Detained, page 29
Judge Karpel whipped off his glasses and raised an eyebrow. “So are you making a speech, Lieutenant, or are you attempting to make a motion?”
Matt checked his notes, then acknowledged Karpel. “Yes, Your Honor. First, the defense moves that the charges alleging murder relating to the mall attacks in the United States be dismissed.”
“On what grounds, Lieutenant?”
“Your Honor, under the Sixth Amendment of the United States Constitution, my clients have an absolute right to be informed of the charges against them. The government can’t drop a bomb on my clients at the last second, when the trial starts. That’s not meaningfully informing them of anything.” Matt jabbed his finger in the air. “The Sixth Amendment guarantees that an accused has a right to confront the witnesses against him. Given the short-fused time frame, my clients cannot confront their accusers, those accusing them of alleged involvement in these shopping mall terror attacks. Also, there’s no probable cause that these defendants caused all these deaths, and they have a right under the Fourth Amendment not to be tried unless the government can show probable cause. Your Honor, this is an unacceptable attempt at trial by ambush, and this charge should be dismissed.”
Silence.
“Colonel McGrary,” Karpel said.
“Yes, Your Honor.”
“When was the charge sheet drafted to add the murder charge?”
“Just last night. But I would point out that the conspiracy to engage in terrorism charges had already been drafted, and these murder charges are a natural outflow of the conspiracy charges. Therefore, there’s nothing surprising about these charges. Besides, the government drafted the charges almost immediately after the events. And, Your Honor, I’d point out that you’ve already ordered this case to be prosecuted on a fast track. So in the scheme of things, this delay doesn’t mean much at all.”
Only the tick-tick-tick of the clock on the wall behind the bench. Matt wanted to respond to McGrary, but his instincts told him to remain silent until Judge Karpel ruled.
Karpel sat on the bench toying with an ink pen. “The court will take a brief recess to consider the motion to dismiss. The court will stand in recess for fifteen minutes.”
“All rise.”
• • •
DULLES INTERNATIONAL AIRPORT
UNITED AIRLINES GATE AREA
STERLING, VIRGINIA
9:15 A.M.
Emily jogged down the corridor, her eyes fixed on the United gate area, about a hundred yards down the way. She was starting to feel out of breath when the announcement came over the PA system.
“This is the final call for United Flight 8893 with service to Rome-Fiumicino. All passengers with boarding passes for United Flight 8893 with service to Rome-Fiumicino, please report to the ticketing area at this time. Repeat. This is the final call for United Flight 8893 with service to Rome-Fiumicino.”
Emily shifted her jog to a sprint, arriving at the gate as the ticketing agent was closing the door to the Jetway.
“One more!”
The ticket agent turned around. “Are you Miss Gardner?”
“Yes. Here’s my boarding pass.”
“We’ve been paging you.”
“Sorry. Circumstances beyond my control.”
“Carol, call the flight attendant and see if they’ve closed the jet.”
“Sure.”
The ticket agent held the boarding pass under the automatic scanner. It beeped. She looked at Emily. “If they’ve closed the jet, we’re going to have to put you on our next flight in two hours.”
Emily winced. “Is there nothing that can be done? The plane is still here. I see it sitting right there. And I need this flight.”
“Sorry, ma’am. New FAA regs. I know it doesn’t make sense. But once they close the doors to that jet, in the eyes of the government, it’s already in the air, even if it’s sitting on the ground.”
The phone rang and the ticket agent picked it up. “Okay. Okay, thanks.” She hung up the phone. “This is your lucky day, Miss Gardner. They were about to shut the cabin door, but they’ll hold it open for another thirty seconds, but that’s it.”
“Praise God.”
“Here, let me open the Jetway.” The ticket agent stepped to the door, punched an electronic code, and opened the door to the Jetway. “You’d better get moving before the captain changes his mind.”
“Thank you.” Emily rushed into the Jetway, jogging down to the open hatch of the United jet.
“Have a good flight.”
