W: The Planner, The Chosen (36 page)

“Michael had a close friend—a priest named Nathan O’Brien.  He and Michael went to college together, and when Nathan was arrested and detained, Michael worked to get him released.  Father O’Brien was executed shortly after his detention, and that motivated Michael and Jeff to start another website—
The Wall—
which encouraged people to post the names and addresses of Americans who have been arrested or disappeared and are being held without trial. They did not post any information on the website which could in any way threaten national security. People who have lost friends and loved ones were simply encouraged to visit the site and post information about those they had lost. A few days before Michael and Jeff were arrested,
The Wall
website was taken down—we believe that the federal government is responsible.  I also think that Michael’s and Jeff’s involvement with the website was the real reason for their arrests.

“I am confident that if Michael and Jeff had the benefit of a trial, they would be found not guilty.  In fact, I do not believe that the government could even make a good enough case for their arrests to secure a grand jury indictment against them. Unfortunately, we don’t have any way to find out because under the provisions of the NDAA, they can be detained indefinitely without trial as long as the government labels them domestic terrorists.  That’s why I wanted to see you.

“A friend of mine, Lena St. Clair, gave me your number.  She was the President of the American Freedom Coalition, and she said that you might be able to help me.  I want to bring a lawsuit against the Justice Department and the Department of Homeland Security on behalf of Michael and Jeff.  They are not criminals, but even if they were, they have a constitutional right to a trial before a jury of their peers. They have the right to be represented by an attorney, and they have the right to face their accusers in court.  I want to sue the federal government on their behalf for their right to a fair trial.”

That was all Kris had to say—all that she had come so far to say.  She searched Cicchetti’s face for a response, but she could not discern any change of expression whatsoever. Julian had a good poker face, which made him difficult to read.

“That’s very interesting.  I’ve met Lena—she’s quite a lady. I followed the O’Brien story, and I’ve seen
The Wall
. It was a very sophisticated website—if it hadn’t been the Feds would have found it and shut it down a long time before they did.  Tell me, did your husband and brother-in-law have any help with that site, or did they manage it by themselves?”

Kris looked Julian directly in the eye, “No,” she lied.  “It was just the two of them. Computers and internet stuff were Michael’s hobbies.” She hated to start out by lying, but Jessie and Kyle were now her most precious remaining assets and under no circumstances could she compromise them by revealing their existence.  For all she knew, Cicchetti might turn this entire conversation over to the Feds, but if he didn’t and he were arrested himself, he would not have information that he could trade to the government.

He returned her direct gaze, and this time she sensed that he did not believe her, “That’s too bad, actually. Somebody with that level of skill in the cyber world could be a great asset in building public support for detainees and public awareness of the problems caused by NDAA. Your husband must be a very special man if he had the time and skills to practice medicine and also to become as proficient in computers as he would need to be to manage a site like
The Wall
.”

“My husband is a very special person. He always stands up for what he believes, and now he needs someone to stand up for him.  That’s why I’m here.”

Cicchetti leaned back in his chair and put his hands behind his head while he thought. “What you are proposing is very intriguing. The indefinite detention provisions of the NDAA were upheld by only one court—the Ninth Circuit Court of Appeals four years ago.  Every court prior to that had ruled that they violate the Fifth and Sixth Amendments of the Constitution.  The Ninth Circuit ruled that the Founders did not envision a world with terrorism and that their interpretation of the rights afforded by the Fifth and Sixth amendments needs to be amended to give the Justice Department, Homeland Security, and the President of the United States the latitude to detain persons deemed to be threats to the nation’s security.  The ruling had already been appealed to the Supreme Court when the bomb threat occurred and the building was closed. Since that time, the Court has not heard any cases.  If the Supreme Court were to hear the case now they would be ruling on a law that virtually all other justices have shot down.  It would be a huge victory for the Constitution.  The question here is twofold:

1. Could we frame the case so that we could actually persuade them to hear it?
   
2. Do the facts of this case actually have merit?  In other words—if we get a hearing—can we win?
   

“I can’t give you an answer today.  Frankly, I need to think this over. I also need to do some checking on your husband and your brother-in-law. I understand your sentiments, and I agree with your argument that even if they are guilty they deserve a trial. However, you must understand that what we are proposing has never been done before, and if the government can make a strong case to the Court that they are involved in acts of terrorism, our own case is greatly compromised.”

Kris had anticipated that he would want to do some checking into her story—she had brought with her Michael’s Social Security number, date of birth, and his last real address at the FMPD.  She also made a point to mention to Julian that all FMPD employees had to pass extensive background and credit checks.

