by Randy Singer
“Yes. I know. And I will take you to the person who can provide the evidence you need.”
Saleet chewed his qat a little before he continued. “You asked in your letter to talk to the relatives of victims who were killed in the drone strike that led to the sheep sacrifice by Admiral Towers. Do you remember that?”
“Of course.”
“You will get your wish. But first, there is a condition.”
There were always conditions. And now, so tantalizingly close to the truth, Wyatt was ready to agree to anything. “Which is?”
“I have now given you a preview of my story. A—what do you call it?”
“A proffer.”
“Indeed, I have given you enough so that you can decide. I need to know that in exchange for meeting this man who will make your case, you will act as my attorney upon your return. I need to know that you will do everything within your power to remove my name from the president’s list.”
Wyatt looked Saleet in the eye, reached out his hand, and shook on the matter.
“What is your retainer?” Saleet asked.
“How about a new set of bodyguards to escort me back to the Dubai airport when we’re finished?”
“I’ll tell the men to be more gentle,” Saleet promised. “They are only doing this because I told them that together we might be able to destroy President Hamilton. To be honest, Mr. Jackson, they have no love for Americans.”
“I’ve noticed,” said Wyatt.
83
WASHINGTON, D.C.
“This case presents a simple question: Can the president conspire for political purposes with her chief of staff and the CIA director to send our forces on a rescue mission knowing full well that they will die?”
Paige asked the question forcefully and paused for a breath. She had been warned that this would be an active bench and she should try to summarize her argument in the first minute or so before they started peppering her with questions. She never got that chance.
“If that’s the issue, how can you possibly prove your case without knowing what the president knew?” The question came from Justice Sikes, who was leaning forward and had drowned out a question by his older colleague, Justice Cooper from Texas. “And that would implicate all kinds of state secrets, would it not?”
“No, Justice Sikes, it wouldn’t. State secrets are limited to military or espionage secrets that, if divulged, would endanger the security of our country. The mission in question is now history. Divulging what the president knew going into the mission—as long as names of CIA operatives and specific engagement strategies are kept secret—would not endanger our country or help our enemies.”
The words were barely out of her mouth before the Beard asked his question again. This time he wasn’t going to let anyone speak over him. “It’s naive to think that you don’t have to get into the details to prove your case, Counsel. You’ll put on witnesses to say the president knew the plan was doomed. The defendants will say that’s not true. And the only way for the jury to figure who’s right is for them to know the precise intelligence information the president had and to know who provided that information so they can weigh the credibility of the sources. All of that information qualifies as state secrets.”
To Paige, that sounded more like an argument than a question. But she kept her composure, responding as if she and the Beard were best friends.
“That may be the case, Justice Cooper, or it may not be. The point is that we’ll never know unless this case is allowed to proceed. Judge Solberg was doing a good job of letting us take depositions without divulging state secrets or classified information. Once those depositions are completed, we may find there is no dispute about what the president knew and we don’t need to test the sources. Or we may be able to prove our case without government witnesses, thus negating the state secrets defense. We should at least be allowed to take enough discovery to find out.”
“And as soon as those depositions are taken, they get leaked to the press,” Justice Sikes interjected.
“Which we didn’t do,” Paige shot back. It was a cheap shot from the justice, and Sikes was starting to get under her skin.
“I guess that remains to be seen,” Sikes said, intent on having the last word.
Two justices chimed in at once and Justice Deegan, as the junior member of the Court, deferred. Justice Torres, the former senator from California who had served on the Senate Foreign Relations Committee, was a critical vote if Paige had any hope of winning the case.
“Doesn’t the result you want go directly contrary to our Reynolds decision?” she asked.
Reynolds was a 1953 case in which widows of civilians aboard an Air Force plane tried to get information about what made it crash. The Air Force claimed military secrets, and the case was not allowed to proceed.
“We think the procedure employed by Judge Solberg is consistent with Reynolds,” Paige explained. She and Wellington had carefully crafted this answer. They knew the Supreme Court didn’t like to overturn its own cases, especially ones more than fifty years old.
“In Reynolds, this Court said that it should treat state secrets like it treats a defendant’s assertion of the Fifth Amendment privilege in a civil proceeding. You don’t have to accept the privilege at face value; you can inquire into the circumstances and decide whether answering the question might tend to incriminate that person. That’s what Judge Solberg was doing here—inquiring into the circumstances.”
“But the trial court in Reynolds did not allow depositions like Judge Solberg did,” Torres responded.
Before Paige could answer, Chief Justice Leonard chimed in. It felt like questions were coming from every direction. “In Reynolds, the Court assumed from the circumstances that there was a reasonable danger the evidence would expose military matters of national security. Can’t we assume the same thing here?” he asked.
“I don’t think the Court should assume any such thing, because we already have the deposition of Director Marcano,” Paige said quickly, anxious to answer before another question popped up. “And Judge Solberg did a good job conducting that deposition so that we were able to get the information we needed without exposing state secrets. I think it’s obvious she can do the same with other depositions because Director Marcano’s was the trickiest one.”
