Treason

by Don Brown

  “The court notes several articles, editorials, and commentaries in this morning’s papers criticizing Lieutenant Brewer for disclosing this information yesterday morning. Yet Lieutenant Brower did exactly what he was supposed to do, under military regulations and under law, in bringing this matter to the court’s attention, and the court commends him for it.”

  Zack felt Diane’s foot nudge his.

  Reeves stopped for a swig of water.

  “Unfortunately, this brings us to the actions of NCIS Special Agent Harry Kilnap.”

  Zack braced himself.

  “It is my duty to first determine whether Special Agent Kilnap’s actions in placing a certain listening device in the car of the late Petty Officer Sulayman al-Aziz were legal or proper.

  “On a military installation, such as the Oceana Naval Air Station, a base commander, upon a showing of probable cause, may issue what is known in the military as a ‘search authorization.’ This is the military equivalent of what is referred to in the civilian legal system as a search warrant.

  “For a search authorization to be issued, however, military law enforcement officials or members of a command must show probable cause to believe there has been a violation of the Uniform Code of Military Justice.

  “I find that in this case, no probable cause existed at the time to believe a crime had been committed, and I note that a civilian federal magistrate in Norfolk, Virginia, also failed to find probable cause just days earlier based on the same factual presentation at the time.

  “I find, therefore, that Mr. Kilnap’s search of the car of Petty Officer al-Aziz was illegal, in violation of the Fourth Amendment of the United States Constitution and of military law.”

  Zack bowed his head slightly. Jesus, please help me.

  “If the defense were making a motion to suppress the tape recording from inside al-Aziz’s vehicle, this court would allow that motion and suppress that evidence. This is not the motion before the court, however.

  “The defense claims the tainted search should extend to other evidence in the case and should lead to the exclusion of other evidence, including all other tape recordings in which all three of the defendants allegedly make statements which the government has called incriminating.

  “The government argues that Kilnap’s illegal search does not contaminate other subsequent evidence because of inevitable discovery.

  “This concept of ‘inevitable discovery’ is recognized Rule 311(b)(2) of the Military Rules of Evidence, which is based on the Supreme Court’s recognition of the ‘inevitable discovery exception’ in the landmark case of Nix versus Williams, a 1984 Supreme Court case.

  “In this case, I must determine whether the subsequent evidence, especially the tape recordings, was discovered not because of, but rather in spite of, the illegal search of the car.”

  Reeves paused and took a sip of water.

  I don’t mean to put pressure on you, son . . .

  Zack’s mind raced with what would follow if this case was thrown out. His focus was not on what winning meant for his future political career. Neither did it have anything to do with beating the world’s greatest attorney—and the publicity it would bring him.

  It had to do with justice. It had to do with his nation’s security. Images of 9/11 filled his mind . . . and the horror of what might come if terrorists, such as these sitting in the courtroom, were allowed to continue their infiltration of the military.

  Reeves put the water glass down. “The limited evidence before the court at this point is Special Agent Kilnap’s testimony, that he kept alAziz’s car in view the whole time he was following, and the evidence of geographic proximity between the base and the restaurant. The court takes judicial notice that the physical distance between the main gate entrance of the Oceana Naval Air Station and the Shoney’s restaurant in question is a distance of approximately 1.8 miles.”

  . . . but we cannot lose this one . . .

  “The court is convinced the greater the distance between these two points, the less likely Special Agent Kilnap could have maintained visual surveillance, and vice versa.”

  . . . understand?

  “The court finds that because of the relatively short distance between the main gate of the base . . .”

  Yes! Zack resisted the urge to punch the air.

  “. . . and the entrance to the Shoney’s parking lot, and because the route requires very few turns, it would be a fairly easy task for an experienced law enforcement officer to follow a vehicle a short distance under normal traffic conditions and maintain visual contact the entire time.”

  Thank you, Lord.

  A scowl crawled across Levinson’s face.