She did not have Jeff’s social security number—she had never thought to ask for it, and she could not risk Karyn’s and the children’s safety by asking her sister for it now. She had written down everything she knew about her brother-in-law—his date of birth, full name, city of birth, last known address, and the name of the high school he had attended. She hoped that it would be enough for a good investigator to determine what she already knew—that he was a law-abiding citizen in the wrong place at the wrong time.

“Alright, Mrs. Linton. Give me some time to look into this and I’ll be in touch,” Julian said after he had written down all of the information she had brought him.

“Thank you very much.  And, please, call me Kris.” 

They shook hands, “It was nice to meet you, Kris. You’ll hear from me in a few days.” He walked with her to the lobby, and she thanked Anne before walking out the door.  It was 2:30—he had given her thirty minutes.  Keith was waiting for her in the loading zone in front of the building with his blinkers flashing as if he were there to make a delivery. She was grateful that he had come for her and that she did not have to make the half-hour trek back to the cafeteria.

“How’d it go?” Keith sounded tired but nervous—more nervous than he wanted to appear.

“I think it went well.  He seems very well informed, and he appeared to be interested. He asked me some questions about
The Wall,
but I told him that it was all Michael and Jeff—they did it completely by themselves.  He said that he needed to do some checking, and he would let me know in a few days whether he could pursue this.”

“So now—we wait?”

“We wait,” she answered.

Kris did not want to leave D.C., but Keith thought it was too dangerous for them to remain in the city.  While she was still in St. George, she had given a press conference and several interviews about Michael and Jeff.  If a federal agent recognized her, she could be handcuffed and arrested, and their work would be over before it had even begun. They spent the next few days in a motel on the outskirts of town while Kris waited for a phone call that felt as if it would never come.

Chapter 17

A
fter three days, Kris’ phone rang. She answered it to hear Anne’s voice on the other end. “Mr. Cicchetti would like to see you in his office tomorrow morning at 8:00.”

Kris wanted Keith to stay behind again, but this time he refused. “Keith, we don’t know for sure that Cicchetti hasn’t called the federal authorities. I could be arrested as soon as I walk through the door. If you’re there, you’ll be arrested too.  If you drop me off a few blocks away I can walk, and then we can meet somewhere later, and I can tell you what he said.”

“If the Feds are determined to arrest you, they’ll know that you didn’t just teleport here. They can follow you when you leave and arrest us both when we meet up.  That’s what I would do if I were a Fed. Anyway, after so many years in news I’m great at reading people, and I want to get a read on this Cicchetti guy. If he’s not on the level, I’ll know right away.”

The two of them were in Cicchetti’s waiting room at 7:50 the next morning. Fortunately, Anne had arrived at 7:30 so they were able to sit in the waiting area rather than loiter on the street calling unwanted attention to themselves.

At exactly 8:00, Anne stood and walked them back to Cicchetti’s office where he was waiting for them. Kris was relieved to see that no one was with him—in fact, he and Anne appeared to be the only two people in the building. After Kris had introduced Keith to Julian, the three of them were seated.

“It’s been an interesting couple of days, I’ve gotta tell you,” Julian began. “I did quite a bit of checking on Michael and some on Jeff. Without Jeff’s social security number it’s a little harder, but you gave me enough information to get a sense of the guy. But Michael—my team has talked to a lot of people about Michael Linton in the last forty-eight hours. Everyone has an opinion; people either like him or hate him. But no one can seem to offer any links to terrorism—nothing to radical organizations, radical ideologies, or radical people. About all that my sources could say for sure about him is what we already know—he is a life-long supporter of the state of Israel, and he was involved with
The Wall
. Although, I have to tell you very frankly, Kris—nobody we talked to believes for a second that Michael possessed the skills to run that site himself. 
The Wall
does seem to be what got him arrested, but I think it may also be what is still keeping him alive. The Justice Department and the ECA would really like to know who else was behind
The Wall
. If they execute Michael and Jeff, they’ll never find out. If they become convinced that there really was nobody else, the Feds will probably execute them immediately. And if they determine that there were other people involved but they can get to them without Michael and Jeff, they’ll probably execute them. I’m sorry to be that blunt, but that’s just the way it is.

