Against All Enemies ps-4

by John G. Hemry

  Commander Carr looked mildly puzzled. "We've just been informed that the computer systems on the USS Michaelson contain safeguards which would prohibit such downloads."

  "Yes. That's right. If they haven't been deliberately interfered with. There is, however, software which allows a determined user to bypass those safeguards by essentially misleading them as to the actions being taken. The tap was designed to detect such bypassing despite the use of the software."

  Carr nodded. "Then it would only report downloads which had deliberately," she paused for a fraction of a second, "bypassed the normal safeguards on the Michaelson 's systems?"

  "That's right."

  "And one of the terminals upon which you installed this tap was that normally used by Lieutenant Pullman?"

  "Objection." David Sinclair was on his feet again. "Your Honor, I know this point was brought up in pre-trial arguments, but I must again protest against the use of evidence acquired from a terminal belonging to Lieutenant Pullman without benefit of a search warrant."

  Commander Carr shook her head. "I must remind defense counsel that the terminal did not 'belong' to Lieutenant Pullman. It was, as I stated, normally used by Lieutenant Pullman."

  "Using semantics to avoid requirements for legally obtaining evidence-"

  "It is not a matter of semantics," Carr broke in.

  Judge Campbell rapped her bench with her gavel. "I'll remind Trial Counsel and Defense Counsel that they are to maintain polite and civil exchanges in my court-room. Now, Commander Carr, did the terminal in question belong to Lieutenant Pullman?"

  "No, Your Honor. The terminal was assigned to the desk used by Lieutenant Pullman, but it was and is the property of the U.S. government. Further, the terminal was and is located within a stateroom onboard the USS Michaelson, which location is also on government property. Since the terminal was not the private property of Lieutenant Pullman, and since it was located in a working space on a ship owned by the government, Lieutenant Pullman had no expectation of privacy on either that terminal or within that stateroom."

  "Your Honor," David Sinclair protested, "an expectation of privacy is perfectly reasonable if a piece of government equipment is so assigned to individual use, within that individual's living area, that it becomes de facto private property."

  Commander Carr let apparent exasperation show. " De facto private property? Can counsel for the defense provide case law supporting the supposition that government property can by assigned use become the private property of the user? Especially in the case of military equipment?"

  Campbell held up her hand to halt the debate. "Defense Counsel, I must overrule this objection. Legal precedent is clear that both the terminal and living area in question were public property and that therefore no expectation of privacy existed for Lieutenant Pullman. That being the case, no warrant was required for U. S government personnel to access that terminal or that area."

  David Sinclair grimaced and sat down again.

  Commander Carr inclined her head toward Judge Campbell. "Thank you, Your Honor. Special Agent Connally, I'll repeat the question. Was one of the terminals upon which you installed this tap that normally used by Lieutenant Pullman?"

  Connally nodded. "That's correct."

  "There was no doubt it was the proper terminal?"

  "None. It was positively ID'd to me and the ID was confirmed."

  Paul tried not to look like he'd played a role in that. It had to be done. At least I'm not up there testifying and giving away my role in things.

  Carr began walking slowly back and forth in front of Connally. "You installed the tap on the evening on 17 August on a terminal positively identified as that being normally used by Lieutenant Pullman. What happened after that?"

  "We waited for any signal from the tap that illegal software had been used to carry out an unauthorized download of classified information. Late on the afternoon of 20 August, we received a signal from the tap notifying us of a large unauthorized download on that terminal."

  David Sinclair stood again. "Objection, Your Honor. It has not been established that the download on 20 August was unauthorized."

  Without waiting for Campbell to rule, Carr nodded. "I will ask the witness to use the term improper rather than unauthorized. Will that address Defense Counsel's objection?"

  David Sinclair smiled politely. "Yes, it will."

  Judge Campbell pointed her gavel again. "Then the objection is sustained and the witness is directed to use the term 'improper' to describe the downloading of classified information to that terminal on 20 August until such time as it is proven to have been unauthorized."

