by Don Brown
The president applauded. The media and military guests followed suit. Then the president stepped in front of Secretary Lopez and lifted one of the pink and white medals from the black velvet box.
"Ladies first." The president smiled as he pinned the MSM on Diane's dress blue uniform. "Congratulations, Lieutenant." When the president shook her hand, goose bumps rose on the back of her neck.
The president pinned the medal on Zack, whispering, out of earshot of the press, but not out of Diane's, "They say your nickname is Silver Tongue." She saw Zack grin as the president shook his hand. "Congratulations, Lieutenant."
The president turned back to the podium. "Let's again show our appreciation for these fine naval officers." Another round of applause followed.
"Our time is short," the president said after a moment, "but I'll take a couple of questions."
"Mr. President, as you know, arguments are taking place at this very moment in the U.S. Supreme Court about whether the death penalty will be imposed against the defendants whom these officers prosecuted." Diane recognized the strident tone of the questioner's voice. It was ABC's Jack Williamson, seated in the front row, sporting his notorious black toupee. "How would you answer charges, Sir, that this ceremony was strategically timed to coincide with today's arguments to somehow influence the court's decision?"
"This ceremony was planned before the Supreme Court scheduled arguments on the execution, Jack." The president grasped the podium.
"It's purely coincidental." He chopped the air with his right hand. "And unless the justices are watching us on television, instead of listening to arguments, I doubt they'll even know about this ceremony." The president checked his watch. "I see that our time is up. Thank you all for coming."
"Mr. President . . ."
"Mr. President . . ."
The president smiled, waved, and ignoring the shouted questions, turned and motioned his guests to follow him back into the White House.
CHAPTER 8
Main gallery
United States Supreme Court
Maryland Avenue
Washington, D.C.
As she awaited her turn to stand before the world's most powerful court, the last thirty minutes seemed like an eternity to LCDR Wendy Poole, JAGC, USN. The courtroom was a hornet's nest, with the justices grilling Major Goldstein with a relentless barrage of questions about the government's conduct in the court-martial of United States v. Mohammed Olajuwon et al.
The court's collective thinking was hard to read based on the justices' questions. Some of the questions, at least those asked by the four liberals on the court, seemed sympathetic to the defendants.
The four conservative justices, those appointed by Republican presidents, were often antagonistic in their questioning of Major Goldstein. So much so that Wendy, though she didn't particularly care for Goldstein, almost felt sorry for him. Chief Justice Moore, a southern Democrat but with old-school conservative ideas on some issues, was the most difficult to read. He would probably cast the deciding vote that would seal the chaplains' fate.
The yellow light flickered on the counsel podium. Goldstein had three minutes. Wendy tuned out the spirited exchange between the justices and the marines and concentrated on her opening statement. The red light flashed, followed by "Thank you, Major," from Chief Justice Moore.
Goldstein took his folder, turned, and sat.
"The court will now hear from the government." Chief Justice Moore's voice rumbled through the courtroom like the growl of an angry grizzly bear. "Commander Poole?"
Wendy's knees trembled as she pushed back her chair, picked up her legal pad, and rose in front of the crowded gallery.
"Thank you, Your Honor." She smiled as she stepped to the podium, feigning an air of cool confidence. She placed her legal pad and brief on the lectern, then looked up. The eighteen eyes of the black-robed lords of American jurisprudence bored into her. She felt the weight of their silent stares.
"May it please the court." The first five words of her introduction came out just as rehearsed. "I am Lieutenant Commander Gwendolyn Poole, JAG Corps, United States Navy, and I represent the government in this case."
Chief Justice Moore leaned forward, scowling. "It sounds like the government built its case around a dirty agent, Commander!"
"Mr. Chief Justice, the whole purpose of inevitable discovery, a doctrine developed by this very court, is to balance the needs of justice, even if a mistake is made by a police officer. If an officer makes a mistake in the collection of some evidence, but if other evidence would have been discovered despite that mistake, justice requires that the rest of the evidence be admitted.
"A mistake?" Associate Justice Edna Winstead whipped off her glasses, managing to contort her face so she looked appalled. "Commander Poole, your Special Agent Kilnap of the Naval Criminal Investigative Service broke into a car parked on a navy base, without a warrant and after a federal magistrate specifically denied his request for a warrant. Isn't that so?"
"Justice Winstead, we don't condone Mr. Kilnap's actions. But the prosecution did not try to offer into evidence anything that was found in the car. The tape recordings in which the chaplains acknowledged their involvement in this plan to commit murder were made after and independent of the incident you are referring to."
Associate Justice Mona Shepard of Massachusetts, a staunch death penalty opponent, was the next to speak. "Kilnap was a dirty agent, wasn't he?"
Wendy eyed the frail little gray-haired woman. "Justice Shepard, I'm not qualified to evaluate Special Agent Kilnap's professionalism. He made one mistake in the case, and that was it. And as I say, we haven't offered into evidence anything found in the warrantless search of the car. Agent Kilnap did not make a mistake when he tape-recorded the chaplains' admissions of their involvement with the murder of the Israeli ambassador and several members of the naval service and the murder of innocent civilians during a San Diego church service."
