Rule of Law

by Randy Singer

  “Sounds political to me,” Paige said.

  “Everything is political,” Marcano replied.

  Now Paige was getting somewhere. She and Wyatt both believed that the real reason Marcano had met with Philip Kilpatrick on that park bench was to create a video recording of the meeting that would keep the White House from disavowing knowledge later.

  “Didn’t you, when you became director of the CIA, take steps to permanently document White House approval of any controversial CIA programs?”

  “I don’t understand the question.”

  “Isn’t it true that you met with Philip Kilpatrick on a park bench in Washington, D.C., on the Thursday right before Operation Exodus?”

  “Yes.”

  “Was that location secure?”

  “It was a public place, but nobody overheard our conversation. We took pains to be careful.”

  “Did you have CIA agents secretly video that session?”

  Marcano stared at Paige for a moment. Then he looked over at Kyle Gates, prompting the lawyer to rise.

  “If the CIA did video that or any other meeting, those tapes would contain state secrets,” Gates said.

  “I’m not asking for any tapes right now,” Paige responded. “I just want to know if they exist.”

  Solberg took off her glasses and looked out into space for a moment. “The witness will answer the question,” she said.

  “It would not surprise me if there were videos of some of my meetings. I would have to check.”

  “In fact, a video was indeed made of your meeting with Kilpatrick before Operation Exodus, isn’t that correct?”

  Marcano hesitated. He couldn’t deny the existence of a video that had already been released to the media. “Somebody released a video. It wasn’t me.”

  “Do you have an audio recording of that meeting?”

  “I would have to check.”

  “That meeting is a central part of this lawsuit, and you don’t know if you have an audio recording of it?”

  “I said I would have to check.”

  “Then let me do the next best thing,” Paige said. “I’m going to play the video of that meeting and ask about some of the statements that were made.”

  This prompted another round of objections and a lengthy argument. Eventually Judge Solberg ruled that because the meeting took place in broad daylight and at an unsecured location, the state secrets objections would be overruled.

  Wellington controlled the video from his computer.

  “Is that you and Mr. Kilpatrick?” Paige asked, pointing to a monitor next to the witness stand. They were simultaneously streaming the same video to a monitor on Judge Solberg’s bench as well as one for the defense lawyers.

  Marcano admitted that it was.

  For the next several minutes, Paige played the video and grilled Marcano about the meeting. When did it occur? Why did he keep his hand over his mouth? Why were they meeting in such a public place?

  Her lip-reading experts had confirmed what the Patriot had told her: that Kilpatrick asked if the source had been compromised. She played the segment of the tape showing that question and glanced at Philip Kilpatrick, sitting at counsel table. “Is that what he said?” she asked. “He wanted to know if your source was compromised?”

  Marcano shook his head. “I don’t remember exactly what he said.”

  Paige ran another part of the tape. “Did he ask you right there about the level of confidence you still had in your source?”

  “Maybe. That would be a natural question to ask the day before an important mission.”

  “What did you tell him?”

  “Objection, state secrets,” Kyle Gates said.

  “As I ruled before, he can testify as to what he remembers about the conversation but should not reveal names of CIA assets in the field,” Solberg said.

  “I don’t remember exactly what I told him,” Marcano said defiantly.

  “Do you remember generally what you told him?”

  “I’m sure that I would have given him an honest assessment of what we knew. I would have told him that I had confidence in our sources.”

  “Why would you need a one-on-one meeting to tell him that? Why not just tell him that in the Situation Room with everybody else from the Security Council listening?”

  “Objection!” Gates called out. “Calls for speculation.”

  Solberg sustained the objection, but Paige knew she had made her point.

  She rolled another part of the tape. “Did he ask you right there if you had independent corroboration of what you were telling him?”

  “I don’t remember that question.”

  And so it went, Paige quizzing Marcano about the conversation and Marcano acting like he didn’t remember a thing. His denials rang hollow, and Paige could see that Solberg wasn’t buying it.

  “This is a secret meeting with the president’s chief of staff just one day before the U.S. was about to launch one of the most daring missions in SEAL history. That mission was totally dependent on CIA intelligence, and now you’re telling me you don’t remember anything about this meeting?”

  Marcano stared at Paige for a moment. “I’m a busy man,” he eventually said.

  Paige smirked at the answer and asked Wellington to shut down the video. She returned to her notes, ready to close it down.

  “What does the term eyewash mean in the CIA?”

  Marcano shot his lawyer a look, but Gates didn’t object. He would probably hear about it later.

  “That’s not a term I use.”

  “I didn’t say it was. But do you understand what it means?”

  “Yes, I know what it refers to.”

  “Then please tell the court.”

  Marcano sighed and took a sip of water. “The term is used primarily by journalists when they accuse the CIA of not being truthful with its own operatives.”

  “Didn’t the Senate Intelligence Committee and the CIA’s inspector general both conclude that leaders at CIA headquarters had routinely sent eyewash cables to agency operatives in places like Pakistan?”