CHAPTER 27
CAMP JUSTICE
GUANTÁNAMO MILITARY COMMISSIONS
PRISONER HOLDING CELL
MILITARY COURTHOUSE
GUANTÁNAMO BAY, CUBA
9:25 A.M.
His hands and feet chained together, Hasan sat on the bench in the holding cell and stared at the gray cinder-block walls.
Najib sat at the other end of the bench, his head hanging low, a look of dejection on his face. Hasan wished that he could put his arms around his son to soothe and encourage him, but the chains prevented it.
“I believe that this Lieutenant Davis is fighting hard for us, my son.”
Najib nodded. “Yes, I agree, Papa. But I worry that the system may be rigged against him. I feel like I am in a Communist country or something. This wasn’t my vision of America.”
Hasan pondered that. “Remember, my son, evil knows no boundaries. Even in a great republic like America, evil slips in, sometimes masquerading as government officials, with the purpose of destroying freedom from within.
“The system might be rigged against Lieutenant Davis, but it is not rigged against God. God will not allow his name to be mocked. And besides, this judge at least appears to be considering Lieutenant Davis’s arguments.”
Two knocks on the door. “Stand back!” someone yelled. As if the chains on their legs would give them a plethora of options on where to stand.
Hasan said, “Remember. The Lord promised to be with us always. Even until the end.”
The door swung open. Two armed US Marine guards stood outside. “Okay, gentlemen. I’m Sergeant Parker, US Marines. I’m assigned as chief of our security detail the rest of the day. They’re ready to start court again. You know the drill. Same as earlier this morning. We’ll bring you in the front of the courtroom. Everyone is in place. They’re waiting for you. Walk to counsel table and stand beside your attorney, Lieutenant Davis, until they tell you to sit.”
Hasan nodded.
“Follow me. Single file. You first.” He pointed to Hasan, and Hasan and Najib shuffled out of the cell and through a small open area. They stopped at a steel door. The sign said “Courtroom Entrance.” The sign was in English and Arabic. “Here we go, gentlemen,” the Marine said.
He opened the door.
Bright lights flooded in almost like floodlights. Hasan followed the Marine into the courtroom through the side door, and as his eyes adjusted, a sea of faces appeared in the gallery. And then he focused his eyes on Lieutenant Davis, standing alone at the defense counsel table.
Following the Marine’s lead, their chains clinking against the floor, Hasan and Najib shuffled their way over to stand beside Lieutenant Davis at the counsel table. The military judge, a Marine Corps officer, said, “You may be seated.”
More shuffling and scraping of chairs could be heard throughout the courtroom as dozens of spectators and all the lawyers took their seats.
“Very well,” Judge Karpel said. “The court has considered the defense motion to dismiss the charge of murder in connection with the recent mall attacks in the United States, with the defense motion resting upon the Sixth Amendment of the Constitution, wherein the defense is raising the Sixth Amendment’s Confrontation Clause and its Effective Assistance of Counsel Clause as the basis for the motion.”
Karpel removed his glasses. “In any military tribunal—and this is a military tribunal—an accused may be tried in short order because of the operational requirements of the military.
“Because military operational requirements are unique in a military justice system, we often must move more quickly than in the civilian system. Even still, we take pride in noting that our efficiency and accuracy and justice are generally superior to the civilian system.
“Now, in this case, the government chose to try both of these defendants together as co-conspirators. That is the government’s choice. One of the two defendants, Petty Officer Najib Makari, is an active-duty sailor aboard the USS Abraham Lincoln, which is about to set sail again.
“So I have fast-tracked this case because of operational necessity, because we can’t put the Abraham Lincoln and its sailors in limbo because of the trial of Petty Officer Makari. The court notes that the USS Abraham Lincoln is in port for thirty days, then is scheduled for deployment to Sixth Fleet in the Mediterranean.”
“But, Your Honor.” Matt rose to his feet.
“Sit down, Lieutenant. I haven’t issued my ruling on your motion yet.”