"But a conviction is one thing." The court's most liberal justice whipped off her granny glasses. "An execution is quite another." Justice Shepard wiped the lenses of her glasses with a tissue, then pushed them back on her nose. "Don't you see a problem with an execution associated with dirty police work? Why shouldn't we just order this to be commuted to a life sentence? Would that not be a reasonable compromise?"
"With respect, Your Honor, no, this court should not order commutation to a life sentence for these terrorists masquerading as naval officers. Not if this court is satisfied that the subsequent evidence, that is, the tape recordings especially, would have been discovered in spite of the agent's illegal actions. It was this Supreme Court" -- Wendy chopped the air with her hand -- "that formulated the inevitable discovery exception in the 1984 case of Nix versus Williams. And in this case, the military judge found the illegal break did not assist Special Agent Kilnap in obtaining the taped confessions of the chaplains.
"Kilnap was planning to follow Aziz's car from the naval air station anyway. He did not need a warrant to tail the car. He followed Aziz into the Shoney's restaurant where Aziz met with one of the defendants. Kilnap did not need a warrant for that. And he taped the confession of Chaplain Reska in the restaurant, a public place, where there is no reasonable expectation of privacy. At that point, probable cause was generated and court orders were properly issued for all subsequent tape recordings of the chaplains' telephone lines. So the subsequent evidence was not tainted by Kilnap's illegal action, and therefore, the chaplains were convicted based upon legally acquired evidence."
"You really believe that?" Justice Shepard glowered down from on high, her elbows resting on the table, her hands steepled under her chin. "Do you really think that the illegal break-in did not give Kilnap an inherent advantage in leading him to gathering confessions? As I understand the record, Commander, Kilnap not only broke into Petty Officer Aziz's car, but also bugged it -- and in the course of bugging it, he overheard a mobile phone conversation between Aziz and the chaplain about meeting at Sho
ney's. Isn't that right?" Justice Shepard raised her left eyebrow.
She's boring in on my case's weakness.
"Yes, Justice Shepard, your memory is correct on that portion of the record. But -- "
"But" -- Shepard wagged her crooked index finger before Wendy could change the subject -- "isn't it true that Kilnap knew to go to Shon-ey's because he overheard the mobile phone conversation from the illegal bug he planted in the car? And without the tip about going to Shoney's, no other evidence would have been gathered, and we wouldn't be here. Sounds to me like the whole investigation was tainted from the illegal break-in of Aziz's car. In other words, your conviction was from the fruit of the poisonous tree, wasn't' it?" Another wag of the crooked finger.
Wendy took a deep breath. Shepard was the court's most feminist, fire-breathing liberal. Her response here could be pivotal to the government.
"That argument, the fruit of the poisonous tree argument, is the very argument that the defense counsel, Mr. Levinson, made during the court-martial, Justice Shepard." Wendy took a sip of ice water from a paper cup to slow the pace of Shepard's interrogation. "Captain Reeves, the military judge, carefully considered that, but he found based on other evidence that Kilnap planned to follow the car anyway. In other words, he believed the tape recordings would have been inevitably discovered" -- she made air quotation marks -- "following this court's decision in Nix versus Williams, and he rejected the defense argument. Judge Reeves had the right to make that finding, and absent an abuse of discretion, his decision must stand. Abuse of discretion would be impossible for the defense to argue because there was other evidence in the record for this case on which the judge based his decision."
"What other evidence?" Justice Shepard snapped.
"Special Agent Kilnap testified," Wendy quickly responded, "that he planned to follow Aziz's car out of the naval station parking lot with or without the recording and that he never let the car out of his sight as he tailed it. In other words, Kilnap didn't need the illegal conversation to follow Aziz to Shoney's. He was already tailing the suspect's car when the transmission device he planted picked up Aziz's voice and the conversation about Shoney's.
"Kilnap began his pursuit before hearing the information about the rendezvous point at Shoney's. The point is, Justice Shepard, Kilnap would have followed Petty Officer Aziz to Shoney's with or without the illegal bugging of Aziz's car. He would have gotten his evidence anyway.
That's why the inevitable discovery doctrine trumps the defense's fruit of the poisonous tree argument."
"But, Commander" -- another wave of the crooked finger -- "isn't believing Kilnap sort of like believing the fox who testified he wasn't planning to enter the henhouse?" A few snickers rose from the gallery.
"Your Honor, it's up to the trial judge to assess credibility, to accept or reject testimony. And while Kilnap's initial actions are not admirable, Judge Reeves found his testimony to be truthful. The defense had an opportunity to cross-examine on this point and was unable to contradict Kilnap's testimony."
"Commander" -- Wendy looked to her left and recognized the court's most conservative justice, Associate Justice Jack Miller of California -- "you've talked a lot about this court's decision in Williams versus Nix." Miller paused to toy with his handlebar moustache. "But what about Brady versus Maryland? And specifically our requirement in Brady that the prosecution reveal exculpatory evidence prior to trial. Did that happen in this court-martial?"
He's throwing me a softball. Thank you, Justice Miller.
