W: The Planner, The Chosen (37 page)

“I don’t need to think about it,” Kris answered. “My husband and my brother-in-law are not terrorists.  They deserve their day in court. As for me, I am already linked to Michael and Jeff and I have already started making public statements for their release. The government could arrest me at any moment, with or without the Court’s ruling. If that is inevitable, I’d prefer to spend the time left to me fighting for the laws of our country. I have no choice but to go forward, but things are different for Keith.”

Turning to her brother, Kris said, “You’ve already done too much for us. You’ve given up everything for your family, and it’s time for you to leave. Join Karyn and the children, and look after Mitch for me. Tell him about Michael and me, and never let him forget that we loved him more than anything.”

“Tell him yourself,” Keith replied. “I’m staying with you, and we’re going to win this. I’m kind of between jobs right now, and I’ve got plenty of time on my hands, so I think we should get started ASAP.”

“Fair enough,” Julian answered. “I’ll begin preparing the filing for your suit.”

Chapter 18

T
he day after he agreed to file the suit Julian called Kris and told her that he needed to meet with her.

“So what happens now?” Keith was sitting with Kris in Julian’s office. “I used to work in cable news; it takes years to get cases in front of the Supreme Court.  Jeff and Mike don’t have years. From what I hear about these military prisons, they probably don’t have months. If this has to go up the chain of command through all of the lower courts, they won’t still be around by the time it’s over.”

“Keith…” Kris remonstrated.

“I’m not trying to be cruel, Kris, but that’s just how it is.” Keith looked back at Julian and waited for an answer.

“The Supreme Court has what is called ‘original jurisdiction’ to hear a limited number of cases. That means that the Court can choose to hear those cases directly—not in an appellate role but as the original judicial body of authority.”

“Can we do that?  Does it apply here?”

“‘Original jurisdiction’ is strictly limited and very rare. It’s pretty much confined to cases involving ambassadors or boundary disputes between states.  In the entire history of the Court they have heard only a few hundred cases under original jurisdiction. In what state were you and Michael living at the time of his arrest, Kris?”

“We were living in Nevada.”

“Where was Michael arrested?”

“Nevada,” answered Keith.  He had not told Julian that he was there when they were arrested, and he was not planning to, but he could state for a certainty where they had been when it happened.

“So a resident of Nevada was arrested in Nevada under section 1021 of the National Defense Authorization Act of 2012. That might have possibilities.”

“Possibilities…how?”

“When Congress passed the National Defense Authorization Act of 2012, and the president signed it into law, a lot of Americans were, understandably, afraid that if they were accused of domestic terrorism, they would be subject to arrest and detention without trial,” Cicchetti explained. “Within a month after the law was signed, a group of civil rights activists had filed a case in federal court against the new law. In May of 2012, a Manhattan Federal Court judge ruled that the indefinite detention provisions violated the Constitution. She issued an injunction against enforcing the law.  Later that year, the federal government appealed and when that case went to court in 2013, the federal appeals court overturned the lower justice’s decision and ruled that the federal government could, in fact, detain citizens without trial, which they began doing in early 2014. The plaintiffs appealed their case to the U.S. Supreme Court, and that case was on the docket when the domestic terror threat occurred which forced the building to close. From that day to this, the Court has not heard any cases.”

“2014?” Kris repeated. “I had no idea they were arresting people back then.”

“It was like everything else.  The arrests started out slowly, and they accelerated as resistance broke down.  But the case that was pending before the Court has never been withdrawn.  The problem with that, of course, is that the Court has not heard a case in over three years. The attorney’s phone number has been disconnected, and I doubt seriously that most of the plaintiffs who brought the original suit are still alive.”

“That’s discouraging. What’s the part with the ‘possibilities?’” Keith asked.

“After the federal law was passed, a number of states passed their own state laws banning enforcement of section 1021 of the NDAA. These were essentially anti-kidnapping laws to prevent the federal government from taking away citizens in black vans and imprisoning them for the rest of their lives. One of the last states to pass a law blocking enforcement of 1021 was Nevada. And I happen to know that the Attorney General of Nevada is a pro-Constitution libertarian who hates all of these encroachments by the federal government. So, if we can persuade the state of Nevada to join us in the protection of one of their citizens against the federal government, then we will have grounds for a request for a hearing directly by the Court based on original jurisdiction.”

