“Mr. President, I began with the Posse Comitatus Act, 18 U.S.C. § 1385, United States Federal Law of 18 June 1878. As originally applied, it intended to remove the army from domestic law enforcement, and it was the result of President Grant sending a posse comitatus—meaning ‘the power of the county’—to the polls during the election of 1878. Following the Civil War, the army was routinely called to maintain order and to enforce the policies of Reconstruction on the South. The U.S. troops were highly visible at political events and polling places until Southern Democrats, arguing that the army was becoming politicized, passed The Posse Comitatus Act, which removed the army from civilian law enforcement and returned it to the military and the job of defending America’s borders.
“Accordingly, many experts maintained that the act precludes the use of U.S. military forces in domestic security operations. But that thinking changed a great deal on September 11, 2001.”
Morgan Taylor lowered his eyes out of respect.
“Based on my understanding of the crisis at hand,” Kessler continued, “ I conclude that the president of the United States has ample statutory and constitutional authority to deploy the military against foreign terrorists operating within the United States.”
“What about against American citizens,” Mulligan asked.
“I’ll come to that Mr. Director. But first, in consideration of the president’s constitutional powers…” She reached into her open briefcase to the side of her chair and withdrew a file. “This is a 2001 Congressional joint resolution following the attack on the World Trade Centers.”
Kessler handed copies of the resolution and allowed time for a cursory reading.
“Enactment of S.J. Res 23 recognizes that the president may deploy military forces domestically to prevent and deter similar acts of terrorism.”
“Done deal,” the vice president announced.
“There’s more, Mr. President. Much in the same vein, but necessary to present.” In a brave and almost scolding tone to the new vice president she added, “I take it this exercise is more than academic or rhetorical, so it should not be given short shrift.”
“Point taken, Ms. Kessler. Please continue,” the president responded at the same time he shot a don’t go there expression to J3.
“Back to the Posse Comitatus Act and its consideration in favor of military use. It can be argued that Posse Comitatus only applies to domestic use of the armed forces for law enforcement purposes. Taking law enforcement out of the sentence opens up other considerations. But for that application, we need to look at the Fourth Amendment which guards against unreasonable searches and seizures.
“It is my opinion, and the position of White House legal staff before me, that rather than debate whether the Fourth Amendment would apply, we should ask whether it would not apply in the ‘situation’ as I understand it. Given the problem posed to me, I do not think that a military mission against a terrorist cell within the United States would be required to demonstrate probable cause or obtain a warrant, and therefore not be obligated under the Fourth Amendment. The government’s responsibility to protect the nation from attack outweighs the inherent privacy interests and trumps the search or seizure protections.”
Everyone was utterly impressed with Kessler’s command of the law. She was breaking it down into completely understandable bites that seemed to support the vice president’s plan.
“Now I want to consider the difference between warring belligerent nations and terrorists. Traditionally, America has prosecuted wars with countries where the theater of military operations was on the battlefield, with men in uniform and absolute distinctions between sides.”
She cleared her throat, suddenly a little less confident talking war in front of one of the nation’s greatest military minds.
“Today, many of our enemies wear no uniforms. They have little or no formal military training. They can be children or seniors, bicycling or walking to a town square rather than marching to war in a platoon. They may not even represent a nation. In fact, it is their aim to blend into everyday civilian life in a way that disguises their identity, their cause, and their mission. As a result, the rules of engagement change. And protection of an American citizenry, suddenly part of the battlefield that has moved into their hometowns, becomes a challenge beyond the capability of local law enforcement.
“In my opinion, the Fourth Amendment would not restrict or prevent military operations under your authority to prevent or repeal attack or invasion against the United States.
“So tying together history with new world enemies, the established law in the absence of rules of war suggests, in my opinion, that Article II of the Constitution, which vests the president with the power to answer threats to national security, provides for the use of the armed forces in domestic operations against terrorists.”
“Amen!” J3 proclaimed.
Katie ignored it. She wasn’t finished. Her voice suddenly shook when she realized that what she had said was somehow going to involve Scott. Was she ultimately giving the president and the general the legal ammunition to act?
“Mr. President,” she slowly stated, “the Constitution, supported by past administrations, Congress, and the courts indicates to me that you, sir, have the authority to take military actions, both domestic and foreign if you determine that such actions will be necessary to respond to terrorist threats against the United States. However, this is only my opinion. A briefing with the chief justice would be in order.”
“Your buddy,” the president said.
“In a manner of speaking. I don’t believe he’s anyone’s ‘buddy.’”
Katie Kessler had, on her first trip to Washington, stood eye-to-eye with the nation’s highest court justice arguing law and precedent and did not blink. She admired Chief Justice Leopold Browning, but the thought of facing him on this issue concerned her.
“I don’t know if I can,” she admitted.
“I don’t know anyone better to do so. But perhaps the attorney general can accompany you this time to reinforce the president’s position and the importance. After all, if it comes to a ruling at the Supreme Court, we will need five justices on our side; Browning among them,” Taylor explained.