  “And while the court notes that it would otherwise have credibility problems with certain aspects of Mr. Kilnap’s testimony, the court does find that portion of his testimony—that he followed the al-Aziz car from the main gate of the base to the Shoney’s parking lot—to be credible.”

  Another nudge from Diane’s foot touched his, and from the corner of his eye, he caught her beautiful smile.

  “Having found, therefore, that Kilnap followed al-Aziz the entire distance from the Oceana Naval Air Station to the Shoney’s parking lot on Dam Neck Road in Virginia Beach; and having found that he maintained eye contact with it the entire time, I find the electronically intercepted tape recording of the conversation between Petty Officer al-Aziz and Commander Reska inside the Shoney’s restaurant occurred in spite of and not because of the illegal bugging of al-Aziz’s car.

  “The court finds all tape recordings offered by the government in its case-in-chief fall within the inevitable discovery exception to the exclusionary rule, and the defense motion is denied.”

  Amen.

  “The court will take a fifteen-minute recess.”

  “All rise.”

  The Oval Office

  The White House

  Washington, D.C.

  Thirty minutes later

  The president of the United States stood in front of his desk congratulating fifteen smiling finalists of the National Spelling Bee, this year sponsored by the Smithsonian Institution.

  The White House chief of staff stepped to the doorway and signaled him. “Mr. President, could I see you for a moment?”

  “Excuse me, ladies and gentlemen.” The president gave the finalists a smile, then walked into the anteroom just outside the Oval Office.

  “What’s up, Wally?”

  “Good news from San Diego, sir. Captain Reeves just denied the defense motion to dismiss.”

  “Great. What’s next?”

  “Levinson’s just announced that he’s resting his case without putting on evidence. He must think he can win based on his argument alone. Closing arguments start in about fifteen minutes.”

  “Wally, have someone take these kids on a tour or something. See if the first lady is available to show them around. Then clear my schedule for the next hour or so. I’ve got to see this.”

  “Yes, Mr. President.”

  CHAPTER 61

  Navy-Marine Corps Trial Judiciary

  Building 1

  32nd Street Naval Station

  San Diego

  Day 3, 1000 hours (PST)

  This wasn’t Diane’s show anymore. The prosecution dodged a bullet when Judge Reeves bought Zack’s argument and denied the defense motion to dismiss. But was the damage too great? Levinson, even though he didn’t get the case thrown out, had pounded Kilnap, their star witness, relentlessly.

  Now the case was in Zack Brewer’s hands. Everything depended on his closing argument.

  She glanced to her right. Zack was deep in thought, scribbling notes on a legal pad. The raw strength evident in his profile took her breath away, his jaw line, the high cheekbone, the crisp sweep of hair above his forehead. She forced herself to turn her eyes, and her thoughts, away from him. But in the split second before she did, Zack glanced up, and their eyes locked. He grinned and winked, then looked down at the legal pad aga
in. And her heart skipped a beat.

  “All rise.”

  Zack dropped the pad on their table and stood at attention. She joined him. At the defense table, Levinson rose.

  “Are counsel ready for closing argument?”

  “The government is ready, Your Honor.” Zack’s tone exuded confidence.

  “The defense is ready,” Levinson said with a hint of arrogance.

  “Very well. Bailiff, summon the members.”

  The weight of the case was now on Zack’s shoulders, not hers. Yet her stomach twisted tighter than it had two days ago, while making the most important opening statement in JAG Corps history.

  “The record should reflect that the members are now in place,” Captain Reeves said, then turned to the jury. “Mr. President, Ladies and Gentlemen, we’ve reached that point in the court-martial where both parties have rested their cases and are ready for closing arguments. Remember, the closing argument is not evidence, but rather is the opinion of the attorneys as to how the evidence was presented, and how you should act based upon that evidence. In other words, closing arguments are the last and best opportunity for these attorneys to advocate their respective positions to you. The evidence, however, is what you have heard and seen from the witness stand during these last few days.”

