Code 13 (6 page)

2. While the basic political elements of the project have been
disseminated to the public, the specific details, for which we are requesting a legal opinion, remain top secret.

3. Included also within the top-secret elements of the project are so-called surveillance areas, coastal regions within 100 miles of the seacoast of all the United States, within the area of the so-called Fourth Amendment–Free Zone, otherwise known as the Constitution-Free Zone.

4. The plan for joint implementation with the Department of Homeland Security remains top secret at this point, as the public has only been aware of a potential “Navy Drone” contract. However, your legal opinion is sought as to the constitutional and statutory permissiveness of joint implementation of this program with the Department of Homeland Security, including commentary on the following issues:

a) The Constitution-Free Zone, in which the federal government has claimed Fourth Amendment exclusion, includes the following:

• Currently, two-thirds of the United States' population lives within this Constitution-Free (or Constitution-Lite) Zone. That's 197.4 million people who live within 100 miles of the U.S. land and coastal borders.

• Additionally, nine of the top ten largest metropolitan areas as determined by the 2010 census fall within the Constitution-Free Zone. (The only exception is #9, Dallas–Fort Worth.)

• Some states lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.

b) The Secretary of Defense has selected the U.S. Navy as the armed service to enforce Project Blue Jay, later to be renamed Operation Blue Jay, under which over 100,000 drones would be manufactured and placed into service by the
defense contractor, AirFlite, for monitoring against terrorist activities in the Constitution-Free Zone.

c) Under the proposed arrangement, the U.S. Navy shall serve in charge of operational command of Project Blue Jay.

d) However, an interagency agreement has been reached between the U.S. Navy and the Department of Homeland Security and is incorporated into the proposed legislation, whereby DHS will assume subordinate command and control of all U.S. Navy drones operating over U.S. soil and, in particular, operating over the aforesaid 100-mile Constitution-Free Zone.

e) The U.S. Navy, however, will operate drones over domestic and international waters, conducting surveillance and interception of ships and aircrafts that may be hostile to the United States.

f) The contract is expected to draw political opposition from various Tea Party groups and civil liberties groups, such as the ACLU, which has already opposed the establishment of the Constitution-Free Zone as set forth above.

g) Legal authority for the Constitution-Free Zone is established at § 287 (a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 USC § 1357 (a) (3), which provides for warrantless searches of automobiles and other conveyances “within a reasonable distance from any external boundary of the United States,” as authorized by regulations promulgated by the Attorney General. The Attorney General's regulation, 8 CFR § 287.1, defines “reasonable distance” as “within 100 air miles from any external boundary of the United States.”

5. You have been requested to generate a legal opinion, if legally defensible, for the Secretary of the Navy, to be forwarded to the Secretary of Defense, to deal with the anticipated objections from various Tea Party groups and civil liberties groups, like the ACLU, that will claim that the Fourth Amendment and
the constitutional doctrine of
posse comitatus
would prevent implementation of Project Blue Jay.

6. In particular, you are to focus upon the legality of the proposed joint-cooperative agreement between the Navy and DHS, and whether overall Navy command and control over the project violates
posse comitatus
at times when DHS is operating Navy drones over domestic U.S. soil.

7. Note that the DOD has selected the Navy over the Air Force because of its coastal emphasis, as it was felt that anticipated arguments would have greater effect against the Air Force and Army than the U.S. Navy.

8. The public purpose of Operation Blue Jay will be to prevent the infiltration of terror groups into the United States by intercepting such groups attempting to enter through coastal regions, and to track terror activity occurring within the coastal border areas of the United States and, in particular, the Constitution-Free Zone.

9. Please note that your opinion may serve as the legal basis for final approval of the contract to AirFlite, pending clearance of legal issues addressed herein, and further pending congressional approval.

10. In your analysis, bear in mind that approval of this contract is of utmost importance to the Department of the Navy.

11. With these considerations, you are directed to have a legal position paper prepared to deliver to CDR Pete Fagan, JAGC, USN, SJA to SECNAV, no later than 72 hours from the date-time stamp of this directive.

Respectfully,
Hon. H. Lawrence Anderson
Secretary

“Great,” P.J. mumbled to himself. He put the memo back into the envelope and laid it on his desk.

SECNAV's ordering me to come up with a legal position to justify awarding a contract of who-knows-how-many billions to a big-time defense
contractor, and they want me to find legal justification for it, whether or not there is any legal justification.

P.J. crossed his arms and thought. He didn't like the sound, smell, or feel of this.

“Are you okay?” He felt Victoria's hand on his shoulder and whiffed the aroma of her pleasant perfume.

He whirled around in his chair, picked up the envelope, and handed it to her. “Take a look at this.”

She removed the document from the envelope and stood there reading it. While she did, his thoughts turned to her, not as a fellow officer but as a woman.

He hadn't been interested in anyone since Caroline. But Victoria?

Lieutenant Victoria Fladager was proof-positive of the dangers of mixed-gender work environments in the military. He didn't want to relinquish the idea of being with Caroline again someday. He wasn't ready for an interest in anyone else. Not now, anyway. At least that's what he told himself.

But deep down he felt himself beginning to develop an interest in Victoria. And he didn't want to develop an interest.

He'd never dated a redhead. But the senior lieutenant standing by his cubicle, in her summer dress white uniform skirt, with her shoulder-length hair up in a bun, had become a distraction he did not need.

Why did she have to possess the delectable combination of an irresistible personality, a brilliant mind, red-hot looks to match her red hair, and a top-secret clearance?

Watching her stand there, flipping the pages of the document that had him so torn up, invoked a sense of delectable guilt.

Sure, he nearly asked Caroline to marry him. But it wasn't meant to be. So why the guilt about this attraction? After all, Caroline wasn't here. She remained in San Diego, for the time being, and would probably be ordered overseas. What was the point?

