“In this trial though, the prosecution has tried to convict Admiral Billings through character assassination. The prosecution dragged out events that occurred many years ago and about which there is simply no evidence at all. Based on rumor and innuendo, the prosecutor tried to paint Admiral Billings with tar using a brush not of his making, nor even of his knowledge. Such a weak attempt to discredit the admiral shows the weakness of the prosecution’s case. In his closing argument, trial counsel tried to imply how simple this case is. How no thought is needed for a conviction. He apparently believes the court is like a candy machine. Pull the lever for conviction. It’s automatic.
“Yet every witness brought by the prosecution turned out to be contrary to the very things the prosecution would have us believe.
“Let’s not forget that Admiral Billings is being charged with negligent homicide here as well as disobeying a direct order. Trial counsel hardly even mentioned it in his closing. He no doubt realizes such a charge is simply indicative of the political nature of the charges and the vendetta the convening authority, the Presiden—”
“That’s enough of that, Mr. Dillon,” Diamond scolded.
“Yes, sir … the political nature of the charges and the attitude of the source of those charges,” Dillon went on. Then he paused, daring Diamond to say something. He didn’t. “The homicide charge, of course, turns on whether or not his operation against the murderers on Bunaya was proper or not. It carries with it the assumption that Admiral Billings’ conduct was not authorized. The fundamental issue though for all the charges is whether or not Billings disobeyed the President’s order, and if so, whether that disobedience was justified.
“The Chairman of the Joint Chiefs tells us that they knew about the kidnapping of the missionaries before the attack occurred. Did the Joint Chiefs or the President notify the battle group of the kidnapping? No. They had already cut them off. They weren’t telling the battle group anything. They were depriving them of intelligence, satellite information, and normal Navy communications.
“Did that stop Admiral Billings from continuing to notify Washington of what he was doing? No. He continued to give them updates and reports of every move he was making and every plan that he had. He told them about the F-14 being shot down.
“Shot down by a surface-to-air missile from these terrorists. Destroying a fifty-million-dollar F-14 and nearly killing two crewmen, then racing out aboard the same Cigarette boats used to attack the Pacific Flyer to capture the crewmen. That is clearly an act of hostility on the part of the terrorists. Those Cigarette boats were stopped by an F-18. The attack on Bunaya was justified for that alone. American forces are entitled to defend themselves from attack.
“But more important, Admiral Billings did exactly what he should have done under Navy and military law. His conduct was perfectly in keeping with the great traditions of military law. Did you listen carefully to the Chairman of the Joint Chiefs?” He focused on the faces of the admirals, who regarded him silently.
“Admiral Hart made a point of the efforts that he and the President went to, to ensure their order arrived at the battle group before the Letter of Reprisal arrived. It was important to them to get it there first. And they were successful. And then the Letter of Reprisal was hand-delivered. I’ve made a copy of it for each of the members of the court and distributed it before this afternoon’s session. Before court this afternoon I asked that the court take judicial notice of the Letter, which has been done. It is an exhibit in this trial. You should all have it in front of you. The language of that letter is very clear. It directs Admiral Billings to attack and, if he does not meet with resistance, to capture the persons responsible as well as the participants in the attack on the Pacific Flyer. It doesn’t say if you choose to, or if you feel like it—it directs him to. Admiral Billings then sent a message to Washington indicating his intention to comply with the Letter of Reprisal. That message is also in front of you.”
Dillon was silent for a minute. “It is a fundamental tenet of military law that an order received after another order must be obeyed. A subsequent order by definition supersedes the preceding order.”
The crowd in the back began to buzz as his point and its significance were understood. “Admiral Billings was bound, required, to disobey the President’s order because he received a subsequent contradictory order. This court earlier has declared the President’s order to be a legal order. There is likewise no determination by this court whatsoever that the order from Congress, the Letter of Reprisal, is somehow illegal, or improper, or not an order. Therefore, Admiral Billings was faced with two legitimate and valid orders, but received one after the other. As the case of United States vs. Essig clearly states, an order subsequently received supersedes the prior valid order.”
Pettit almost climbed over the table. “This is totally out of order, Your Honor! Defense counsel cannot come up with a new theory in argument and then argue the law to the Members of the court! This should have been argued during the jury instructions—”
Diamond saw the implications immediately. “I’m going to excuse the Members of the court to conduct an Article 39A session.” He turned his attention to the court Members. “If you will excuse us again, I’m afraid there’s something we need to deal with.” the Members of the court filed out of the courtroom.
“Mr. Dillon, I’m going to give you the benefit of the doubt,” Captain Diamond began, clearly furious. “You don’t have much experience in courts-martial, or any other trial setting for that matter. But you are way over the line here. You don’t hide your theory until the last minute and then argue it to the Members of the court without even asking for a jury instruction. It is very possible I’m not even going to let you make this argument, which may mean I’ll have to declare a mistrial and we’ll have to start all over. What is your response?”
