashed. “And guess who appointed him?”

  Chapter Nineteen

  The H-46 banana-shaped helicopter touched down gently on the tarmac on San Clemente Island, seventy miles northwest of San Diego. It was a large island owned by the Navy and used for many purposes, including live Naval gunfire, practice carrier landings, and various special forces operations, some of which were acknowledged, some of which weren’t.

  Dan Hughes’s platoon marched down the ramp into the bright California sunshine to the waiting gray bus. The men climbed inside and found seats as their gear was loaded onto a van parked behind the bus.

  A second-class petty officer in a camouflage uniform waited until everyone was sitting down before he spoke. “I’m Petty Officer George. I’m with the operations staff here. Welcome to San Clemente. We’re going to go straight to the operations center where Lieutenant Commander Sawyer is waiting to give you your initial brief.” George sat down and the bus began to roll.

  The men glanced at one another. They knew Lieutenant Commander Whip Sawyer’s presence meant this was no training operation.

  The bus headed for the northwest bay of San Clemente and came to a stop in front of a low cement building. The men were ushered inside, their ID’s checked against a list, and then taken into a small auditorium. Sawyer waited on the stage.

  Hughes walked to the front row and greeted Sawyer.

  Sawyer waited for the SEALs find seats. Petty Officer George closed the door behind the last man and strode to the front of the room. “Afternoon. Nice to see you again. Has anyone made any phone calls or had any contact with anybody outside of the SEAL Team since isolation started?”

  The seated men indicated they had had no such contact.

  “Fine,” said Sawyer. “The isolation will continue throughout your stay in San Clemente. Together we will be planning an operation which we will go into greater detail about later. You’re not going to Thailand, and this is not an exercise.” He scrutinized the faces before him. “You’ve all heard that this George Washington character who murdered the American sailors from the Pacific Flyer is on the loose. We think we’ve found him. We’ve got it narrowed down to two islands and we’re doing imagery now. It’s our job to get ready to go onto that island and free the hostage left there. We’re virtually positive we’ve located them. We’ve intercepted some encrypted UHF not too far from Bunaya where the Marines went ashore in the last attack.... I’ll be giving you several more briefs in the next twenty-four hours. I just wanted to let you know why you’re here. We don’t know when it will be time to go. Could be less than twenty-four hours, could be more. The more time we have, the more ready we’ll all be. But the longer it takes to get us on our way, the more likely it is that Connie Heidel will be fish bait.”

  The Indonesian defendants stood in groups in the large courtroom waiting for the hearing to begin. The attorneys representing the defendants sat at small tables in the front of the room discussing the case and wondering what the court was going to do with this gaggle. The attorneys were enjoying themselves. The more they got into it, the more they realized that not only was this a big, international case with lots of juicy legal issues and unlimited press interest, but that even if the U.S. Attorneys were able to bring it to trial, it was going to be hard for the government to prosecute. Real hard. They were also reveling in the idea of having a team of attorneys on the defense side. Usually it was one or two defense lawyers against the entire U.S. government. Not this time. There were more attorneys for the defense.

  The federal judge opened the door in the wood paneling and came into the courtroom. “All rise!” the clerk said as the judge moved up the steps to the bench. The defendants, attorneys, spectators, and journalists stood up and became quiet.

  “United States District Court for the District of Hawaii is now in session, the Honorable Ellen Tanaka presiding. You may be seated.”

  Except for the defendants, everyone present sat down. The judge looked down at the clerk. “Call the calendar, please.”

  The cl
erk read from her list. “United States vs. John Doe One through Forty-eight, motion for dismissal.”

  Judge Tanaka surveyed the spectators, the defendants, and the attorneys. She saw Craig Marsh in his usual sportcoat. He had been in her courtroom hundreds of times, and almost always in the same sportcoat. It annoyed her, but she tried not to notice. She noticed anyway. “Mr. Marsh, I understand you brought this motion on behalf of your client, and all other defendants have joined. Am I right?”

  He went to the podium and spoke into the microphone. “That’s my understanding, Your Honor. I don’t believe there’s a defendant who hasn’t joined in the motion, but if there is…” He paused, indicating the other defense attorneys with a sweep of his hand. They all shook their heads. “… I think they’ve all joined, Your Honor.”

  “Very well. I’ve read your motion, a motion to suppress the confession. You’re proceeding under Rule 12(b). Right?”

  “Yes, Your Honor.”

  “You may proceed.”

  “Thank you, Your Honor.” He began, “In the last scene of Casablanca”—he put up his hands for emphasis as if reviewing the film in his mind—“Humphrey Bogart shoots the Nazi on the runway in the dark fog of Morocco.” Everyone in the room watched him. Some because they thought he’d lost his mind, others out of amusement. U.S. Attorney Harry D. Babb’s face showed frustration and anger. “Louis, the French police chief, is standing right next to him when he does it. They exchange glances and Louie turns to his lieutenant and orders him to round up the usual suspects—knowing Bogart is the one who shot the Nazi. The police officer blows his whistle and off they go to round up the rabble of Casablanca and interrogate them.

  “Your Honor, not only did my client not commit the crime with which he’s been charged, he doesn’t even have the benefit of being one of the usual suspects. The United States cannot take any comfort in the idea that these men probably committed some crime, as they might if they did in fact round up the usual suspects, because these people are Indonesian and Malaysian nationals. They’ve never been here before. The crime that was committed supposedly occurred in Indonesian or international waters, not here. But more important, there’s no evidence that my client or any of these other men were anywhere near the Pacific Flyer when this crime occurred. There’s not one eyewitness. But there is the supposed confession.