  “A cable sent to a remote office will be read by every operative at that location. Sometimes the agency needs to conceal information even from some of its own field agents. To do so, it sends a general cable that is untrue and finds other ways to communicate the truth to particular agents.”

  “Didn’t the Senate Intelligence Committee report find that the CIA had lied to the White House and State Department—had eyewashed them, so to speak?”

  “That report is not accurate,” Marcano said stubbornly.

  “Is it the CIA’s position that it can lie to its own agents as well as the State Department and White House, all in the interest of national security?”

  “Objection!” Kyle Gates said.

  “Overruled. I would like to know the answer to that,” Judge Solberg said.

  Marcano shifted in his seat. “The safety and security of this country depend on the quality of our intelligence information,” he said, emphasizing each word. “It should not surprise you that obtaining reliable information sometimes requires misdirection. We are accountable to the president of the United States and ultimately to the American people. And those people are smart enough to know that intelligence gathering is not an undertaking for Boy Scouts and choirboys. Yes, we use misdirection and mischaracterizations and sometimes even outright lies to protect our agents in the war on terror. That is our job, Ms. Chambers, no matter how repulsive it might seem to you. And I will not apologize for it.”

  “Is that what you’re doing today?” Paige asked. “Eyewashing?”

  “Objection!” Gates said.

  But Marcano did not wait for the judge to rule. “I have testified truthfully under oath. I can’t help it if they are not the answers you were hoping to hear.”

  After the deposition, Philip Kilpatrick and John Marcano rode together in a black sedan to Washington, D.C. Kilpatrick spent most of his time on his cell phone or responding to
e-mails. Marcano was in a foul mood and spent his time pretending to read important CIA briefs. Though soundproof glass separated them from the driver, they spent little time talking about the case.

  Marcano was dropped off first at his home on the outskirts of Arlington. It was a large brick house with a circular driveway, illuminated at night with soft porch lights, lamps for the driveway, and walkway lights on the sidewalks.

  “You did a good job today,” Kilpatrick said.

  Marcano turned to him before getting out of the vehicle. “I won’t take the fall for you,” he said. “And I won’t take the fall for the president. Make sure she knows that.”

  “Nobody’s taking a fall on this,” Kilpatrick said.

  Without another word, Marcano gathered his briefcase and stepped out of the vehicle.

  Kilpatrick was on his cell phone before they got out of the driveway.

  “How’d it go?” the president asked.

  “It was a disaster.”

  54

  WASHINGTON, D.C.

  It was one thing to know that the parties of most presidents suffered significant defeats in midterm elections, but it was quite another to be in the middle of it. Yet now, with Congress out for the summer and the campaign season in full swing, the Democrats were looking at some serious losses.

  With Republicans controlling the House, the president’s domestic agenda had stalled. Gun control, income equality, regulation of banks, and tuition relief were all progressive causes that were dead on arrival. That left the president nibbling at immigration reform, tinkering with reducing entitlement programs, and trying to modify the criminal justice system so that minorities were not warehoused in prisons for minor drug offenses. It was a compromise legislative agenda that made the liberals mad and the conservatives furious. Not even two years into her term, and the far-right talk-show hosts were referring to Amanda Hamilton as “the Mouth,” a reference to her compelling oratory but lack of substantive accomplishments.

  And Philip Kilpatrick, for all his political finesse, felt powerless to change any of it.

  The one thing that had salvaged the first half of this term was Amanda’s surprisingly adept hand at foreign policy. She had repositioned the United States in the Mideast as a stronger ally of Israel and the main tormentor of Iran’s president. She had managed to stifle ISIS and stand up to Russia. And she was aggressively renegotiating America’s unfavorable trade deals.

  All in all, it was a mixed bag. After the president’s temporary approval bump from the assassination attempt, her approval rating had quickly dipped back under 50 percent and seemed destined to stay there.

  It was in this context that Philip Kilpatrick began obsessing over the Anderson case, playing out various scenarios and fretting about its lethal potential. Prior to the Memorial Day incident, Kilpatrick was fond of telling the president that “it’s always the bullet you don’t see that gets you.” He meant it in a symbolic sense and was smart enough not to use the saying anymore. But that didn’t make it any less true. All presidents had skeletons in their closets. Richard Nixon and the tapes. Bill Clinton and the blue dress. It was Kilpatrick’s job to make sure every skeleton in Amanda’s closet stayed safely in its place. And there was no greater risk than Anderson.

  On the campaign trail, for example, she had been speaking to a group of elementary school students, a classic photo op, when the case reared its ugly head. An adorable first grader with blonde curls and big puppy-dog eyes sweetly asked the president, “Why did you make the soldiers die?”

  The president got down on one knee and used her softest voice. “Oh, sweetie, I didn’t make the soldiers die. Our soldiers are brave men and women who love this country. I would do anything to keep them from dying.”

  It was a beautiful and touching response, but that didn’t matter. Republican PACs turned the little girl’s question into the campaign’s hottest attack commercial. Even in July, months before Election Day, the ads were everywhere. “Why did you make the soldiers die?” became a rallying cry for conservatives. There was talk that in November, the Democrats would lose additional seats in the House and maybe lose control of the Senate. That would make life more difficult in general but particularly when it came to judicial appointments.