  Connally didn't seem entirely happy with the instruction, but nodded. "Yes, Your Honor."

  Commander Carr gave a brief, encouraging smile. "What did you do after receiving the signal from the tap on the terminal normally used by Lieutenant Pullman?"

  "We positioned ourselves — "

  "We?" Carr gently prodded.

  "I'm sorry. There were four of us standing by, all NCIS special agents. We positioned ourselves discreetly near the USS Michaelson and waited. After a period of approximately fifty minutes, Lieutenant Pullman was sighted on the quarterdeck, dressed as if he intended to go on liberty. We waited until he left the ship, then closed in on him. Lieutenant Pullman appeared surprised by our appearance, but offered no objection when Special Agent Gonzalez asked for permission to do a scan for contraband."

  Carr held up a hand to stop Connally's testimony. "Did Lieutenant Pullman offer no objection, or did he consent to the scan?"

  "He consented. We obtained a record of the consent."

  "If the court wishes," Commander Carr announced, holding up her data pad, "a copy of the recorded consent can be entered into the record."

  Judge Campbell looked toward the defense table. "Well?"

  David Sinclair stood, then shook his head. "I do not think that is necessary, Your Honor."

  "Ah, but I do," Campbell responded. "Trial Counsel is directed to enter a copy of Lieutenant Pullman's consent to scan for contraband into the record."

  Commander Carr rubbed her lower face for a moment. Paul was fairly sure she was concealing a smile, but couldn't be certain. "Please continue, Special Agent Connally," Carr urged.

  "After receiving the consent from Lieutenant Pullman, Special Agent Gonzalez conducted a scan of Lieutenant Pullman. The scan detected two data coins, one located inside the seam of Lieutenant Pullman's upper garment and one located inside his sock. Based upon what Special Gonzalez determined of the content of both coins, he directed us to place Lieutenant Pullman under arrest. Lieutenant Pullman was read his rights, placed in restraints, and escorted to the brig, where he was turned over to the custody of brig personnel. We returned to the NCIS offices to file our reports on the matter."

  Carr nodded, not saying anything for a moment, while the members watched her and Special Agent Connally. "Thank you, no further questions."

  David Sinclair approached Connally with what Paul thought was a wary look in his eyes, but nothing in his face or bearing betrayed concern. "Special Agent Connally. You testified you're absolutely certain that you placed this tap on the terminal normally used by Lieutenant Pullman."

  Connally calmly gazed back at David Sinclair. "That's correct."

  "Did you ever see Lieutenant Pullman using that terminal?"

  "No."

  "Did you see him using that terminal on the twentieth of August?"

  "No."

  "Do you in fact have any direct personal knowledge that Lieutenant Pullman routinely used that terminal, and that he used it on the twentieth of August?"

  Connally gave David Sinclair a long look. Before she could answer, Commander Carr was standing again. "Your Honor, Trial Counsel has access to numerous witnesses who will swear to having seen Lieutenant Pullman routinely use the exact terminal on which the tap was placed. Trial Counsel also has available the system logs for the USS Michaelson on the afternoon of 20 August which show that Lie
utenant Pullman was logged onto that terminal."

  David Sinclair spread his hands. "Your Honor, I would still like the witness to answer my question."

  Campbell shrugged. "If it will make Defense Counsel happy, then by all means. The witness is directed to answer the question posed by Defense Counsel."

  Connally had kept her eyes on David Sinclair. "In answer to Defense Counsel's question, no, I did not personally observe Lieutenant Pullman seated at the terminal on 20 August."

  "Or on any other occasion?"

  "Nor on any other occasion."

  "Then how can you know whether or not Lieutenant Pullman was the one who downloaded the information that day?"

  Carr stood again. "Objection, Your Honor. Defense Counsel is questioning the witness on a point not covered in her testimony. The witness did not testify as to whether or not Lieutenant Pullman downloaded the information. Her testimony was that a download occurred and that Lieutenant Pullman was subsequently found off the USS Michaelson while in possession of data coins containing information her compatriot identified as containing improperly downloaded material."