“If I believe the reports from the New York Tribune,” Justice Sikes said caustically, making Paige pivot to the left to face him, “you’ve already received classified information that you’ve used in this case. And there is supposedly a grand jury looking into the matter. Are those reports true?”
The question stunned Paige. She knew that the specter of the grand jury proceedings would hang over her argument, but she didn’t expect to field a pointed question about it. She had taken the Fifth in the grand jury, but she certainly couldn’t do that now.
“It would be inappropriate for me to comment on that article, which, by the way, was written by the same reporter who leaked the Marcano deposition,” Paige said. She could feel her face turning red. “But I can assure you that we did nothing wrong.”
“Aren’t grand jury proceedings secret, anyway?” Justice Deegan asked from the far right end of the bench. Her question seemed to be directed at Sikes. “As a former prosecutor and trial court judge, I certainly agree that it would be inappropriate for counsel to comment on grand jury proceedings, no matter how badly you would like to do so.” Deegan shot a quick glance at Sikes, and he scowled back.
The exchange emboldened Paige, not just because she had an ally on the bench but also because Deegan was likely the swing vote.
“Precisely,” Paige said. “The Tribune article seemed insidiously timed to cast doubt over today’s argument. If anything, Justice Sikes, that article makes it clear that the source of information for the reporter who leaked the Marcano deposition was not anyone on the plaintiff’s team.”
It was a high point of her argument, one she would take pride in later. A chance to put the loquacious Sik
es in his place was rare for even experienced Supreme Court practitioners, much less someone as inexperienced as Paige.
Her low point came about five minutes later, when Justice Augustini asked a question and for some reason Paige slipped and addressed her as Justice Torres. This brought an awkward smile from the justices and an immediate apology from Paige. But Augustini deflected it graciously: “I’ve been called a lot worse.” Her comment broke the tension in the courtroom and brought a laugh from the gallery far out of proportion to the humor of the statement.
Paige’s time flew by, and ultimately her preparation paid off. She probably hadn’t changed any minds during her time at the podium, but she had held her own. With the exception of the slipup in names, she had acted like someone who had been there before. The SEAL team members in the front two rows of the gallery would be proud.
When the white light came on, Paige fielded two more questions and then launched into her final arguments. “Justice Torres mentioned the Reynolds case earlier. But when Reynolds was decided, the CIA did not have drones and Special Forces teams killing thousands of enemy combatants. Our military is accountable not just to the president but also to Congress, who alone has the power to declare war. But the CIA and all of its firepower are under the direct control of the president and no one else.”
They were letting her go, and Paige took full advantage of it. “The office of president has more power today than it has ever had in the history of the republic. But one thing has not changed since Reynolds; indeed, one thing has not changed since the founding of our nation. There are checks and balances in the Constitution. And the job of this Court is to ensure that everyone in our country complies with the law—from the president to the poorest beggar on the streets of the capital. Equal justice under law—isn’t that what it says on this very building?”
Paige paused and caught her breath. She knew the red light would soon stop her midsentence, and she wanted to finish strong. She and Wellington had spent hours wordsmithing her final plea. To her surprise, the justices seemed content to hold their questions and let her deliver it. The conservatives leaned back and gave her skeptical looks. The others were clearly engaged.
“As Abraham Lincoln once noted, this nation will never be destroyed by outside forces. He said, ‘All the armies of Europe, Asia, and Africa combined could not by force take a drink from the Ohio or make a track on the Blue Ridge.’ But Lincoln also warned, ‘If danger ever reach us, it must spring up amongst us. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time or die by suicide.’”
Paige took one last glance at the Court, surveying the members from left to right. The red light came on, but she ignored it. “To place the president and her cabinet above the law is suicidal. We urge this Court to reject that approach and affirm Judge Solberg.”
84
YEMEN
Wyatt rode blindfolded in the backseat between the two guards he had dubbed Larry and Curly. Moe was driving, and Saleet Zafar rode shotgun. Wyatt’s captors had switched vehicles; they were now in an old Land Rover with much more room. Wyatt was not handcuffed, and as far as he knew, nobody was pointing a gun at him. They had started late in the afternoon, and Saleet said they would be arriving at their destination right around dusk.
The ride was bumpy and the seat uncomfortable. The springs and shocks in the SUV had long ago deteriorated, and every jolt reminded Wyatt that his ribs had not yet recovered.
But he wasn’t complaining. He had asked to go to the site where the drone missile had killed innocent civilians who were not even aligned with the Houthis, the site where a photo had been taken of Admiral Towers sacrificing a lamb. As they rode, Saleet and Wyatt talked in English, raising their voices to be heard over the wind blowing in the windows.