  That’s why it didn’t surprise Philip when the call came early in the afternoon on Monday, July 16. He was in the Oval Office with the president and several other staffers when someone discreetly entered and handed him a slip of paper. Eighty-six-year-old Supreme Court Justice Patricia Ross-Braxton was on the line. Philip cleared the office of everyone but himself and the president. He called the White House operator and told her to put the call through.

  The conversation was short and gracious. Amanda thanked the justice for her more than twenty years of service. The timing was right. The Court was out for the summer, and the Democratic majority in the Senate could push through a successor. There had been questions lately about Ross-Braxton’s stamina and about some uncharacteristic comments she had made in informal social settings. Of course, none of that came up during the phone call. There was nothing but effusive praise and sincere thanks from President Hamilton.

  When she concluded the call, she looked at Philip Kilpatrick, and they both smiled.

  “It’s about time,” Kilpatrick said.

  Later that day, the president and Kilpatrick carved out thirty minutes to discuss the short list for the vacant slot. The list had been ready for twenty months. As a lawyer, the president desperately wanted to leave her own imprint on the Court. “It may be the only lasting impact I have,” she’d said once to Kilpatrick after Congress stopped yet another initiative.

  They sat at a conference table with résumés from the top five candidates spread out before them. They talked about credentials and potential land mines in the candidates’ backgrounds. They talked about issues before the Court. And not surprisingly, the president kept coming back to the same person: Attorney General Seth Wachsmann. “He’s already been vetted, and we know there’s nothing to hide,” Hamilton noted. “The man cannot be corrupted; he’s incredibly smart, and he’s a liberal who believes in law and order.”

  “I’d hate to lose him from the cabinet,” Kilpatrick said.

  “This position is way more important in the long run.” The president shuffled a few résumés, frowning at the others. “Plus, he’s got heart. We need justices who will look at cases with their heart as well as their head.”

  Kilpatrick appreciated the fact that the president was so loyal. She looked at things with the heart too. But Kilpatrick always tried to take emotions out of it. He calculated, one move at a time, playing it out on the chessboard—all of the options. He didn’t like where it led them with Wachsmann. “There is a downside,” he said.

  The president raised her eyebrows, a cue to continue.

  “As the former head of the Justice Department, he would be conflicted out if the Court takes up the Anderson case.”

  The president shrugged it off. “Not going to happen.”

  “Dylan Pierce thinks it will,” Kilpatrick said. “He thinks they’ll grant an emergency stay before my deposition. If they don’t and the district court is allowed to continue conducting depositions, it will be an unprecedented intrusion into our decision-making process. It’s always been the prerogative of the executive branch to conduct national security operations free from judicial second-guessing. Some scholars are saying this is the biggest judicial power grab since Marbury v. Madison. And if the Court doesn’t grant the stay and dismiss the case, it will be kicking around at least through the fall campaign.”

  He could tell he had the president’s attention. The thought of this case hanging around for another year was everyone’s worst nightmare.

  “It’s hard to tell how the justices would vote on a case like this,” Kilpatrick continued. “You can usually count on the conservatives to protect state secrets, but then you’ve got to mix in the political implications. Do the Republican appointees really want
to shut down a case that they think might be your Achilles’ heel?”

  “Who’s your pick?” the president asked.

  Kilpatrick pulled a résumé out of the stack that had not made the president’s top five. He slid it across the table. “Taj Deegan has been on the Virginia Supreme Court for four years. African American. Single mother of teenagers. Former prosecutor. GED instead of high school, worked her way through college while her mom helped with the kids. Attended law school at night while working for a private security company.”

  The president looked intrigued and started glancing through the bio the staffers had prepared.

  “She survived a courtroom shooting while prosecuting a Muslim accused of honor killings,” Kilpatrick said. He had done his homework. “Actually took a hit but was wearing a Kevlar vest. Cool story. Real Wild West stuff.”

  “Does she have enough experience?”

  “She’s young. But then, so are you.”

  This brought a smirk to the president’s face.

  “If you want to leave a legacy,” Kilpatrick argued, “you’ve got to take a chance with someone young. And think of the politics.”

  “Of course, the politics. With you, it’s always the politics.”

  Kilpatrick ignored the barb. She was right. To him, everything was political. “Deegan is law and order. She would be the first female African American appointee on the Court. And I think we would have a real ally in the war on terror. Can you imagine the Republicans trying to oppose her at the Senate confirmation hearings?”

  The president was warming to the idea, Kilpatrick could tell. But she still wasn’t completely sold.

  “She wouldn’t have a conflict on the state secrets issue,” Kilpatrick said. “And I think we could count on her, as a former hard-nosed prosecutor—” he held up a hand—“not that I’m stereotyping hard-nosed prosecutors, but I think we could count on her to uphold the state secrets defense.”

  The president took a few minutes to read the rest of Deegan’s bio, and Kilpatrick could almost see the wheels spinning in her head. He had pushed hard enough for now.