“I have spent my entire career standing up for the U.S. Constitution. I have fought for it; I have argued on behalf of it. I believe in the Constitution and the Bill of Rights more passionately than I believe in anything else in this life except God Himself.  It’s the foundation that this country was built on; it’s the basis for our system of government; without it we don’t have anything that distinguishes us as a free and independent people…”

Keith now interrupted him, “But really, the Constitution is dead, isn’t it? It’s been dead for at least the past 10 years. When Kris told me that she wanted to do this, I came along because I didn’t want her coming here alone, and I knew I would never be able to talk her out of it, but let’s be honest. Nobody cares about the Constitution or the Founding Fathers or any of it. It’s ancient history now—just another old document for school kids on tours of the Capitol building to gawk at.  And the whole system of government that came with it—the separation of powers, the Supreme Court, Congress—all that stuff belongs in a museum. Now we have a President who does anything he wants and arrests anybody he wants, and nobody can say anything or do anything about it because they know if they do they’ll be next.  So, really, what’s the point of any of this?”

“The point,” Julian answered, “is that as long as people are afraid to stand up and speak up for the truth, nothing can ever get better. The federal government will just continue to get more powerful and the people will continue to get weaker until finally there’s no one left alive who even remembers what freedom was or how it felt.  When we get to that place, we really are finished as a country. But until then, as long as we have people who know what the Constitution is and what is says and how strong and free our country has always been because of it, there’s still hope. And as long as there’s hope, there’s always a chance.  Have you ever heard that old saying, ‘the only thing necessary for evil to prosper is for good men to do nothing?’” Kris and Keith both nodded. “The converse is also true; ‘the only thing necessary to bring down evil is for good people to stand up and fight against it.’ Evil has never been able to withstand a long, hard fight with the truth.”

“But how will anybody know it’s the truth?” Keith persisted.  “I know it’s the truth; maybe you know it’s the truth, but what makes you think you can convince anybody else? It’s just a really old, outdated way of looking at the world. The Constitution is a ‘living document’ now, and it can mean anything the government wants it to mean.”

“How does anybody know that anything is true unless someone tells them? But when people hear the truth, they usually recognize it. It doesn’t get too old, or too dusty, or too outdated—you don’t need to trade it in for a newer, flashier model. The truth never needs updating—it never goes out of style.”

“You’re sure about that?” Keith looked unconvinced.

“I’d bet my life on it. And I’d definitely bet my career on it.  I’m sure enough to take this case.”

“Oh, thank you!” Kris exclaimed. She felt so relieved that she practically shouted her response.

“You need to understand what you’re getting into, Kris,” Cicchetti continued. “You will be suing the United States government on behalf of Michael and Jeff on the grounds that the indefinite detention provisions of the NDAA violate the Constitution of the United States of America. The Supreme Court may not agree to hear the case—they haven’t heard a case, any case, in more than three years. If they do agree to hear it, the government attorneys will argue that you do not have standing to file the suit.  In other words, since you have not been arrested yourself, you do not have the right to file a suit contesting the legality of the NDAA on behalf of your husband and brother-in-law.

“Assuming that we get past that hurdle and the Court rules that you do have standing, they will schedule a court date.  It’s not exactly as if the Court has a full docket right now, but that does not in any way guarantee that they will agree to hear the case immediately. They may, and probably will, schedule the oral arguments months from now to give both sides a chance to prepare.

“Each side is allowed only thirty minutes to present its case, so the oral arguments will take only one day.  The Court is in session from October 1 until June 30 so it has until June 30 to hand down its decision. Therefore, depending on when they hear the case, it might be weeks or even months before we have a decision.

“Remember, I will not be arguing Michael’s or Jeff’s innocence; likewise the attorneys for the government will not be arguing their guilt. But you do have to be prepared for the fact that although I will not address the issue of their guilt or innocence, the government attorneys will attempt to paint all detainees, and especially Michael and Jeff, as domestic terrorists who pose a threat to the United States.  We will argue only that the U.S. government has no constitutional authority to enforce the NDAA.  I will introduce rulings from several federal judges supporting my position that the law is a violation of the Constitution; however, the government attorneys will present rulings from the Ninth Circuit Court of Appeals upholding the NDAA.

“When the oral arguments have ended, we will wait for their ruling. I want to stress again that the Court will not rule as to the innocence or guilt of Michael or Jeff or any other detainees. They will rule only as to whether they can be detained indefinitely without a trial. If you win this suit, all you will have won is the right for them to be tried as domestic terrorists in federal court. 

