They sat in her office—this particular mission, David had determined, could best be performed in person. With as much dispassion as he could muster, David asked, “Because we have the death penalty?”
“Among other reasons,” she said, her tone as clinical as David’s. “That can’t surprise you. If Arif wants to save her life, you know what she can do.”
David kept his expression blank. “Hana insists there’s nothing she can give you.”
“Too bad.” A note of annoyance crept into Sharpe’s voice. “In her position, she should consider being a little more forthcoming.”
“Being innocent,” David responded, “keeps Hana from finding a life sentence quite as enticing as you’d think. It also accounts for her inability to help you.”
“There’s time yet,” Sharpe said. “As you know, I don’t decide whether we seek the death penalty—I merely recommend. In this case, our office’s recommendation will be to seek it. If you have something more compelling than the usual—that she’s a mother, or has never before murdered a prime minister—you should address it to the attorney general, asking to appear before the committee of the Justice Department that makes the final decision.” Sharpe’s tone became arid. “You might explain why directing a violent act that guarantees another decade of violence, perhaps thousands more dead Jews and Palestinians, fails to qualify Ms. Arif to die herself. Telling
me
that is a waste of time.”
“Then I won’t bother,” David answered. “But I have something else for you.”
Removing Hana’s demand for information from his briefcase, David passed it across Sharpe’s desk. As she began to scan it, a subtle freezing of Sharpe’s expression betrayed her anger. She placed the document to one side with a curious fastidiousness, as if ridding herself of a dirty tissue. “Very detailed. The Chinese would probably like this information, too. Or perhaps Osama Bin Laden.”
David closed his briefcase. “I hope you don’t start saying that in public. I’d have to ask for a gag order, or perhaps a change of venue.”
Sharpe contrived to smile. “Don’t worry, David. I’m saving it for the judge.”
For the first two weeks after the arraignment, David confined his public comments to rote recitations of Hana’s innocence—that she was a mother, that she had no connection to terrorists, that the evidence against her was anomalous—while waiting for the flood of publicity to recede. It barely did. Then, on the morning after a female suicide bomber, also a mother, killed twenty wedding guests at a hotel in Amman, Jordan, David consented to grant Meredith Vieira’s request for an interview on the
Today
show.
It was harder than it looked, David decided, to sit alone in a TV studio, talking to the eye of a television camera while an interviewer’s voice squeaked through his earpiece. Vieira was well-prepared; she began by repeating, and challenging, David’s prior statements on Hana’s behalf. “The ranks of terrorists,” she said, “include mothers, fathers, brothers, and sisters. It’s not hard to conclude that your client agreed to enter this plot because she never expected Jefar to survive, and because her own life was not at risk.”
The same thought had occurred to David, many times. “Then why,” he countered, “is there absolutely no evidence that Hana Arif is affiliated with Al Aqsa—or any group that carries out acts of terror? You don’t just walk out of a classroom, Meredith, and set yourself up as the handler of two assassins.”
“Maybe that could explain why—if the indictment is correct—your client made the mistakes she did.”
“Then it would be a real mistake,” David responded swiftly, “to make her the linchpin of an assassination plot, wouldn’t it? It’s hard to believe that people smart enough to make the components of a complicated conspiracy disappear without a trace would entrust it to an amateur.”
Abruptly, Vieira shifted course. “You’re opposing extradition to Israel. Do you believe that Israel’s justice system can’t treat your client fairly?”
David considered his words. “I have great respect for Israel, and for its system of justice. But Hana Arif is a Palestinian, accused of conspiring to kill Israel’s prime minister. The charge against her resonates with sixty years of bitter history, many deaths on both sides, and the fact that the Israeli populace has itself suffered from suicide bombings for far too long. Under these circumstances, no people, anywhere, could be expected to view Hana with dispassion.
“Why ask that of the Israelis, when there’s no fairer system of justice anywhere than in America? This is where Hana should be tried.”