“How long will that take?”

“I don’t know.  First we have to find out whether Nevada will join our action.”

“How did a law that allows the federal government to just lock up people without a trial get passed in the first place? How did that just slip under the radar without the media and the public going ballistic? This should have been front page news instead of something we are just now trying to sort out.”

Julian answered thoughtfully, “The National Defense Authorization Act came in after 9/11. The entire country was shell-shocked over terrorism—the nation was fighting a war in Afghanistan and then in Iraq. There was strong anti-terrorism sentiment. When the 2012 National Defense Authorization Act was passed, the law allowed the military to detain,” at this point Julian brought up the text of the act on his laptop so that he could read the wording, “‘a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported hostilities in aid of such enemy forces.’ Most Americans are not involved with al-Qaeda or sympathetic to al-Qaeda, so even if they heard about the law they didn’t pay it much attention. As in most of these situations, the devil was in the details. In 2013 when the defense spending bill was reauthorized, the references to the Taliban and al-Qaeda were removed and the language was changed to encompass Americans acting against the interests of the United States government, or with ties to domestic terrorist organizations or with ties to foreign governments designated by the U.N. as terrorist governments. Those are the grounds for holding Michael—he has ties to the nation of Israel, which the U.N. has now determined is a terrorist state. And he doesn’t just have ties by virtue of his family—he has dual citizenship.  The government’s case is that because he is a citizen of any enemy state—the state of Israel, and because of his work on
The Wall
—he can be detained permanently.”

“What about Jeff? He doesn’t have dual citizenship. He was born in Arkansas.”

“Jeff is guilty by association. Through his friendship with Michael, he has demonstrated a ‘lack of loyalty to the United States government and a general disregard for its laws.’”

“Look, the indefinite detention provisions of the NDAA are a simple case of boiling the frog. If you drop a healthy frog into a pot of boiling water, he’ll jump out. It hurts like crazy. But if you put him into a pot of cool water and turn up the heat, you can actually boil him to death without him ever attempting to escape. If the original wording of the indefinite detention provisions had said, ‘if you do or say anything the federal government doesn’t like you can be arrested at any time and held without trial for the rest of your natural life or executed at the whim of the president,’ the American people would have been up in arms.  Congress would almost certainly have never passed a law like that. But, instead, the law said that if you are affiliated with al-Qaeda or the Taliban or associated forces and you are committing belligerent acts against the U.S. you can be detained forever without a day in court. Most Americans looking at that say, ‘That’s not me; I don’t have anything to worry about.’ They didn’t pay attention to the law, and they didn’t pay attention to the subtle rewrites that were taking place even while its legitimacy was being challenged in court. And soon, there was a law on the books that gave the government the right to arrest anybody at any time on accusations of terrorism. They didn’t pay attention when young men and women serving in the military were increasingly diagnosed with post-traumatic stress disorder and profiled as threats to the safety of the American people. They didn’t pay attention when people who supported the Constitution and traditional conservative values were placed on the Homeland Security’s Domestic Threat List.  Then one day, they woke up in a country where a lot of people had been accused of terrorism and had disappeared, and they didn’t even know how it had happened.

“For now we will have to wait. I’ll let you know when I hear from the attorney-general of Nevada.” Julian shook hands with them and let them go. Kris and Keith waited a week to hear from him again. Finally, they got the call to go back to his office, but when they saw his face, they knew that the news was not good.

“The Nevada AG won’t join the suit,” Julian told them frankly. “To be honest, I think this is just too dangerous for Bruce. The stakes are so high now; everyone knows what losing means.”

“So now we have to start with a lower court and go all the way through the process?” Kris already sounded defeated. “That could take years.”

