42

Wyatt’s logic was simple. The United States was not at war in Yemen. “Unless, of course, I missed a declaration of war from Congress in the last few months.” Accordingly, it would be a violation of the U.S. Constitution and international law for U.S. military members to go on a mission in Yemen unless they were taking action against al Qaeda under the 2001 Authorization for Use of Military Force Act. But this mission was against the Houthis, and that’s why the Special Forces had been deputized by the CIA.

“The CIA does not employ servicemen; it employs civilians. They’re called operatives, not soldiers. And the CIA can insert its operatives anywhere in the world. On this mission, it happened to pick twenty operatives with Special Forces training and military background. But when they set foot in Yemen, they were civilians employed by the CIA, and that was an intentional choice by the president of the United States and the director of the CIA. It is the height of hypocrisy for them to say to the world that they were civilian CIA operatives but to say to this court that they were servicemen.”

“Let me interrupt you for a moment,” Judge Solberg said. It was the first time she had asked a question in the hour-long proceeding. “How do we know these men were acting as operatives for the CIA?”

Wellington was sitting behind the counsel table and passed a note to Paige. CIA benefits paid to families.

A scene flashed through Paige’s mind: Daniel Reese coming to Kristen’s house to personally deliver the news that Congress had approved CIA death benefits for Troy. In that moment, she realized that Reese had not merely been doing a kind act for a widow; he had also been slyly providing evidence that he knew could be used in these court proceedings.

Paige tried to get the note to Wyatt, but he ignored her. “We will prove it through the testimony of Director Marcano,” Wyatt said.

“Doesn’t that expose state secrets?” Solberg asked.

“The test is not just whether state secrets are exposed,” Wyatt responded. “The test is whether state secrets are exposed in a way that would jeopardize national security. The world already knows that the CIA deputizes SEAL team members for missions in countries where we are not at war. Dozens of books have been written about the bin Laden mission where the same thing was done.”

“Go on,” Judge Solberg said.

Paige pulled the note back and placed it on top of her own legal pad.

Wyatt closed his argument with a flurry. He turned to the SEALs and their family members in the first three rows and made a sweeping gesture. “The Feres Doctrine tells these good folks that the doors to the courthouse are closed for them. The Feres Doctrine says that equal justice under law does not apply if you risk your life to protect our country.”

He turned back to Judge Solberg, his voice low and dramatic. “I’m not saying that Your Honor should ignore the doctrine; I’m just saying it doesn’t apply to CIA operatives, because they’re civilians. Troy Anderson died as a civilian, defending our rights. His family should not be denied their day in court.”

Wyatt took his seat, unbuttoned his suit coat, and leaned over to Paige. “We’re on a roll,” he said. “Don’t screw it up.”

“Thanks.”

Paige stood, and she could sense that her argument would be anticlimactic. The reporters already had their quotes. Wyatt had been Wyatt, and he had brought raw emotion to the surface. But Paige had a role too. Wyatt was flash; she would provide substance.

“If I may, I’d like to briefly address the Feres Doctrine before I turn to the state secrets issue.”

Solberg nodded and Paige thought she detected a hint of empathy from the judge.

“A few days ago, a representative from the Joint Special Operations Command paid a visit to the family of Troy Anderson. The purpose of the visit was to give Kristen Anderson an additional check representing death benefits payable to families of CIA operatives. My client was grateful for the help, and I mention this only because our government has made a conscious decision to treat Mr. Anderson and his colleagues as members of the CIA for all purposes except for their arguments in this case. Interestingly, when Mr. Pierce told you the amount of death benefits the Anderson family has received, he conveniently left out the CIA death benefits because those benefits are proof positive, even without the testimony of Director Marcano, that the government is treating Troy’s death as the death of a civilian employed by the CIA.”

Paige watched as Judge Solberg made some notes. Then Paige transitioned into her state secrets argument. Relying heavily on case law and reading most of her argument, Paige made two main attacks.

First, she noted that the state secrets doctrine was an evidentiary privilege that only rarely required throwing out an entire case. Even if there were state secrets involved, the court should decide whether the case could proceed without disclosing sensitive military secrets or whether those secrets were so central to the case that any attempt to proceed would threaten disclosure.

“Our evidence does not rely on state secrets,” Paige said. “We are prepared to prove our case without disclosing any sensitive military information.”

There were ways the court could test whether state secrets would be critical in the litigation of this case, Paige argued. For example, Paige and Wyatt could be granted leave to take the depositions of the defendants in the presence of only the judge, and those proceedings could be kept under seal. The defense lawyers could object to anything that might involve a state secret. In other words, the court should dig deeper into the matter and not just throw the case out at the beginning.

And second, a state secrets defense did not apply anyway, because this mission was a thing of the past and the trial wouldn’t expose any secrets about future missions. The bin Laden mission, which also involved SEAL teams deputized by the CIA, had been talked about—no, make that bragged about—by the Obama administration ad nauseam.

“They provided a minute-by-minute account of what they knew in the Situation Room and how they knew it. And nobody suggested that the Obama administration was somehow divulging state secrets. That’s all we want—historical information about who knew what and when they knew it. Congressional committees investigate these types of things all the time.

“The court can protect the names of CIA operatives in Yemen. We just want to know whether the president and these two defendants had information before the raid started about the mission being compromised. If they did, that’s not a state secret whose exposure would jeopardize national security. That’s treason.”

There—she had said it. Paige had wrestled until two in the morning about whether she should be so bold as to label this treason. But in the heat of the moment, she had decided to show them that Wyatt Jackson wasn’t the only one who could provide a quote.