41

Judge Thea Solberg had been appointed to the bench at age sixty-two and was now approaching the mandatory retirement age of seventy. She was diminutive (it was rumored she sat on a pillow to see over the bench), quirky, and energetic. Her lean, angular form was covered by white Norwegian skin, her thin face framed by straight blonde hair. She wore bifocals over pale-blue eyes—eyes that could drill a hole through renegade lawyers. She ran, by all accounts, a tight ship.

Her life and love was the law. She had taught constitutional law at William & Mary for nearly thirty years before taking the bench. She specialized in writing law review articles about arcane aspects of the Constitution that famous professors at places like Harvard and Yale ignored. If you wanted an expert on free speech, you went to the Ivy League schools. But if you wanted to know about the Article 6 clause prohibiting a religious test as a qualification to any office or public trust under the United States, then Professor Solberg was your scholar.

A few minutes before she took the bench, a clerk came out and plopped down a large pile of papers with yellow stickies jutting from the side. The clerk disappeared out the back and reappeared a minute or so later with a large cup of coffee that she placed next to the papers. The bailiff then announced that court would come to order and everyone stood.

Judge Solberg breezed in the back door, pleasantly asked everyone to take their seats, and climbed into her chair behind the bench.

She peered out at the courtroom, taking in the spectacle. “Looks like we have a full house today,” she announced. “Probably some kind of fire code violation. We have a few rules here for the purpose of decorum, and you should know that I’m a stickler for rules.

“If there’s any talking from the gallery, I’ll have the marshals escort you out. I don’t allow people to run in and out during the proceedings. If you choose to stay after I complete these remarks, then I’ll assume you’re staying for the entire hearing. Those of you standing along the back walls, this is going to be quite a long hearing and you’re welcome to have a seat on the floor when you get tired.”

She looked at the clerk and asked him to call the case. When he was finished, Judge Solberg explained she would be hearing arguments on the defendants’ motions to dismiss. She told the lawyers that she had read every word of every brief—so there was no use repeating those arguments—and invited defense counsel to begin.

Dylan Pierce argued first, addressing the Feres Doctrine. His voice sounded like a polished radio show host’s, and he spoke with great confidence, as if it were just a matter of formality for the court to enter judgment on his behalf. It would create absolute chaos if military members could file suits arising out of combat activities, he argued. Commanders would be hesitant on the battlefield, worried about losing their savings accounts and homes. Courts would be second-guessing military decisions. Other military officers would be called as experts by plaintiffs to testify, pitting one commander against another. To avoid all of this, Congress had granted generous military pensions and death benefits for men and women like the SEALs who bravely gave their lives in Operation Exodus. He actually spelled out the amount of money that the Anderson family had already received, totaling more than three hundred thousand dollars.

He argued the case law in great detail, emphasizing the Stanley case, which held that a serviceman could not file suit even when the government had secretly administered doses of LSD to that serviceman as part of an experimental program.

Lastly, he pointed out that the test under the Feres Doctrine was not whether the serviceman was technically employed by the military at the time of his death, as opposed to the CIA, but whether the injury was “incident to service.” Troy Anderson was part of SEAL Team Six, he reported to the command structure for SEAL Team Six, and he had received the benefits of being a serviceman. His tragic death was certainly incident to his service as a member of the military, and the case should therefore be dismissed.

It was, Paige thought, a performance worthy of Pierce’s exorbitant hourly rates. Judge Solberg paid rapt attention, jotting down notes and sipping her coffee. She occasionally twisted her face into a look of quizzical skepticism but for the most part seemed unsurprised by what Pierce said.

When Kyle Gates rose to speak about the state secrets doctrine, Paige felt her palms go sweaty and heard her heart beating in her ears. She still couldn’t believe Wyatt had passed this argument to her on less than a day’s notice!

By comparison to Pierce, Gates seemed choppy and strident. Pierce had been conversational, but Gates had a military cadence and an intense tone that made it feel like he was lecturing the court. According to Gates, the classified and unclassified affidavits he had submitted spelled out in great detail why this case would result in disclosure of state secrets detrimental to national security.

The state secrets doctrine had been part of the country’s jurisprudence for over two hundred years, he said, dating back to the treason trial of Vice President Aaron Burr. Just up the road in Richmond, Chief Justice John Marshall had acquitted Burr. During that trial, Burr’s lawyers had tried to subpoena papers from President Thomas Jefferson, but Jefferson argued that it was his executive privilege to decide what papers should be produced and what papers should not be produced so as to protect state secrets.

“And two hundred years later, in the case of El-Masri v. United States, the Fourth Circuit Court of Appeals, sitting in the same city, threw out the case of an innocent man who had been wrongly captured by the CIA during the Bush administration and allegedly blindfolded, drugged, and tortured. In that case, the director of the CIA submitted two sworn affidavits just like the ones I have provided, explaining why a trial might expose state secrets about the CIA’s interrogation program. That case was dismissed, and this one should be as well.”

Gates took his seat, and there was a stir of anticipation in the courtroom. The defense lawyers had done fine, but people hadn’t crowded into the courtroom to hear the high-paid lawyers from D.C. recite predictable quotes from prior cases. They had come to hear the irascible Wyatt Jackson, and the air became thick with tension as the old man rose, buttoned his suit coat, and stepped grandly to the lectern.

“I remember the Aaron Burr case,” he said. “I believe I was a young lawyer at the time, and Your Honor was probably still in law school.”

Though she probably tried to suppress it, Solberg’s mouth twisted into the faintest hint of a smile.

“And if I remember correctly, Chief Justice Marshall, may he rest in peace, decided that the subpoena for documents could be issued to the president despite Jefferson’s protests. Marshall vowed to give some deference to Jefferson’s office and avoid what he called ‘vexatious and unnecessary subpoenas,’ but he didn’t just defer to the president and dismiss the case. His ruling was significant because it made clear that the president, like every other citizen, was subject to the law, not above the law. That’s why we’re here today, Your Honor—to uphold the rule of law. And you should reject the invitation from my distinguished opponents over there to rule that the courts have no authority in matters of foreign affairs and that we should just trust the executive branch to do the right thing.”

Wyatt pulled himself up to his full height, grasping both sides of the podium without a single note in front of him. Paige had already been impressed that he knew something about the Aaron Burr treason trial. Maybe she could relax a little.

“But we are here precisely because this president cannot be trusted. We are here because we believe this president, in conspiracy with the director of the CIA and her own chief of staff, sent Troy Anderson on a dangerous mission knowing he would die. She did it for political reasons, and it is insulting to both this court and every member of our armed services to suggest that we are not even allowed to question the president or her henchmen about this. That we are required to simply take their word that things have been done lawfully when it comes to matters of foreign affairs. That is a good argument for dictators and despots but not one that should sit well in a constitutional republic, one with checks and balances that require the president to be accountable under the law just like everyone else.”

Wyatt paused and took a deep breath. And Paige could sense that the SEAL team members and their families, sitting right behind her and hoping to see politicians held accountable, were ready to stand up and applaud. It made Paige sit up just a little straighter to be on Wyatt’s team. He had certainly thrown down the gauntlet. He was right about one thing—even if they lost, they would go down swinging.