Beyond the camera, David saw Vieira’s image on a split screen next to his, her eyes expressing curiosity and compassion. “A last question,” she said. “Many people around the country, David, wonder why you’ve taken on her defense. You seem to have forfeited a promising future in politics, you have no public record of affinity for the Palestinian cause, you admired Prime Minister Ben-Aron, and you are, yourself, Jewish. Is it simply that you knew Ms. Arif in law school?”
Briefly, David paused, marshaling the answer he had so carefully rehearsed. “It’s not simply that I once knew Hana Arif—it’s that I
believe
her. Just as I believe that the case against her makes no sense.
“Believing these things, what else could I do? The essence of American law is the presumption of innocence. As the historic victims of prejudice, discrimination, and worse, Jews know that better than anyone.”
David paused, gazing into the camera as if it were the eyes of a juror. “I’m reminded of the words of a German pastor who died in one of Hitler’s concentration camps: ‘First they came for the Communists, and I didn’t speak up, because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up, because I wasn’t Jewish. Then they came for the Catholics, and I didn’t speak up, because I was a Protestant. Then they came for me, and there was no one left to speak on my behalf.’
“I’m no martyr—just a lawyer. But, for Hana, the principle is the same. And, unlike Nazi Germany, in America she gets an advocate to speak on her behalf.”
On the monitor, Vieira nodded, and then she thanked him through his earpiece.
This interview, at least, bought Hana some better publicity, and David a few approving phone calls—two from members of San Francisco’s Jewish community—amid the litany of abuse that filled his voice mail. But the message that most affected him, from Carole, was waiting for him at home.
He had not talked to her since the day she’d walked out; hearing her voice again, David felt an instant of hope. But the familiar softness of her tone was no harbinger of peace, only of her profound disappointment and distress, her painful connection to a man she could never live with but from whom she was not yet free. “You make me sad,” her message said. “I’m even sad that I can’t help you. But your comparison of this woman to Hitler’s victims was offensive, your claim that Israel can’t treat her fairly even more so.
“Please, David, get your mind off Hana Arif long enough to look at yourself in the mirror. Not for me—it’s too late for that. For your own sake.”
Erasing the message, David was seized by the desire to call her. But he could not, any more than he could expose his loneliness to Hana. He and Carole were finished.
The passage of a month brought David and Marnie Sharpe back before Judge Taylor in the closed hearing he had sought—the two lawyers and the judge met around an oval conference table in Taylor’s chambers, the only witness a court reporter who transcribed the proceedings. By the judge’s orders, the transcript, like David’s papers and Sharpe’s response, would be filed under seal, unavailable to anyone. Dressed in a black business suit, Taylor sat at the head of the table. The depth of her concern was as tangible as the tension between David and Sharpe.
“Before we deal with the information sought by Mr. Wolfe,” the judge asked Sharpe, “will there be any effort to extradite his client?”
“No,” Sharpe answered dryly. “Mr. Wolfe is getting his wish. The government of Israel has decided to leave this prosecution in the hands of the United States.”
David tried to assess the complex dynamics that informed this decision: Israel’s desire not to hold a dangerous prisoner; its hope of avoiding David’s demand for information; Sharpe’s intention to use the death penalty to pressure Hana into a confession. “All right,” Taylor said to David. “You’ve asked for quite a lot of information from the United States
government—much of it extremely sensitive—to which Ms. Sharpe takes great exception. Let’s hear your argument.”
David tried to strip his request to its basics. “The essence is plain enough. We’re entitled not only to information that exculpates Ms. Arif but to anything that is material to our defense.” David paused for emphasis. “Our defense, Your Honor, is that Ms. Arif was framed by whoever conspired to murder Prime Minister Ben-Aron. Anything the government has regarding the assassination may help us develop that thesis. Therefore, Ms. Sharpe should provide it.”
“That’s certainly succinct,” Taylor said crisply. “Especially considering that you’re asking for the sun, stars, and moon. Ms. Sharpe?”