“Aye, sir.”
“As I said,” Karpel continued, “this case was fast-tracked out of operational necessity. However”—the judge waved a finger in the air—“that doesn’t mean that the government can have its cake and eat it too. Even though the case has been fast-tracked, the charges of murder and conspiracy to commit murder of Ambassador Madison were referred and were part of the charge sheet before this case was called to order. It is also true that the charge of conspiracy to commit acts of terror against the United States was also preferred and referred prior to trial.
“Now, understanding the close timing on all this, the court must draw a line in the sand. While there appears to be at least probable cause underlying the other charges, the last-second addition of these murder charges in the mall attacks does not even give the defendants the opportunity to explore whether probable cause exists.” Silence. Tick-tick-tick. “And frankly, the court cannot see probable cause to support these charges. Therefore, the court will dismiss the charges of murder and conspiracy to commit murder with regard to the mall terrorism activity.”
Mumbling in the back.
“But, Your Honor!” Colonel McGrary rose to his feet. “A dismissal might preclude the government from recharging this on double-jeopardy grounds!”
More mumbling in the gallery.
“Order in the court!” Judge Karpel whapped his gavel down twice, bringing instant silence in the courtroom. “That’s not my problem, Colonel, and it’s not my job to speculate on all that. But perhaps you should have considered that before you referred these charges at the last second.”
“But, Your Honor, this is highly unusual. I’m sure the government isn’t going to approve of this.”
“The government isn’t going to approve?” Karpel whipped off his glasses in an angry move and followed that with an angry tone. “Colonel, do you think this court gives a rat’s derriere as to whether or not the government approves? Unlike some courts, this court is not a kangaroo court to rubber-stamp whatever the government wants. I will remind you that it is my duty, as an officer in the United States military and as an officer of the court and as a military judge, to make my rulings consistent with the Constitution. And I’ll remind you that you still have charges pending against these defendants, and you are still seeking the death penalty. I have not thrown out your entire case. If you don’t like my ruling on these particular charges, take me up on appeal.”
“My apologies, Your Honor.” McGrary stood there biting his lip, his black eyes ablaze with anger.
“Very well. Do we have any further pretrial motions?” Judge Karpel demanded. “Colonel McGrary?”
“No, Your Honor. Reserving rights to appeal, based on the court’s decision to dismiss the most recent charges, the government is nevertheless prepared to proceed with trial.”
“Very well. Does the defense have any more pretrial motions?” Karpel directed his gaze at Matt. “Lieutenant Davis?”
Matt rose to his feet. “Yes, as a matter of fact, we do.”
“What now?” McGrary threw up his arms.
“Hang on, Colonel,” Karpel said. “What other motions do you have, Lieutenant?”
“Your Honor, my clients wish to assert their right to habeas corpus.”
“Habeas corpus?” McGrary blurted out.
“Lieutenant, have you petitioned any federal court for habeas corpus?”
“No, Your Honor,” Matt said. “I haven’t had a chance. But I intend to file with the US District Court in Columbia, South Carolina, of which I am a member.”
“Your Honor, this is an unnecessary stall tactic,” Colonel McGrary thundered, increasingly agitated. “Lieutenant Davis is trying to deny the government’s day in court. First the motion to dismiss, and now this. He admits he hasn’t even filed a habeas corpus action. And this is not the forum for filing such an action.”
“With respect, Your Honor,” Matt thundered right back at the superior officer, “Colonel McGrary’s allegations are ridiculous. My clients have an absolute right to file habeas corpus, and that was settled by the US Supreme Court in the 2008 case of Bush v. Boumediene, that a Guantánamo detainee may file for habeas corpus to a federal court in the United States and have his rights heard by a federal court.”
Judge Karpel leaned back in his chair, seemed to think for a moment, then, for the first time, stared at Hasan.
What was he thinking? Hasan wondered. And what was this habeas corpus that Matt was talking about?