“Not necessarily. The Supreme Court legally has original jurisdiction in any case where a state is a party.   It’s just extremely rare for the Court to agree to hear a case like this one that has not been through the lower courts first—that’s the reason I wanted Nevada to join us. But since they won’t fight to uphold their own laws to defend their own citizens….” Cicchetti strummed his fingers thoughtfully.

“What?” Kris hated to appear rude, but she could not stand to just sit waiting for Cicchetti to tell her what he was going to do.

“They can still be a party to our suit.  We’ll file your suit as Kristina Mitchell Linton on behalf of Michael Aaron Linton and Jeffrey Ray Conners vs. the State of Nevada, the United States of America, the Department of Homeland Security and the Department of Justice. That makes the state of Nevada a party to the suit and gives the U.S. Supreme Court original jurisdiction.”

Kris smiled, “Clever.”

“Now you have to understand, Kris, the Court does not have to agree to hear this case under original jurisdiction.  Four of the nine Justices must agree to hear it at all.  The four could agree to hear arguments regarding whether this is an appropriate use of original jurisdiction, and they can rule that it is not. If they choose not to hear the case, we have no choice but to file in a lower federal court and wait for a decision by a federal judge. Whatever the outcome of that case, it will certainly be appealed, and at that point we can ask the Supreme Court to fast-track a decision for us, but again, they can refuse. The court can determine that we have to go completely through the appeals process before agreeing to hear the final appeal.”

“Which will take years…” Keith interjected.

“Which will take years,” Julian responded. “I’m not saying that this is going to happen.  I am saying that it can happen and it may happen. But even if it does happen, you are safer and better off staying in the system and fighting through the courts than you would be if you abandoned the fight. I just want you to be prepared for what may be a very long haul.”

“I don’t have any choice.  I want this to be over, but I want it to be over in a good way—where we all get to go home and live happily ever after.  Whatever happens, I am in it to win,” Kris sighed.

“That’s what I wanted to hear. First, we file our petition; then we wait for the Court to let us know whether they will hear it.  If they agree, I will prepare a brief of less than fifty pages outlining our case. Then the government, represented by the Solicitor General, will respond to that brief. Usually, he responds within thirty days. The court will then schedule oral arguments, and they will allow each side thirty minutes to present our cases. They will already have reviewed the briefs, so the thirty minutes is, in reality, a question and answer session for the judges.  After that they rule. That’s the process—if they go ahead and hear the case under original jurisdiction, which, as I have already explained, I cannot guarantee.”

“I understand, Julian, and I know that you are not guaranteeing anything except your own efforts. I appreciate your honesty. Let me know what you need from me.”

Kris and Keith rose and left the office without much hope.

∞

Julian was alone a few days later when Bruce McKinley, attorney general for the state of Nevada, called Julian’s office because he had seen the suit that had just been filed.

“Julian!” Bruce practically shouted into the mouthpiece, “How could you do this?  I thought I made it perfectly clear to you that I wanted to stay out of this NDAA mess. I got a call today that you had filed a suit, and you have named the state of Nevada as a defendant.   How dare you drag me into this!  I told you that I can’t get involved!”

“You’re already involved, Bruce,” answered Julian calmly. “Linton was arrested in Nevada and detained without trial. Nevada passed a law in 2013 protecting its citizens from indefinite detention. Your state failed to enforce your own law. In fact, we have information that suggests that Nevada law enforcement was actively involved in the arrests of Michael Linton and Jeff Conners. That makes the state liable for what happened to them.”

“This is a low, lousy thing to do, Julian.  We’re all just trying to keep our heads down now.  You’re going to get yourself killed; you’re going to get me killed too.  And for what—for a couple of guys who are probably dead already or soon will be?  What’s wrong with you?”

“What’s wrong with me? I’m a constitutional attorney.  I fight for the freedoms that our fathers died to defend, except that instead of doing it on the battlefield I fight in the courtroom. What’s wrong with you, Bruce? You were a marine—you fought in Iraq. As I recall, you were one of the original members of Oathkeepers—you swore to protect and uphold the Constitution of the United States and to defend your fellow Americans against unlawful detention regardless of any order by any president. Now you don’t want to even stand up in court and say that this is wrong?  What happened to you?”