Dillon was surprised by the judge’s remarks. He hadn’t anticipated having to get permission to make an argument. “I apologize to the court for not being as familiar with the process as I should be. I really don’t have an excuse, Your Honor. If I need a jury instruction, then I request one.” He pushed his hair back as he tried to read Diamond’s face. “As to the timing, I’m afraid I hadn’t thought of this until noon today. That’s why I’ve only made it now. If I had thought of it before, I would have brought it up. Unfortunately, it only occurred to the over the lunch hour.”
“Over the lunch hour?” Diamond asked, clearly not believing him.
“Yes, sir.”
“Mr. Pettit?”
“Surely the court is not going to allow the defense to make this silly argument at this late point in the trial?”
Diamond tapped his pencil on his pad. “It is the law. As to whether it fits these circumstances, I’m not sure. But you can’t argue with the case law, which is familiar to all of us.”
“We’re prejudiced, Your Honor! We’ve had no chance to research whether it does apply to this circumstance or not. There may be good authority that is on point, but I can’t find it sitting in this courtroom!”
“I’m sympathetic, but I’ve read all the cases in this area, I think, and I don’t remember any that are particularly enlightening as to a Letter of Reprisal. I’m going to let him argue it.”
“But, Your—”
“Bailiff, bring the members of the court back into the courtroom.” Diamond concluded the conversation.
When the members settled into their seats, Dillon reapproached the podium. Diamond signaled that he could continue. Dillon tried to sound as if he had been stopped in mid-sentence and was continuing exactly where he had left off. “For example, if a sentry is ordered to take a post from 0400 to 0800 on a given day, and a superior officer comes to his post and orders him out of the post to go and take a position a hundred yards into a forest, he is bound to do so. It does not mean the first order was invalid, it simply means that the second order supersedes it. He otherwise could be tried for violating the second order.” Dillon was watching t
he admirals’ faces carefully. He could feel the intensity of the people behind the railing, whose eyes were fixed on him. He was energized and encouraged by them.
“That is exactly what happened here,” Dillon said, raising his voice in enthusiasm.
“If the President wanted him to do something different than comply with the Letter of Reprisal, the President had that opportunity! Admiral Billings sent the message that you have before you telling the President and the Chairman of the Joint Chiefs that he was going to comply with the Letter of Reprisal. The President could have issued another order and contravened the Letter of Reprisal. But not only did the President not issue another order telling him to return immediately to Pearl Harbor, the President didn’t even respond to Admiral Billings’s message. He took affirmative steps to hide information from him and ensure that whatever he attempted failed. To hang him out to dry. To make him look bad.” Dillon let the words reverberate.
“Did the President know that the terrorists had shoulder-fired missiles that might bring down a helicopter full of Marines? We don’t know. Did the government have additional information on how many people were on the island or how many were armed? We don’t know. What we do know is that no such information was ever conveyed to Admiral Billings. He was left to conduct the attack on his own at the direction of Congress.
“To now hold Admiral Billings responsible for disobeying the prior superseded order of the President would be completely contrary to military law, and manifestly unfair and unjust to Admiral Billings and the Navy. Naval officers are expected to obey the orders that are given to them and must be allowed to do so. You cannot issue an order to disobey all subsequent orders and obey me only! The commanding officer cannot tell his seamen, you must disobey every order you get after this and obey only me. Likewise, the President cannot issue an order requiring that Admiral Billings obey only him and disregard subsequent orders.”
Dillon stopped to take a deep breath. “Simply put, gentlemen, you must acquit Admiral Billings. And it goes without saying that if he is acquitted of the charge of disobeying the order of the President, then the attack was legal. And if the attack was legal”—he glanced around as he reached the conclusion of his summation—“then there cannot possibly be a manslaughter charge. Dr. Carson’s death was a regrettable incident—a civilian dying in battle. A civilian whom Admiral Billings didn’t know about because the President didn’t tell him. The Marines and the sailor, also regrettable, are fairly predictable results of armed conflict.” The emphasis he placed on his last words told the admirals clearly that in Dillon’s mind there was only one possible verdict. “Thank you.” He returned to his seat.
Molly beamed at him. Billings appeared very pleased but said nothing.
“Trial Counsel?” said the judge.
Pettit groped for a response. Slowly he went to the podium to address the court. “So, now we have it. Finally Admiral Billings tells us what his excuse is for failing to comply with the President’s order. A subsequent order issued by Congress. However, Congress has no power to issue orders. Congress is not in the chain of command and Congress is not the Commander in Chief. To say that a commission is an order is simply false. This is a desperate attempt to cloud the issues and avoid the inevitable. The court should not be sidetracked by this specious argument. The order from the President was valid and legitimate, and Admiral Billings disobeyed it. Plain and simple. His disobedience resulted in the death of American servicemen and an American missionary. Those deaths must not go unpunished.” The prosecutor ended with his thanks and sat down.
“Pretty weak,” Billings said out of the side of his mouth to Dillon, reflecting his opinion of the trial counsel’s rebuttal. Dillon’s head nodded almost imperceptibly to indicate his agreement.