  Reeves took a swig of water and then turned his gaze to the counsel. “Counsel, before we proceed, does either party have anything else for the court’s consideration?”

  Zack stood. “Nothing from the government, Your Honor.”

  “Nothing from the defense,” Levinson said without standing. “The defense is ready for argument.”

  “Very well. The members are with the defense.”

  “Mr. Levinson?”

  Diane felt her heart pounding as the famous defense counsel rose to his feet. Levinson pulled down the lapels of his gray suit and walked slowly to the banister separating the jury box from the well of the courtroom.

  “Mr. President.” Levinson made eye contact with the senior officers, then swept his gaze across the other members. “Distinguished members of this court-martial.” He paused again. “First, let me say that the sympathies of my clients, as imams of the peaceful religion of Islam, are with all those who lost their lives.” Levinson was now in the center of the banister, about ten feet from the railing, holding his palms up and speaking quietly. His emotion-laden voice was about to crack.

  “To the families of Commander Latcher, to the families of the Israeli ambassador, and to those who lost their lives in the unfortunate and inexcusable act of terrorism at the church here in San Diego, my clients wish to impart upon them sympathy, and peace, and love, and mercy.”

  Levinson held his outstretched palm toward the three Chaplain Corps officers, all dressed in white uniforms with black and gold shoulder boards. He gave them an affectionate look as if he were their greatest admirer. “Look at my clients.” He pulled a handkerchief from his pocket.

  “Men of peace.” He dabbed the corner of his eye.

  “Men of the cloth.

  “Maybe not of the same religion as you or I, but nonetheless, from a great religion of peace.

  “All religions—whether Christianity, Judaism, or Islam—speak of justice. And in this case, justice cries out for the defense, ladies and gentlemen.

  “Justice screams that two wrongs don’t make a right. The government, feeling the need to lash out at somebody in this case, and with the real killers all dead, accuses my clients only because they are ministers of the same faith practiced by the real killers.

  “The government’s case began as a house of cards. Oh, it was a nicelooking house of cards. Fresh out of the box. A cardboard pyramid propped on the mountaintop by two dynamic and vibrant young prosecutors.” He waved his hand grandly toward Zack and Diane. “But do not, I implore you, do not confuse the attractive appearance of this dynamic young prosecution team with the very poor quality of the government’s evidence.

  “I remind each of you, ladies and gentlemen, not only of your sacred oath as naval officers, but of the sacred promise you made during jury selection, the promise I asked each and every one of you to make about reasonable doubt.”

  He paused again, dramatically, his eyes searching those of the jury. “I asked you during the jury selection process—the process we call voir dire—if the government failed to prove each and every element of its case beyond a reasonable doubt, I asked if you would return a verdict of not guilty.

  “And each and every one of you raised your hand in response to my question, promising me that you would.”

  Diane saw a few nods from the members.

  “Now the rubber meets the road. Either the government has proven its case—beyond a reasonable doubt—or it has failed.

  “And even if you believe my clients did something improper, but you are not convinced of it beyond a reasonable doubt, the judge will tell you that you must return with a verdict of not guilty.” Levinson paused at the center of the banister, again making eye contact with every member.

  “I submit to you, ladies and gentlemen, that the government has failed, and it has failed miserably.

  “Let us review why this is so.

  “I ask you.” Levinson’s voice grew louder. “Where are the real killers responsible for these crimes? Where is Petty Officer Anthony Neptune, the terrorist who attacked innocent churchgoers?” He raised his palms. “Where is Staff Sergeant Nasser Saidi, the deranged United States Marine who shot the Israeli ambassador?

  “I’ll tell you where they are. Dead and gone.” He jabbed the air with one finger for emphasis. “That’s where they are. But they are the criminals responsible for these murders, not my clients”—he walked behind the defendants and rested his hands on Olajuwon and Reska’s shoulders—“not your fellow officers.

