W: The Planner, The Chosen (42 page)

Chapter 25

“
O
yez, Oyez, Oyez,” the official crier called the attorneys and spectators to attention in the small room of the Capitol Building which had once been home to the Supreme Court and now was the location for the most anticipated legal proceedings in the United States’ recent history. “All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States, and this Honorable Court.”

Kris and Keith sat together with the other spectators on this, the last day of January of 2018. No cameras were allowed today—only a few pre-approved representatives of the press. Normally, visitors to the Capitol were allowed to sit in on proceedings if they arrived in time and if there were room for them, but because of the small venue and the contentious nature of the arguments, the Justices and the Capitol police had determined that only those persons with a direct interest in the case would be allowed into the chamber to hear the oral arguments.  

Julian had practiced his performance here today since the day he had finished reading the government’s response. He had written every question that he anticipated the Justices might ask, and he had written his own responses to them. His wife Dottie—an attorney herself—had helped him prepare by playing, alternately, the role of various Justices and the role of Paul Greely.

Greely had not spent nearly so much time preparing.  As he understood the case, his primary role as Solicitor General was to present a case that sounded plausible to the American people when they read the condensed version on the home page of whatever news source they trusted. Tom Quincy had assured him that winning was a foregone conclusion. All he needed to do was show up and look good enough to “sell” the government’s position on section 1021. Greely was a career government attorney who had chosen to never compete in the private sector. He habitually put out the minimum effort absolutely necessary to keep his job, and that was what he was prepared to do today.

“Mr. Chief Justice, and may it please the Court…”As the petitioner, Julian spoke first, briefly making his case that section 1021 was a violation of the Fifth and Sixth Amendments of the United States Constitution and presenting both case law and legal precedent to support his assertions. 

Paul Greely briefly began with the first of the three rebuttal arguments—that the Fifth and Sixth Amendments did not apply to the detainees because of the time of war or public danger clauses.

“In a post 9/11 world, terror is a constant threat,” Greely argued. “The Constitution was written for individual specific crimes—not planned acts of terror.  Our legal system made a decision after 9/11 to treat acts of terrorism as acts of war against the citizenry rather than as individual crimes to be investigated and prosecuted by local law enforcement. When seen as planned acts of aggression against the United States, these take on the status of war crimes and are not protected by the Constitution.”

“Using that argument, the Fifth and Sixth Amendments would never apply,” Julian countered. “The Bill of Rights was written shortly after the War for Independence. Our nation had a lot of residents who did not agree with the war and were loyal to a foreign power—Great Britain. They were formerly citizens of that foreign power, but the Founders did not say, ‘We have all of these disloyal people in this country who want to bring down our nation, so we are going to lock them up and not afford them rights.’ On the contrary, they wrote a document that guaranteed legal protections for all citizens—for those who were loyal to the new Republic and those who were not.  Since that time we have had a Civil War which tore our nation apart and sharply divided the country’s loyalties; we have endured two World Wars, ‘hot’ wars all over the globe, including Vietnam and Korea, and a ‘cold’ war that lasted almost fifty years. Through all of these conflicts, we have remained a nation of laws that protects its citizens against unlawful arrest and detention.  And when we have strayed from those principles, as we did with the Japanese-American internment during World War II, it has been to our own discredit.”

“You don’t believe,” asked Justice Nina Scarborough, “that we face particular public dangers at this time in our history that require extraordinary measures to keep our people safe?  You don’t believe that our need to protect the lives of innocent people is greater in some cases than the need to preserve some individual rights?”

“I believe, Your Honor, that the protection of individual rights is paramount in a free society.  We have fought for freedom. Our war with terror is ostensibly a war for freedom—a war to expand freedom in other nations and to protect freedom at home. If, however, we allow the individual freedoms of our citizenry to be lost to that war, the terrorists have been successful in their ultimate goal of the destruction of our way of life. The true public danger arises from living in a society that does not recognize the protections afforded by the Bill of Rights.”

Justice Fred Gentry directed his question to Paul Greely, “You argue that the burden of proof is too difficult for the government to make in cases involving terrorism or terrorist intent because in many cases federal agencies are able to intercede and prevent the intended attack before it happens. Why is the government not prepared to bring these cases to trial based on testimony of confessed terrorists? Surely law enforcement agencies have collected a great deal of information on the terrorist networks and on the people they arrest to support the government’s assertion that these are dangerous high value targets.  If the evidence against these suspects is as overwhelming as you say, what is the danger in allowing that evidence to be heard and evaluated by a jury?”

“Your Honor, the evidence against the detainees is often complicated. It is collected over months and sometimes years of careful intelligence gathering. Presenting this evidence in open court before a jury could compromise ongoing investigations. Forcing federal agents to testify in court against the accused could compromise their individual safety. Many terror networks are highly sophisticated organisms. If the agents themselves and the means for extracting information vital to the security of the United States were made available to the public, we could jeopardize national security.

“Juries are accustomed to evaluating acts committed—not acts planned. The government believes that juries of well-intentioned citizens with no intelligence training and little legal knowledge would have a very difficult time unraveling the complexities of terror networks and relationships. Because they may not fully understand the data they are seeing or how the actions of one party can trigger a series of events which endanger thousands or even tens of thousands of Americans, they may tend to release people who are a danger to society.  That is why indefinite detention is so vital to the safety and security of the United States.  When we detect that an act of terrorism is being planned, we make an arrest and detain the target. In this way we are able to detain dangerous persons without compromising the intelligence that led us to them.”