“Thank you, Trial Counsel. Thank you, Mr. Dillon,” the judge said. “This case will now be submitted to the court for deliberation. We will contact you as soon as there is a decision.” The judge banged the gavel and the courtroom was immediately filled with hundreds of conversations.
Dillon, followed by Molly, Carolyn, and Admiral Billings, opened the door to his apartment. Dillon tore off his necktie and threw it on the couch. He sighed deeply as he sank into the couch cushion and leaned his head back. Molly removed her suit coat and she sat next to him on the couch. Billings stood in front of Molly and Dillon with his hands on his hips. “What, are you both tired or something?”
“Admiral, I feel like I’ve been hit by a truck,” Dillon replied.
“For a few days of work? This is nothing. You haven’t even risked your life.”
Dillon sighed again. “Yeah, but I’ve risked yours, and that’s even worse.”
“Well said.” Billings took a glass from Carolyn and drank from it deeply. “Don’t worry about it. You did a great job. I couldn’t have asked for any better.”
“You really did, Jim. Thank you so much for helping Ray,” Carolyn said gently. “I thought your closing was brilliant.”
“Where’d you come up with that argument about rules of engagement?” Billings asked.
“I don’t know, it just sort of occurred to me on the fly. Right before I said it.”
“I think that was pretty good. They might buy that.”
“No, that was a throwaway. That was just a distracter for the prosecutor. He was waiting to hear what I was going to say and I wanted his brain to be racing off in that direction. Didn’t want to give him the real argument. I wanted him to be completely blindsided.”
“Do you think the commission really counts as an order?” Carolyn asked.
“Close enough. If you read the language in that thing, it sure sounds like an order. I guarantee you there’s no case out there which says whether or not a Letter of Reprisal issued to a Navy battle group constitutes an order. There may be one if we lose this case, but short of that, I don’t think you’re going to see such a ruling from a military court, so we’re free to argue it.”
Molly crossed her ankles as she relaxed next to Dillon, her eyes closed. “I’ll never forget the look on that prosecutor’s face when you dropped that argument on him. I thought he was going to have a stroke. I think it’s a winner, Jim.”
The phone rang. Dillon picked up the portable phone and hit the “talk” button. “Hello? … Hey, Frank. How are you? … In trial. Where do you think? … No, we haven’t been near a television all day.... When? … really? Are you kidding me? … Wow.... Yeah, I don’t know. It depends on when the jury decides.... I’ll call you.... Bye. Hey, thanks for watching out for me. I owe you.... Yeah. Okay.”
“What?” Billings said.
“House voted to impeach the President. This afternoon while we were in trial.”
No one spoke for a few moments. Finally Admiral Billings said, “Seriously?”
“Two articles were approved. Because he’s unqualified to serve as President, and for failure to defend the interests of American citizens. Sort of a dereliction of duty charge.”
“So what were you thanking him about?” Molly asked.
Dillon wished she hadn’t asked. “I’m one of the two managers. The Speaker appointed the. Sort of Pendleton’s bag carrier. Pendleton didn’t want me, but after reading the memo I sent to the Speaker, he agreed. Said I’m too clever to leave on the bench, whatever that means.”
“You’re going to prosecute Manchester?”
“Looks like it. But Pendleton will do the actual witness examinations. I’m just there for moral support, or something.”
“Well,” Carolyn said. “We are privileged to have had you defend my husband first. We’re in the presence of greatness.”
“I don’t know about that…” Dillon said, feeling awkward, searching Molly’s face to see if she was angry.
“We’ll go to the Q,” Billings said. “Call us as soon as you hear—”
The phone rang again. Carolyn picked it up. “Hello? Yes, he’s right here,” she said, extending the receiver to Dillon again. “If you need a full-time recepti
onist, I’m available,” she said, smiling.
“Jim Dillon,” he said into the receiver. He glanced at Billings. “We’ll be right there. “He hung up. “The court’s decided. Let’s go.”
Chapter Twenty-Five
With his usual flurry of activity calculated to capture the most press attention, the Speaker had once again called an emergency meeting of the Rules Committee. The committee had, predictably, issued new procedures that would allow Congress to consider “Rules Concerning Capture on Land and Water” that very night. Stanbridge was in heaven. The press was swirling around him, and the President was on his heels. And Pete Peterson, the Senate majority leader, had extracted from the Democrats in the Senate an agreement to consider the matter on the same evening, because they were sure they could defeat this lunacy tonight, before there was time for the public to demand action against George Washington for the murder of Heidel, especially in light of the release of the Indonesians from federal custody in Hawaii, and no word on Mrs. Heidel.
What Peterson and Stanbridge were aware of, but very few others, was that they had located George Washington. The key was to get the bill passed without letting the public—and George Washington—know that.
Stanbridge hesitated only because he didn’t know what President Manchester would do. Stanbridge didn’t want to give him a chance to redeem himself unwittingly. He doubted Manchester could repair his public image at this point, but Manchester was bright. Stanbridge knew better than to underestimate him. He and Peterson both thought it unlikely that Manchester would simply refuse to deal with their newly issued Rules of Capture.
The Price Of Power Page 34