  David Sinclair pursed his lips, but before he could speak, Judge Campbell intervened. "I agree, Trial Counsel. Objection sustained. Defense Counsel is reminded to cross-examine the witness only on matters she has testified about."

  "Your Honor," David Sinclair protested, "the witness' testimony clearly implied that Lieutenant Pullman had carried out the download."

  "Be that as it may, she did not explicitly state that as fact. If and when Trial Counsel makes that assertion of fact, you may address it. Let's move on, Defense Counsel."

  "Yes, Your Honor. I have no further questions."

  "Redirect, Trial Counsel?"

  "Just on one point, Your Honor." Commander Carr stood, but remained at her table as she addressed the witness. "Special Agent Connally, were you certain that you had positively identified the terminal routinely used by Lieutenant Pullman before you placed the tap?"

  "Yes. Without a doubt."

  "After Lieutenant Pullman's arrest, when the tap was removed, was the terminal positively confirmed to be that routinely used by Lieutenant Pullman?"

  "Yes."

  "Have you been given any reason whatsoever at any time to doubt that identification?"

  "No."

  "Thank you. No more questions."

  Captain Nguyen twisted her mouth in thought. "Special Agent Connally, I know terminals on warships are sometimes shared. How certain could you be that Lieutenant Pullman would be the one using that particular terminal?"

  Connally didn't even look toward Paul, instead facing the members' table. "Captain, I was told Lieutenant Pullman used that terminal."

  "By whom."

  She didn't appear to hesitate. "One of Lieutenant Pullman's roommates."

  "How many does he have? I'm sorry, how many did he have?"

  "Three."

  'And there are four terminals in that stateroom?"

  "Yes."

  Captain Nguyen nodded and sat back, her brow creased in thought.

  Commander Sriracha raised a forefinger for attention. "Special Agent Connally, reading between the lines here it seems you had assistance on the USS Michaelson in planting this tap. Was the commanding officer of the ship apprised that NCIS was taking this action?"

  "Yes, he was."

  "And he had no objection to this plan or to the placing of the tap?"

  Before Connally could reply, Commander Carr stood up, speaking with a tinge of apology in her voice. "Commander Sriracha, Captain Hayes, the commanding officer of the Michaelson, will be testifying later in the proceeding."

  "Good," Sriracha approved. "I'd much rather hear it directly from him."

  Lieutenant Kilgary spoke next. "Special Agent Connally, I'm frankly surprised that you were apparently able to covertly board the Michaelson and place that tap without being noticed by anyone in the crew."

  "There was some deception involved," Connally stated. "The crew wasn't aware that I was a special agent or in any way connected to NCIS when I was onboard to place the tap."

  Paul once again tried not show any reaction, but he found himself hoping Connally wouldn't veer so far toward implying things that weren't quite so that she'd end up committing perjury. Sure, the crew hadn't known about her status. But Paul had.

  Kilgary looked impressed. "I wish I could ask how you managed that, but I have a feeling you won't want to answer in an open forum like this."

  "No. I wouldn't want to go into details on how we conduct operations."

  Captain Nguyen checked to see if there were any more questions. "That's all. Thank you, Special Agent Connally."

  Carr was speaking again before Connally left the room. "The United States calls as its next witness Special Agent Robert Gonzalez."

  Gonzalez went over much the same information as Connally had provided, except that he testified as to the contents of the data coins. "I only scanned the contents of the first coin briefly, enough to ensure it contained material classified Top Secret. The second coin contained a sophisticated and illegal software program designed to allow the download of classified material despite safeguards."

  Commander Carr gave Gonzalez a demanding look. "So Lieutenant Pullman had in his possession not only a data coin containing classified material downloaded from the systems on the USS Michaelson, but also a data coin containing the software which would allow an individual to successfully carry out such a download?"

  "That is correct."

  "Did Lieutenant Pullman attempt to offer any explanation to you for the presence of those coins on his person when you discovered them?"