“Yes, sir. We’ll set the meeting immediately,” Eve Goldman offered.
Katie Kessler melted into her seat, a sure signal that the formal side of her presentation was over.
“Questions?” Attorney General Goldman asked.
“One. Back to search and seizure. If…,” FBI Chief Mulligan said, not having a better word, “there is such a need, are warrants required?”
Eve Goldman jumped in. “Acting in the nation’s best interests and under the command of the president, our forces—and I’ll use forces as an umbrella term—must be free to search and secure enemy quarters, whether they are within military command posts, cars, or homes. And once those forces are in place they must be able to seize papers, computers, documents, devices, smartphones; anything that could be considered relevant. All of this without having to show probable cause before the court. And, I should add, without having to demonstrate that such actions were constitutionally reasonable.”
“What if the potential targets were American citizens and not foreign nationals acting under a flag?” Mulligan asked.
“But still suspected terrorists?”
“Yes, and a threat to national security.”
Eve Goldman didn’t get a chance to sound like a general or a law enforcement officer much. But she took the opportunity now.
“Then you go get ‘em.”
Eve Goldman and Katie Kessler were thanked and excused. J3 and Mulligan remained with the president.
“So here’s how it works,” Taylor stated. “The general’s running the pregame and the game. The bureau takes over after the general’s through with the postgame. The hand off will be right there on the spot. You have twenty-four hours to set up your safe house.
“We have no margin of error, Bob,” Taylor
emphasized. “It’s J3’s show and I like what he’s come up with. But then I’m counting on you for actionable intel. You’ll be dealing with a thug, not a trained terrorist. Make him talk fast, but don’t turn this into a Guantanamo-type investigation.”
“Oh believe me; he’ll talk just so he won’t have to listen to my man Bessolo for too long.”
It was intended as a joke, but no one was laughing these days.
Fifty-one
The Supreme Court
21 January
1100 hrs
Katie and Attorney General Goldman were at the chief justice’s door precisely two minutes early. Promptness was something Browning required from everyone—employees, visitors, even emissaries from the White House.
“Come right in. May I offer you anything other than water?”
The point was well taken.
“No thank you.”
“It’s bottled,” he said picking up an eight-ounce plastic container.
Browning favored a traditional American décor for his office. Dark wood paneling, free-standing lamp lighting, brown leather furniture, and an antique Colonial rug. Nothing contemporary. It was austere, if not officious, and just the image he wanted to project.
Katie observed the portraits on his walls. Seven in all in equally distinguished frames. Three on one side; four on another. There was something unnerving about the grouping of three.
“Ah, the men who look over me. Start with the opposite side, though.”
Katie Kessler turned and examined the four paintings that hung to the right side of his desk. There was a spark to them; life in the eyes; brilliance that shined through. She looked back at the others, then again to the four she found more inspiring.
“You see a difference?”
“Yes, sir.”
“So do I. These men, Ms. Kessler, are my conscience. Always sitting in judgment of me. All former justices who remind me to consider the Constitution as the conscience of the founding fathers, interpreted in the best interest of the times. Do you recognize them?” Browning asked
“Earl Warren is on the right.” Katie replied. She paused. “Next to him Justice Brandeis?” She stopped.
“Madame Attorney General?”
“John Marshall is on the left. I don’t know the fourth.”
“Ms. Kessler?”
“No, your honor, I’m afraid I don’t either.”
“Seventy-five percent between the two of you. A passing grade, but not Magna Cum Laude for the White House. The fourth is Charles Evan Hughes. Former New York governor. Ran for president. Obviously defeated. He opposed many of Roosevelt’s initiatives, upheld minimum wage, and helped avoid a terrible showdown between the court and President Roosevelt through diplomacy. Yes, diplomacy, even on the court. His work to keep the court from being expanded to fifteen under FDR was applauded as The Switch in Time That Saved Nine. Hughes worked closely with my model you correctly identified, Ms. Kessler, Louis Brandeis.”
Browning took a few steps to the opposite wall, drawing his audience’s attention. “But it’s these men who I argue with as I prepare my rulings.”
The three portraits cast a cold, unctuous stare.
“I’ll spare you the quiz this time,” Browning asserted. “Samuel Chase, James Clark McReynolds, and Charles Evans Whittaker. In my opinion, three of the most notorious Supreme Court justices ever to live. And what do they remind me of?” Browning, ever the judge, asked the visiting.
“Integrity and honesty,” Eve Goldman said.
Browning was amused. “Perhaps.”
“Your decisions become history and you with them,” Katie added. “Rule as Justice McReynolds did, and you risk residing in infamy. Perhaps you would be placed on some future chief justice’s wall of shame.”
Leopold Browning smiled broadly. “Are you sure I can’t lure you over?”
“Your honor, it would be inappropriate to discuss that while I’m representing the White House. I’m sure Justice Brandeis would agree. Didn’t he say, ‘The world presents enough problems if you believe it to be a world of law and order; do not add to them by believing it to be a world of miracles.’”