"I'm glad you asked that, Justice Miller," Wendy said as the yellow three-minute warning light flashed on. Thank God. Stretch out this answer to keep Shepard off your back. "The navy prosecutor in this case, Lieutenant Zack Brewer, first discovered Mr. Kilnap's error. Lieutenant Brewer discovered the warrantless search after the trial began. But to his credit, Brewer immediately informed the court." She paused for a sip of water. "Judge Reeves stopped the trial and allowed the defendants to make motions to dismiss and for a mistrial. Judge Reeves heard the evidence and denied the motions. The defendants lost, and now they want to have their cake and eat it too."
Red light.
"Commander Poole, your time is up," Chief Justice Moore growled, "but because we ran over with Major Goldstein, in fairness to you, the court will give you one minute to wrap up your thoughts."
"Thank you, Mr. Chief Justice." Wendy took a deep breath. Her entanglement with Justice Shepard was over. "Mr. Chief Justice, distinguished associate justices, this court formulated the inevitable discovery doctrine back in 1984 to prevent miscarriages of justice. That doctrine was formulated in part to keep murderers seeking to hide behind technicalities in the law from walking the streets again."
Wendy's gaze swept from left to right. Her day before the United States Supreme Court was about to come to an end, and every justice, appointed over time by five different presidents, was focused solely on her.
"And this case, Your Honors, is about murder. Not just a single murder, but multiple murders within the armed services. Not just random acts of street violence, but calculated killing by radical Islamic terrorists, disguised as members of the naval service, encouraged by the calculated plotting of the defendants, who spread their distinguished brand of hatred under the offices of the United States Navy Chaplain Corps.
"Captain Reeves did not err in ruling that inevitable discovery applies in this case. Justice screams out that his ruling was correct. These defendants should be executed for their actions, and we urge this honorable court not to block those executions.
"Thank you."
"Thank you, Commander," the chief justice said in a milder voice. "We are in recess."
"All rise," cried the clerk of the Supreme Court.
CHAPTER 9
Council of Ishmael headquarters
Rub al-Khali Desert
Hussein al-Akhma sat alone in his office, a remote control in his hand, his crossed feet propped on his desk. He pressed the record button, then watched the live broadcast from Washington. A very attractive blond American woman in a U.S. Navy dress blue uniform walked down the steps of the United States Supreme Court Building. She wore a white naval officer's cap with a gold eagle and anchors, and as she stepped behind the microphones, the camera caught her sparkling smile and deep blue eyes. They reminded him of the pristine waters of Lake Zurich.
Why are the most beautiful women always on the enemy side?
He pointed the remote control at the television and pressed the volume button. The sound of her velvet-smooth voice came from the broadcast half a world away:
"We are pleased with our briefs and with our argument. Other than that, I'm not going to comment further. The decision is now in the hands of the Supreme Court. Thank you."
A woman of few words. A smile crawled across Hussein's face as the woman in the navy dress blues turned and walked away. When the image shifted to some talking head in the American studio, he rewound the tape to the image of Commander Poole, froze it -- and smiled. Like delectable, poisonous fruit.
The sound of three knocks came from outside his office door.
"Enter." Hussein turned off the television as a black-bereted member of his elite palace security force stepped in. The olive-skinned guard wore a thick black mustache and the standard Council of Ishmael security force uniform consisting of a sidearm, a drab-green uniform, and combat boots.
"Leader, Mr. Rahman is here," the guard said.
"Send him."
Hussein stood as Abdur Rahman stepped into the office.
"Leader," Abdur said affectionately, then stepped forward and planted kisses on each of Hussein's cheeks.
"The execution party is ready, Leader." Hussein sensed a lack of enthusiasm in Abdur's voice.
"You do not approve of what I am about to do, Abdur?"
"Leader, I approve of all that you do. But I believe Khalid meant no disrespect by his comments in the Council meeting."
"Khalid was a member of the Council of Ishm
ael!" Hussein slammed his fist on his desk. "To fulfill our vision of reclaiming the world of Allah, we must be of one accord. Even if he meant no disrespect, he allowed his tongue to run recklessly by calling into question the divinely inspired vision Allah has given me. Intentional or not, there must be unity."
Hussein ran his hand through his hair. "Do you not understand this, Abdur? Khalid must die." He snapped his fingers, and one of the black berets appeared with his white blouse and turban.
"Yes, Leader, I understand. But weaker members of the faith may at first have trouble accepting what you plan to destroy for the greater good."
"Precisely." Hussein slipped his arms into the white gown. "Khalid is weak. We cannot have weak brothers on this elite council. It is too dangerous for the common good." He slipped a white turban on his head. "Besides, I have not even yet given the final orders for the execution of Islamic Glory."
"It is as you say, Leader." Abdur bowed as Hussein walked from behind his desk.
"Let us witness the atonement. Only the spilling of blood can satisfy Allah's fury."
Hussein and Abdur left the building and stepped out into the blazing sun. Hussein halted, put a cigarette to his mouth, and snapped for a lighter. A security guard stepped forward.
He took three draws on the cigarette, then stamped it into the sand. Donning a pair of sunglasses, he motioned for Abdur and the guards to step with him out into the desert.