Sharpe spoke rapidly, an edge creeping into her voice. “The court is right. Mr. Wolfe is not merely asking for materials generated by the FBI to support this prosecution. He wants files from the CIA and the Secret Service; records of our government’s continuing inquiry into the assassination; any communications on that subject between the United States and Israel; and the fruits of the surveillance he imagines we’re conducting inside Israel itself. Not only is this request ridiculously overbroad, but it seeks highly classified information—including the sources and methods the government uses to gather intelligence vital to national security.
“In short, Mr. Wolfe has concocted a defense in order to justify the attempted blackmail of our government. If any lawyer can do this, and drag our secrets into court, then America’s investigative and intelligence agencies might as well close up shop—”
“We surely don’t want that,” the judge said with a note of irony. “Not after 9/11. So what
is
Mr. Wolfe entitled to?”
“Our evidence regarding Ms. Arif,” Sharpe answered promptly. “Period. Whoever else may have conspired to murder the prime minister, the case against Arif is simple.”
“Too simple,” David retorted. “The question of who plotted to murder Amos Ben-Aron goes directly to whether Ms. Arif was involved or whether the plotters set her up. The prosecutor’s driving lack of curiosity excludes any inquiry into who actually planned the assassination, who provided the materials to support it, and whether the plot involved one or more Israelis responsible for protecting Ben-Aron.”
“This court is not the Warren Commission,” Sharpe protested. “It is not the forum for a massive inquiry into every conceivable aspect of this murder—no matter how irrelevant to Ms. Arif. Mr. Wolfe is curious about everything but the case against his client.”
David kept his eyes on Taylor. “Which comes down to Ibrahim Jefar,” he said sardonically. “Taken at his word, he has no firsthand knowledge as to any of these questions, or even about Ms. Arif. I could cross-examine him all day, and he couldn’t help me. And yet, in Ms. Sharpe’s view, Jefar’s story entitles the prosecution to withhold anything that could be useful to my case.” David felt a surge of real anger. “If other branches of the government—including the CIA—have what Ms. Arif needs to mount a defense, they should give it to her. This so-called blackmail is nothing more than an insistence on justice.”
The judge raised her eyebrows, then abruptly asked Sharpe, “Is there any middle ground between your rather narrow sense of obligation and Mr. Wolfe’s presumed desire to dismantle our intelligence apparatus?”
The phrasing of the question seemed to put Sharpe off balance. In a grudging tone, she answered, “I’m prepared to ask the FBI and our intelligence agencies for any information potentially exculpatory to Ms. Arif— excluding the sources and methods used to gather it. But that’s as far as the law requires us to go.”
“ ‘Exculpatory’ according to whom?” David asked her. “Does that include information regarding a breach in Israel’s protection of its own prime minister?”
“Not unless it relates to Ms. Arif.”
“How can you know that it doesn’t, Marnie?”
Judge Taylor held up her hand, demanding silence. “You should worry about that, Ms. Sharpe. I do. I appreciate the sensitivity of what Mr. Wolfe is seeking, much of which may not end up helping Ms. Arif.
“But this is a case where—for once—it’s no exaggeration to say that the world is watching us. If you withhold information that becomes material to Ms. Arif ’s defense and that fact emerges later, any conviction could be thrown out. Unless Ms. Arif is no longer with us, which would create a somewhat larger problem.” Leaning forward, Taylor admonished Sharpe. “Threats to national security are not confined to leaking secrets. A real or perceived injustice, approved by this court, would not only tarnish this country’s image but might provoke fresh violence, here or overseas. I won’t be part of that. And I won’t let you be.”
Surprised, David realized that the weight of Judge Taylor’s responsibility was working in Hana’s favor. “So here’s my order,” Taylor continued, speaking slowly and clearly. “The government will produce to the defense any materials in its possession that may exculpate Ms. Arif, or that relate to the assassination of Amos Ben-Aron. With respect to information that is
classified or impacts national security, Mr. Wolfe will review it under the following conditions:
“First, the documents will be maintained in a secure room supervised by the FBI.