  "No, he did not."

  Commander Carr once again held up her data pad. "Trial counsel wishes to enter into evidence a listing of the classified material found on one of the coins in Lieutenant Pullman's possession and a description of the software found on the other data coin in Lieutenant Pullman's possession."

  Judge Campbell nodded. "The court orders those items to be entered into evidence."

  "No further questions."

  David Sinclair approached the witness stand with an openly skeptical look on his face. "Special Agent Gonzalez, you testified that you found two data coins on Lieutenant Pullman. Did either of those coins bear any markings indicating they possessions of Lieutenant Pullman?"

  Gonzalez pursed his lips and shook his head. "No. Neither coin had any markings on it."

  "Did either coin have Lieutenant Pullman's finger prints on it?"

  Another head shake. "No. Both coins had been wiped clean."

  "Then you have no evidence that those coins actually belonged to Lieutenant Pullman?"

  "He had them concealed on himself."

  "Is it possible that someone else could have concealed those coins in Lieutenant Pullman's clothing?"

  "Objection." Commander Carr shook her head at David Sinclair. "Defense Counsel is speculating and asking the witness to speculate regarding matters not introduced into evidence."

  "Your Honor," David Sinclair protested, "it is perfectly reasonable to point out alternative explanations for the presence of the coins on Lieutenant Pullman."

  "Your Honor," Carr replied quickly. "Defense Counsel has introduced no evidence to substantiate the argument that those coins were placed upon Lieutenant Pullman by some third party."

  Judge Campbell blew out an plainly exasperated breath, holding up her palm to forestall David Sinclair's next statement. "If Defense Counsel wants to argue that someone other than Lieutenant Pullman placed the coins upon his person, then Defense Counsel must introduce some evidence to that effect. Do you have such evidence?"

  "Not at this time, Your Honor."

  "Objection sustained. The members are asked to disregard Defense Counsel's speculation in this instance."

  David Sinclair lowered his head for a moment, then looked up again with his face composed. "Special Agent Gonzalez, did you ask Lieutenant Pullman if the coins were his?"

/>   "No. I-"

  "Thank you. That's all."

  Commander Carr still standing, extended one hand toward Special Agent Gonzalez. "Trial Counsel wishes to redirect. The witness should please feel free to finish his last reply. I believe you were elaborating on whether or not you asked Lieutenant Pullman if the coins belonged to him?"

  "Yes." Special Agent Gonzalez gave a hard look toward the defense table. "As I started to say, no, I didn't ask Lieutenant Pullman if the coins were his. That's because when we read him his rights, Lieutenant Pullman stated that he desired a lawyer. As soon as Lieutenant Pullman expressed that wish, I was no longer able to question him without his lawyer being present."

  The members had no questions for Special Agent Gonzalez, who left with another glare toward the defense table.

  "The United States calls as its next witness, Captain Richard Hayes."

  Chapter Nine

  Captain Hayes gave off an air of command as he sat in the witness chair, seeming as if he were actually seated in the captain's chair on the bridge of the ship which would still be his for another twelve hours. Commander Carr approached the witness stand and spoke respectfully. "Sir, are you Captain Richard Hayes, United States Navy, currently commanding officer of the USS Michaelson?"

  "That's correct."

  "Was Lieutenant Pullman assigned to your ship?"

  "Yes, he was." Captain Hayes' voice stayed flat, betraying no emotion.

  "Captain, would you please summarize the events which led to Lieutenant Pullman's arrest on 20 August?"

  "Certainly." Hayes chewed his lip for a moment, apparently ordering his thoughts. "My ship returned to port here about noon on the first of August. As you may be aware, in the course of our last underway period we had the misfortune to observe SASAL warships firing upon the civilians who had illegally settled upon an asteroid. On the fourth of August, while off the ship on what was supposed to be a visit to fleet staff, I was instead met by agents of the Navy Criminal Investigation Service who informed me that they had evidence that one of the officers assigned to my ship was conducting espionage against the United States."