  “And who really planted that bomb in Commander Latcher’s aircraft?” Levinson was now walking back toward the banister rail. “The government claims it was Petty Officer Sulayman al-Aziz. Obviously, it must have been al-Aziz, because he was a Muslim.” Levinson delivered this line with a sarcastic tone. “And Commander Reska must be guilty because he met al-Aziz in a Shoney’s.” His voice was laced with sarcasm. “And Reska is, of course, Muslim.

  “But I ask you this. Where is al-Aziz? The government says he is dead. Then where is the body? In the Atlantic, they say. But how do we really know that? The Coast Guard hasn’t fished a body out of the ocean, has it? How do we really know that al-Aziz isn’t AWOL? How do we know he hasn’t high-tailed it to Mexico to avoid this court-martial?

  “Al-Aziz must have planted the bomb, the government thinks, because he is a Muslim, and all Muslims are killers, aren’t they? All Muslims drive airplanes into skyscrapers. And al-Aziz is a Muslim who happens to work around airplanes.

  “Case closed.

  “Right?”

  Only the tick-tock of the nautical clock hanging over the judge’s bench punctuated his perfectly timed silence.

  “Wrong.

  “Even if al-Aziz planted the bomb, I can guarantee you one thing: Commander Reska did not.” Levinson turned and pointed to Reska. “This peaceful man of the cloth may be an expert in his religion, but he knows nothing of airplanes, and he knows nothing about bombs.

  “Guilt by association. That’s what the government’s flimsy house of cards is built on.

  “The government has no killers. The killers are either dead or missing. So what do they have? Tape recordings. Ambiguous tape recordings with no admissions of guilt and with uncertainty even about whose voices are on them.”

  Levinson stepped to the counsel table and took a sip of water. “Let’s start with the infamous Shoney’s conversation between Lieutenant Commander Reska and our missing man, Petty Officer al-Aziz.

  “The government wants you to believe that this is their so-called ‘smoking gun.’ But when you get back to the jury room for deliberations, I challenge you to listen to that tape. Listen repeatedly, if you must. Will you hear anyone say that C
ommander Reska ordered or suggested to alAziz that he plant a bomb?

  “No.

  “What is it, exactly, that Lieutenant Brewer”—Levinson turned and pointed to Zack—“will harp on when he stands before you in a few minutes?” He looked back at the members. “Language taken out of context.

  That’s what.

  “Listen carefully to the words they attribute to Reska.” He stepped to his table and picked up his notes. “‘You have destroyed an instrument of war that would have been used against many of our Arab brothers.’

  “Think carefully about this statement.” Levinson gently squeezed his chin between his thumb and his forefinger as if in deep thought. “Assume, for the moment, this is actually Commander Reska’s voice making this statement—something we are not certain of, by the way.

  But if so, does Reska say anything about bombing an F/A-18? Does he define ‘instrument of war’?”

  “No.

  “The phrase ‘instrument of war’ could mean anything. It could mean a rifle, a shotgun, or a cannon. It could mean propaganda.” Levinson paused, lowering his voice to nearly a whisper. “It could even mean—that’s right—a rogue missile platform used by terrorists in the Middle East.”

  Another pause.

  “We heard the government’s own witnesses, members of al-Aziz’s squadron, testify that last year, as part of Operation Vigilant Freedom, the squadron was awarded a unit commendation. That award was given when Commander Latcher’s plane, a plane al-Aziz worked on, swooped low over the Syrian Mountains and attacked a missile platform that had been used not only against Israel, but against moderate Arab political forces in the area.

  “And this, I submit to you, is the instrument of war referred to. And this fact alone should give you more than a reasonable doubt about what the statement means.

  “And speaking of reasonable doubt, how can we convict these officers, and possibly subject them to the death penalty, when the government’s star witness is none other than Special Agent Harry Kilnap?

  “Think about it, ladies and gentlemen. Harry Kilnap, secret agent extraordinaire”—his tone was heavily sarcastic—“marches in here the first time he testifies, and gives a by-the-book rendition of the facts. Remember what he said? That he conducted visual and electronic surveillance on the person of the defendant?