“Wow.” Victoria's eyes widened. “Looks like a huge contract depends on your opinion.” She handed the memo back to him. “What are you going to do?”

“What do you think I should do?”

She smiled.

Those dimples.

“Well, it's not like you've been ordered to reach one conclusion or the other. Right?”

“Is that the way you read it?”

She moved closer to his chair. “May I see it again?”

“Sure.”

She perused the document, more quickly this time. “Well, the directive says you're requested to provide a legal opinion, if legally defensible.”

“So you think the phrase ‘legally defensible' gives me some leeway?”

“Looks that way to me. Don't you think?”

“Sure. The directive pays lip service to the phrase ‘if legally defensible,' but then it's got this not-so-cryptic suggestion that makes it seem like the Secretary wants a rubber-stamp legal review.”

“And they want this in seventy-two hours?”

“Can you believe it?” The knots returned to his stomach. He felt a strange sense of comfort that Victoria was there. For some reason, she was like a calming influence in the midst of a brewing storm. “Hey, what are you doing tonight?”

Why did I just ask that?

“Why?” Her face lit with a tantalizing smile, sending his heart into an embarrassing thump-fest. “What did you have in mind?”

“You want to meet for a glass of wine? Maybe we could talk about this a bit more.”

“I'd love to.” She kept smiling. “You want to meet somewhere?”

“Sure. How about Old Town Alexandria? There's a little wine bar called the Grape and Bean. Do you know it?”

“Oh yes. Isn't that the one over on Royal Street? Rosemont?”

“That's it. It's private. We can chat without anyone overhearing.”

“Can't wait.” She had not stopped smiling. “I'd better get back to work.”

Victoria stepped back to her workstation. Probably a good thing.

He needed to start on this legal opinion, but he couldn't get beyond
his knotted stomach. His deadline was looming, though, and like a giant tsunami, it came closer by the second. Why did he have a premonition that something awful was about to happen? Something about the money. That was it. P.J. had come to the realization that billions may be riding on his decision, and no doubt some people in powerful places were going to be extremely angry—angry with him especially, if his identity were ever revealed as the author of the legal opinion that cut against them.

He hit the space bar, taking the computer out of sleep mode, and began typing.

From: LCDR P.J. MacDonald, JAGC, USN (133.3)
To: SECNAV
Via: 133
13

“How's it going, P.J.?”

P.J. turned his head.

Commander Bob Prohaska, his immediate boss, stood over his shoulder. Hopefully Prohaska hadn't overheard his conversation with Victoria, either about the top-secret assignment he had received or about the date he had just set up.

Actually, if Prohaska had overheard their talk about the top-secret AirFlite project, that was no biggie. All the officers in Code 13 were cleared for top-secret projects and collaborated on the legal issues they had been assigned.

But the date he couldn't believe he'd just gotten himself into? The last thing he needed was gossip of a burgeoning office romance. Not good in an environment like this. He turned his chair around.

“I'm fine, sir. I was . . . uh . . . reviewing the assignment on Project Blue Jay.”

“You mean the AirFlite project?”

“Yes, sir. Internally code named Blue Jay.”

Prohaska chuckled. “Interesting code name. Most military operational code names take on a more menacing title, like Operation Desert
Storm, Operation Urgent Fury, Operation Overlord. But Operation Blue Jay doesn't fit any of that.”

“That struck me too, sir. Do you think there's a reason for it?”

“Sure I do.” Prohaska took a sip of his coffee.

“Do you mind if I ask what it is, sir?”

The commander set the coffee cup down on P.J.'s desk. “Blue Jay is a benign-sounding name to distract attention from the project. Sounds more like a requisition order for a Navy Ornithology Department than a massive plan to flood the coastal regions of the United States with light-blue drones in the skies.”

A massive plan to flood the coastal regions of the United States with light-blue drones in the skies.

Prohaska's last sentence made P.J. want to puke at the notion that his legal opinion could become a component of making that happen.

“What do you think, sir? Are they expecting me to write this with a predetermined conclusion already in mind?”

Prohaska sipped his coffee again before answering. “Did you read the memo thoroughly?”

“Yes, sir.”

“Well, I think you'll find your answer there.”

P.J. hesitated. “I was afraid you might say that, sir.”

Prohaska grinned, giving him a look that said,
We both know billions are riding on this project and SECNAV needs rubber-stamp legal approval.

But instead, Prohaska chose words more politically correct. “You'll do an excellent job. Captain Guy, Admiral Brewer, SECNAV . . . they've all got confidence in you. It's an honor to be selected for this assignment. Your opinion could lay the groundwork for a fundamental change in how we fight terrorism in this country.”

Yeah
, P.J. thought.
A fundamental change in more government terror by giving the government more spying power over its citizens.

Prohaska started walking away but then stopped and turned around. “I almost forgot to mention something.” A raised eyebrow. “Did you serve in San Diego with an officer named Lieutenant Commander Caroline McCormick?”

P.J.'s heart shifted into overdrive at the mention of her name. What kind of psychological torture were these people playing?

“Yes, sir. Commander McCormick and I served together in San Diego.”

“Well, guess what?”

“What, sir?” He opened another bottle of water from his desk drawer and took a sip.

“We just got the word. Lieutenant Commander McCormick has received orders to Code 13.”

P.J. almost choked. He set the Aquafina bottle on his desk. “Commander McCormick's coming here?”

“Yep. Admiral Brewer made the selection based on a handful of recommendations he asked for. He's getting more involved in handpicking selectees for Code 13. Apparently she made quite the impression during a project she directed aboard USS
Cape St. George.
Word filtered up the chain, and somebody from SURFPAC called Vice Admiral Brewer to compliment her, and one thing led to another.”