This marked the first extended eye contact from Judge Karpel. Hasan studied the man’s face. He seemed hard, yet under the hard surface, he also seemed to be fair.
Karpel looked away from Hasan. “I think it’s clear that you have a right to petition for habeas corpus, Lieutenant Davis. But as Colonel McGrary points out, you haven’t filed the petition, and this isn’t the place to file it. And even if you had filed it, that petition would have to be granted for it to have any effect on this court.”
Matt responded quickly. “True, Your Honor. I haven’t had time to file it because this case was spun up so quickly that I cannot in good faith say that I can provide effective assistance of counsel. So I’m asking the court for a forty-eight-hour continuance to allow me to file this petition.”
“What?” McGrary asked.
Matt glanced at Hasan and Najib. He put his hand on Najib’s shoulder.
“It’s their right under the Constitution, as Judge Karpel stated in the court’s opinion.”
“This is ridiculous, Your Honor!” McGrary again. “If Lieutenant Davis had already filed, that would be different. But we’re at the stalltactic stage.”
Matt responded, “Please, Your Honor. Forty-eight hours won’t prejudice the government’s case, and it will help the record on appeal.”
“But, Your Honor.”
“That’s enough, Colonel.” Karpel held up his hand. “Deny motion to continue. However, I will place the court in recess for forty-eight hours to allow you to file whatever you want to file. But be forewarned. Because of the operational requirements I mentioned earlier, I do not anticipate any more recesses or continuances. Is that clear, Lieutenant?”
“Aye, sir.”
“All rise.”
• • •
DEPARTMENT OF HOMELAND SECURITY
OFFICE OF THE SECRETARY
WASHINGTON, DC
10:15 A.M.
Fallington Strayhorn paced back and forth across the large office, then stopped in front of the bay windows and peered out across the Potomac into Virginia. If it weren’t for the towers at Reagan airport, he could almost see her apartment from here. How had they lost track of her? And where was Porterfield?
He checked his watch.
This was unacceptable. This whole thing had been poorly timed and poorly executed.
Part of it was his mistake, assuming that a young lawyer would be starry-eyed and swooned into the program if he dangled the carrot of the general counsel’s position.
What should he do about notifying the local authorities? What about the press? What should he tell the White House?
Now, to make matters worse, word came from Guantánamo Bay that the military judge in the terror trials was not fully cooperating.
Partially cooperative. Just not totally cooperative.
For this to work, Homeland Security needed to get that conviction and needed to keep Emily Gardner under wraps!
Strayhorn slammed his hand on the windowsill and cursed.
His desk phone rang.
“Mr. Secretary, Mr. Porterfield is on the line for you, sir.”
“Porterfield! What’s going on with our hot little fugitive?”
“I’m afraid she’s pulled a Snowden, sir.”
“What do you mean, pulled a Snowden?”
“Sir, I’ve been out at her apartment, where we’ve started an investigation. Surveillance video outside the building showed her getting into a cab around 7:30 a.m. We tracked the driver down and found that he took her out to Dulles.”
“Well, get out there and get that place locked down! Now!”
“Too late, sir.”
“What do you mean?”
“She told the cabdriver she was going to Moscow. We followed that up and checked with Aeroflot. She bought a ticket with cash, then boarded a jet. Looks like she’s in the air now. I’m concerned she may request political asylum.”
“What! Somebody’s head is going to roll over all this!”
Porterfield did not respond.
“What flight number?”
“Aeroflot flight number 4325 to Moscow.”
Strayhorn scribbled the flight number on a legal pad. “Listen, Porterfield, I want you to go straight to Andrews and jump on the department’s jet, the 777 designated for my use, and make a beeline straight to Moscow. I want you to pick her up, arrest her, and bring her back here.”
“I’m already ahead of you on that, sir. We’re pulling into Andrews right now, and the jet is on the runway, ready to go. But what if the Russians won’t cooperate?”
Strayhorn stewed in anger. What utter incompetence to have let Emily Gardner escape!