“In our culture, sacrificing sheep is asking for forgiveness,” Saleet explained. He told Wyatt that the parents of the young men and women who were killed by the drone strike had met with Admiral Towers. The admiral told them the strike had been a terrible mistake and that his heart grieved for them. He offered reparations to the families, though he acknowledged that no amount of money could make things right. The fathers said that they would not keep anything in their hearts against the American soldiers, even though they had hated them since the moment of the drone strike. One of the fathers, through a translator, told Admiral Towers that he had planned to be a suicide bomber until the sacrifice was made.
“But unknown to Admiral Towers, there was another father who was not there on that day. His only daughter, annihilated by the drone strike, had been twenty-two years old and pregnant at the time. Her father swore to take his revenge on America, and you will be meeting him in just a few hours.”
This was more than even Wyatt had expected. “Is it safe to do that?”
“Safety is a relative thing, my friend,” Saleet said. “Allah’s will must be done. But this man has the same interest in keeping you alive that the rest of us do. You are the one who will tell our story. You are the one who will expose the American president and her advisers who caused such great heartache. If we harm you, we would destroy any chance of punishing the ones responsible for such atrocities.”
Wyatt had instinctively understood this to be the case, but it was still a little troubling to hear it stated so bluntly. “Is this man now working with the Houthis?” Wyatt asked.
“I should let him answer that,” Saleet said.
They hit a major pothole, bouncing Wyatt around, and he cursed loudly.
The guards started arguing in Arabic, and for a moment, Saleet joined them. He then switched to English for Wyatt’s sake.
“These men guarding us are with the al Islah party, composed primarily of Yemen’s Muslim Brotherhood,” Saleet explained. “They are sworn enemies of the Houthis and at times work with al Qaeda in the Arabian Peninsula. They are doing this only as a personal favor to me because they know that you are the only hope to keep me alive.”
“Are you working with al Qaeda?” Wyatt asked. The tribal alliances in Yemen were confusing, but there was nothing ambiguous about al Qaeda.
“I do not work with anyone, Mr. Jackson. I preach what Allah tells me to preach. Al Qaeda would like me to continue preaching. In that respect only, our interests are aligned. But I have never recruited for al Qaeda or tried to justify their terrorism or suicide bombings.”
Over the years, Wyatt had learned not to judge his clients. If they paid the retainer, he was their man. But this one would not be easy. Even he understood that anyone aligned with al Qaeda was an enemy of the United States. He suddenly felt the urge for a smoke. “Ask these guys what they did with my cigars,” he said.
Saleet spoke to the men in Arabic. Then, to Wyatt: “They said they kept them as payment. But they are happy to share some of their qat.”
“I’ll pass.”
They rode in silence for a few minutes before Saleet picked up where he left off. “The man you will meet in a few hours swore revenge on the Americans. He found a way to connect with the CIA and began providing valuable information. He played the role of informant for nearly eighteen months, waiting and praying for the right opportunity. When Cameron Holloman and Prince Abdulaziz were captured, he provided the Americans with information on where they were being held and the layout of Sana’a Central Prison. But he also informed the Houthis that the Americans were planning a rescue operation.”
It took Wyatt a second to digest this last piece of information. If Saleet was telling the truth, Wyatt was about to meet the double agent who had betrayed the CIA and caused the death of the American SEALs.
“What’s his name?” Wyatt asked.
“Mokhtar al-Bakri. The Americans called him Pinocchio.”
“Why haven’t the Americans killed him?”
At this, Saleet laughed. “For the same reason they have not killed me. They have not yet found him.”
“Why is he willing to meet with me?”
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br /> “Because he wants the world to know that he has exacted revenge for his daughter.”
Wyatt thought about this. “And he knows that I will tell the world as part of my case.”
“Precisely,” Saleet said.
The whole thing was starting to make sense now. Perhaps the CIA had tapped Holloman’s phone or had been illegally monitoring his e-mail. However they did it, they had learned that Holloman had met with the Houthi leaders. When the CIA killed them several days later, other Houthis believed Holloman had been working with the CIA, so they arrested him and sentenced him to death. Then this man nicknamed Pinocchio, who had been building credibility with the Americans, told the CIA where Holloman was being held and then double-crossed the Americans by telling the Houthis that the Special Forces were on their way.
But it still left one huge question. “Did the CIA or Director Marcano know that Pinocchio was going to betray the mission? Because if they didn’t, our entire case falls apart.”
“I realize that, Mr. Jackson,” Saleet said. “And I would like for you to hear that straight from the lips of al-Bakri himself. I will translate for you, and if he has no objection, I will videotape what he says on my phone.”
For once, Wyatt was out of questions that his host could answer. He sat back and tried to relax, getting jostled about by the guards on both sides. If al-Bakri provided the testimony that Saleet believed he would, Wyatt would have to find a way to preserve it and get it in front of Judge Solberg.
But even though he had personally filed the lawsuit and traveled halfway around the world to locate witnesses, Wyatt still found the whole thing hard to believe. Did Marcano and the president really know that al-Bakri was going to betray the American mission? And were they so coldhearted that they would order the men to go forward anyway, knowing that they were sending them to their death?