“At that time, the government will officially charge them with specific acts of terrorism, and a grand jury will decide whether there is sufficient evidence for an indictment. If they are indicted, they will stand trial, and they may be convicted. Both your husband and your brother-in-law will need criminal attorneys to represent them. My fee is covered by the Freedom League—we take constitutional cases on a pro-bono basis.  But the criminal attorneys who represent your husband and brother-in-law will, in all likelihood, be very expensive. No matter what the outcome of the trial, you will very likely have massive legal bills at the end of the process.

“In my opinion, however, you would still be substantially better off than you are now because in a federal trial the burden of proof is on the government to demonstrate beyond a reasonable doubt that Michael and Jeff have been involved in the planning or commission of specific acts of terrorism against the United States government. Also, in the event that Michael and Jeff are convicted, they will be sentenced for a specified period of time, and they will have the right to appeal that conviction. In addition, you and your sister will know where they are, and you will be able to visit them during their incarceration—if it comes to that.

“The more serious outcome, again in my opinion, occurs if the Supreme Court refuses to hear the case or does hear the case but rules with the government that the NDAA is constitutional. In the first outcome, by their silence, the Court is siding with the government and allowing the ruling to stand without actually having to make a public statement.  In the second outcome, they are actively affirming that the NDAA indefinite detention provisions are legal and, in practical terms, the U.S. Constitution is no longer in force in the United States.

“You are about to become a very public figure, Kris.  If the Court rules in favor of the government and upholds the indefinite detention provisions of the NDAA, you will be identified as a domestic terrorist and immediately taken into custody. In fact, you can expect to be arrested within minutes after the ruling is handed down. You, Michael, Jeff, and anyone else who can be directly connected to you will almost assuredly be executed within days of the ruling. Do you have children?”

“I have one—a little boy.  He’s not in the country.  I sent him away as soon as Michael was arrested.”

“That’s good.  Don’t try to contact him.  From now on you must live every day as if everything you say and do is being watched—because it is. Family members of suspected terrorists can be extradited from other countries, so be very careful. Where is your sister? Does she have children?”

“She has two children of her own, and she is taking care of my son. She is half way across the world, and we have no contact with each other, specifically for the reasons you just mentioned. I have not even seen a picture of my son since they left.”

Keith interjected, “If doing this is just going to get Kris killed too, what’s the point?  Do you think there’s any real hope of winning?  Is this just another useless exercise to make all of us feel better while we’re waiting our turn to get arrested for something we didn’t do?”

Julian took off his gold-rimmed glasses for a moment and rubbed the top of his nose. Returning his glasses to their former position, he answered Keith. “If your sister understands the risks, it’s not pointless. For more than three years, the Supreme Court Building has been locked and the Court has not heard a single case. If they agree to take this case, it will have massive implications for the future of the United States. And if the Court rules that the NDAA is unconstitutional, that ruling will strike a blow for freedom in this country that will be heard around the world.”

“What makes you think they’ll agree to hear the case?  They could refuse to even look at it.”

“They could,” answered Julian honestly, “and they might.  But I don’t think they will.”

“Why not?” Keith pressed.

“Oh, a number of reasons.  First, everyone likes to be asked their opinion. Judges are people, just like the rest of us, and they like to tell the country what they think—especially when what they think will impact on how the rest of us live. Also, everyone likes a second chance. When the U.S. Supreme Court upheld the Affordable Care Act, many pundits believed that the Justices, and particularly the Chief Justice, did so to protect the future of the Court at a time when the president was saying that all power should be concentrated into the hands of the executive branch. The Chief Justice upheld the law and ruled with the government, and then just eighteen months later the government announced that a domestic terrorist had planted a bomb in the Supreme Court Building and wired the building with explosives. They then closed the Supreme Court Building and suspend all pending cases until it could be cleared of all threats, as a matter of ‘national security’. That was more than three years ago.  Since then the doors have been locked and guards have been posted in front of all entrances to the building, and the Chief Justice has been at home playing golf and reading law journals. The Chief Justice didn’t speak up for the Constitution when he had the chance, and soon after the president stripped him of his right to speak at all. Most of us would give a great deal to have a do-over for our mistakes, but very few of us ever get that opportunity.  That is exactly what this suit is for the Court—a chance to speak for the Constitution, to speak for themselves, and to once again assert their authority as a separate but equal branch of government, as the Founding Fathers originally intended. I think they’ll hear the case; and I think we have an excellent chance of winning.” He turned back to Kris, “But you need to be prepared for the consequences if we don’t. You probably need to take some time to talk to your brother and really think about this before you go any further.”