“But,” Justice Gentry continued, “doesn’t the lack of due process in such an arrest by its very nature mean that any person can be arrested at any time? You maintain that some of these cases are very complex, but surely most are simple enough for the average juror to understand. Without a system of legal checks and balances, what is to stop me as an intelligence agent from accusing my neighbor because his dog barks all night and keeps me awake? I can have him arrested tomorrow and be rid of him and his annoying dog, and no one is ever the wiser.”

“I can assure the Court that nothing of that sort is taking place,” Greely responded. “Every detainee is in custody because of actionable intelligence that he or she posed an imminent threat to the safety and security of the United States or its citizens.”

“But how can we know that?” Justice Roger Murphy pursued the question, “In a criminal case the burden of proof is on the government as part of the prosecution. If there is no proof presented against these individuals, how do we know that at least some of them have not been detained without cause?”

“All detainees are subjected to extensive interrogations during their confinements. Most confess—even if they do not do so immediately.  The remaining few have been implicated by other high value targets. We glean valuable information from the statements of these individuals.”

“Most confess?  But some insist that they have been unjustly detained?” Murphy went on.

“At first, some detainees refuse to cooperate. But we offer incentives to induce cooperation. Detainees usually find that it is easier to work with the government and provide us with intelligence about their networks than to continue to maintain their innocence.”

Kris shuddered. She was trying as hard as she could to stay calm and maintain her decorum. Julian had cautioned her that any show of emotion was inappropriate. But the thought of Michael in prison, subject to constant interrogations and “incentives” to confess to crimes he had not committed was almost more than she could bear.  Fortunately, the hearing was almost over.

The final questions were from Chief Justice Dillon, “I would like to ask for clarification on the government’s position that bringing these cases to trial is unduly burdensome to the U.S. taxpayers and the court system.  Can you explain in more detail?”

“Put simply, if we look at the cost of the trials, the cost of the legal defense, and the cost to the court system, the expenses of putting these detainees on trial before a jury of their peers is prohibitively expensive. If we also factor in the backlog that these cases would produce in the court system, we are asking the taxpayers to assume a massive financial burden for a group of people who have largely confessed to the crimes for which they are being detained.”

“If it please the Court,” Julian interjected, “the official position of the Administration from every official outlet is that there are no more than several hundred persons detained under section 1021 of the NDAA.  These persons are, presumably, from various states in the U.S. and they could be returned to their home states for trial.  If there were a total of five hundred people divided equally among the fifty states that would be a total of only ten additional cases per state. Assuming that all of them needed a court-ordered defense, that would be a total of ten attorneys per state and ten cases per state, which should not be overly burdensome to the government or to the federal court system.”

“Well, Mr. Greely,” Justice Dillon turned to Paul, “How do you respond?”

“Mr. Cicchetti’s response is overly simplistic. I can tell you that we are talking about considerably more than ten cases per state.”

“Can you elaborate?”

“Mr. Cicchetti’s argument is based on the idea that the defendants are evenly spread over the United States, which is not the case.  There would be a serious backlog in the federal court system in certain districts of this country—many districts of this country—if these detainees were to be put on trial.”

“Suppose that all of the detainees originated in three states,” Julian pursued the argument. “That would be a total of 166.6 defendants per state. That number is still not sufficient to cause a log jam in the federal court system for the next several years. Furthermore, if some of the defendants choose to enter guilty pleas in exchange for leniency, those cases would not have to be tried. The government’s math just does not hold up.”

“I would be interested to see how the federal court system would try six/tenths of a defendant,” Justice Dillon responded, and the observers laughed, “But as to the plaintiff’s point, can you tell us what the regional concentration of the defendants is? Are we talking about one state or five or twenty five?”

“I do not have that information here with me today,” responded Greely. “However, Mr. Cicchetti’s numbers do not work. We are not talking about three states with 166.6 defendants per state.”

“What are we talking about? Because even if all five hundred came from the same street, in the same county, in the same state, the federal court system should be able to accommodate trials for five hundred people,” Dillon persisted.

“I…” Greely was becoming rattled now. He had not anticipated this line of questioning, and he was not prepared for it. “I don’t have an exact number with me at this time.  But I can tell you that there are more than five hundred persons currently confined under section 1021.”

“How many more?” asked Dillon directly.

“The actual number, which I do not have with me today…” Greely paused to collect his thoughts, “The actual number is a matter of National Security. But I can say for a certainty that it is considerably more than five hundred people.”

“Considerably more?” repeated the Chief Justice.

“Yes, Your Honor.”

“And you can’t give this Court a rough idea of how many more?”

“No, Your Honor, I cannot.  But I can say that trials in federal court would be prohibitively expensive.”

Julian tried not to change expressions, but even Kris could see the triumphant look on his face as Greely visibly turned red.  He had forced the Solicitor General to admit that the Administration’s numbers were lies.  Now he was ready to make his final point.

“How can the government ask this Court to put a price tag on liberty? The Solicitor General maintains that the cost of trials for the accused is prohibitively expensive. What is the cost to our country of having an undetermined number of people indefinitely detained for months or years without the benefit of a trial?  What is the cost to our way of life, to the liberties that men and women have fought and died for?  I submit to the Court that whatever the financial burdens imposed by trials, the price of
not
affording trials with legal representation to these detainees, whatever their number, is prohibitively expensive and is too great a price for our citizens to pay.”