“Well, counselor. You have me. Consider the comment stricken. Now to the point of your trip across town.”
Katie looked to the attorney general to begin as they had rehearsed. Eve Goldman began.
“We are here to discuss the president of the United States’ decision to take military action within our domestic borders. We also can discuss the possibility of invoking martial law and the potential of declaring a national State of Emergency. But let’s just start with the first argument.”
The attorney general was that direct. “The president, on precedent of prior chief executives, will release ‘The National Defense Resources Preparedness’ executive order. It will state that under the present emergency, the federal government has the authority to assume control of aspects of American society from farming and livestock to transportation, industry, health care facilities, defense and construction, and…water resources. All will fall under the authority of the president of the United States.”
All of this came at lightning speed while everyone remained standing. Leopold Browning directed Goldman and Kessler to sit. He walked to his desk, commanding their complete attention.
“President Taylor is not the first to make such a proclamation. However, that does not make it the proper course of action.”
“Mr. Chief Justice, there are extenuating circumstances. In years’ past, presidents issued their orders primarily in anticipation of the need, and sometimes in response; never fully implementing martial law, but establishing their right. Actually their authority,” Goldman answered.
“An important delineation,” Browning scowled. “Government has the power and can establish the authority. But government does not have the right. We, the people, have rights, conveyed by the Constitution. So just to be sure—we agree on the distinction?”
“Yes, sir. We absolutely agree.”
“Then please continue. But limit your points to what is intended by the Executive Branch.”
“If I may,” Katie began, “The president’s intent is for the executive order to be in force if and when it is necessary to restore order and to manage the water resources of the nation. This is in keeping with President Obama’s order of March, 2012.” She read from notes in her Coach leather portfolio. “The domestic industrial and technological base is the foundation for national defense preparedness. The authorities provided in the act shall be used to strengthen this base and to ensure it is capable of responding to the national defense needs of the United States.
“Mr. Chief Justice,” she continued, lifting her head above the paper, “the order then, as now, is designed to deliver supplies, resources, and security to the people of the United States in a time of national emergency. We live in such a time right now. At this very moment.”
“Ms. Kessler, you are persuasive, but local and state police can provide the first line of authority.”
“Can they, your honor? Do you know that as a fact? The national security briefings I have seen, as well as news reports, strongly paint a picture of a breakdown of civil authority escalating on a geometric scale.”
“And the president is willing to eviscerate due process and judicial oversight for any action deemed by the Executive Branch as necessary in the interest of national security?”
“In the interest of saving lives, Justice Browning. Saving American lives.”
“Ms. Kessler, I may be chief justice of the Supreme Court of the United States, but I am also a father and a grandfather. Do not lecture me on families. I value the lives of all Americans—all Americans including my family.”
Katie used a technique she learned in law school. She took her time responding and she apologized to the bench.
“Your honor, I sincerely apologize. Perhaps if I take an historical approach.” Katie intentionally looked at the wall of the favored justices. “President
Roosevelt signed the first national defense resources preparedness mandate, which has been amended over the years by other presidents including Clinton and George W. Bush. Furthermore, the new order is rooted in the Defense Production Act of 1950, which gave the government powers to mobilize national resources in the event of national emergencies.”
Goldman rested her arm on Katie’s. She’d drive the point home.
“Mr. Chief Justice,” the attorney general argued, “The Supreme Court did not rule then, and it is the opinion of White House counsel that the court in whatever accelerated process may be at hand, need not rule now.”
Justice Browning straightened his tie. He was an impeccable dresser, though his own wardrobe was rarely seen under the court robes. He adjusted his American flag cufflinks forward and cleared his throat.
“Martial law, counselor, and it could come to martial law… is the suspension of civil authority and the imposition of military authority. That has not happened except on a state level and even then in relation to national disasters. Giving the president the military authority to act as police would be unprecedented. And then there is the issue of Habeas Corpus.”
Katie was expecting this argument to come up. When it did, she had the defining response.
“Sir, Article 1, Section 9. The United States Constitution addresses exactly that. Only Congress can declare martial law unless ‘when in the Cases of Rebellion or Invasion the public Safety might require it.’ Sadly, the times require it. Public safety absolutely requires it.”
“Ms. Kessler. Are you sure you don’t want a job over here?” Leopold asked, awarding her a clear win.
“Mr. Chief Justice,” she said scolding him, “you are out of order.”
Browning laughed. She’d gotten to him once again.
Fifty-two
Gulfton, Texas
23 January
As a community, Gulfton, in Southwest Houston, had seen better days.
In the 1960s and ‘70s, booming oil money threw cash in the pockets of thousands of upwardly mobile young men and women from all over the country who were willing to come and work in Gulfton. Money also talked to immigrants from the Middle East, the Pacific Rim, and South America in need of service jobs. Land was abundant, dollars flowed like oil. Builders prospered.
Scott Roarke 03 - Executive Command Page 30
