43

After an hour-long recess, Judge Solberg returned to the bench. She had told everyone that she would rule from the bench and follow it up with a written opinion a few days later. Paige had spent the recess preparing Kristen for the worst. She reminded Kristen that even if they lost, they could appeal this case to the Fourth Circuit and ultimately to the Supreme Court.

Solberg studied her handwritten notes, then surveyed the courtroom. “This is an important case, and it raises substantial constitutional issues,” she began. She adjusted her glasses and peered down at her paper. “The inquiry today pits the role of the courts in our search for truth against the role of the executive branch in keeping this nation secure. As plaintiff’s counsel has pointed out, the president cannot just say ‘Trust us’ and expect the court to drop the matter. On the other hand, this court must be careful that by adjudicating the case, it does not expose military matters that might jeopardize national security.

“I will begin my analysis with the question of whether the Feres Doctrine prevents this case from going forward. As defense counsel has pointed out, the Feres Doctrine is an absolutely critical part of our national security because it keeps the courts from second-guessing military decisions made on the field of combat and also because our troops are provided benefits in other ways. And as defense counsel has also noted, the ultimate test is whether the death of Mr. Anderson was incident to military service.”

As Judge Solberg delivered her opinion, Paige jotted notes. She was so tense that she could hardly write. She couldn’t bring herself to look up as the judge continued.

“The court finds that the Feres Doctrine does not apply under the unique facts of this case.”

There was a murmur in the rows behind Paige. She heard someone whisper a forceful “Yessss.” For the first time since the judge had started reading her opinion, Paige looked up.

“The integrity of the courts requires that litigants not be allowed to make a claim in legal proceedings that is inconsistent with what they claim elsewhere. If the SEAL team had gone into Yemen as an act incident to war against the Houthis, they would have been violating our nation’s laws. Instead, the president and CIA director sent them in as CIA agents—civilian operatives in a country where Congress has not declared war.

“The government cannot have it both ways. They cannot say the action was lawful because the SEALs were acting as civilians but then come into this court and claim they were actually working for the military. Accordingly, I am denying the motion to dismiss based on the Feres Doctrine.”

Judge Solberg flipped a page, and Paige stole a glance at Dylan Pierce. He had leaned back in his chair and was no longer taking notes. He eyed the judge with thinly disguised contempt, his look promising that she would be reversed on appeal. But the judge didn’t seem to notice. She had already moved on to her second point, the most important roadblock in the way of justice for the Anderson family.

“But there is a second matter.” Solberg’s voice was conversational but firm. Her ruling might get reversed, but there was no doubt that she believed she was doing the right thing.

“The court finds that the defense has raised a valid claim of state secrets,” she said.

Paige felt the roller coaster drop and her stomach lodge in her throat. They had lost on the issue she had argued. Though she had expected it, she still felt like she had just been run over.

“I have considered both the unclassified and classified declarations from Director Marcano. There is no doubt that litigation of this case will touch on matters that are considered state secrets.”

Solberg paused, surveyed the lawyers, and then continued. “But that doesn’t end the inquiry. The test is whether the case can be fairly litigated without resorting to state secrets or whether the state secrets are so central to the case that moving forward will threaten national security. This court is not required to take Director Marcano’s word for that. At the very least, in a case that calls into question the integrity of the very man who signed the affidavit, this court should try to find a way that the lawsuit can proceed while keeping privileged information from being disclosed.”

Paige’s emotions took another dramatic swing. What was Solberg saying? Were they going to be allowed to proceed?

“For example, the plaintiff may be able to prove the allegations set forth in her complaint without reference to any state secrets at all. She could do this by using nongovernmental witnesses to show that the president or her chief of staff or the CIA director knew that this mission was doomed. Perhaps there are documents that don’t contain state secrets but will help prove the case.

“And as Ms. Chambers argued, we debrief missions like this all the time without disclosing classified material. Nobody thinks that Secretary of State Clinton violated national security when she talked about the discussions leading up to the bin Laden raid and how she argued to move forward with the raid while others were against it. Isn’t that the same kind of thing we’re talking about here?”

Another flip of the page as the judge’s remarks picked up steam. “On the other hand, the defendants may be right that they can only show us what the president knew by exposing state secrets about CIA operatives. But how will we know any of this if I just dismiss the case?”

She let the question hang in the air for a moment and Paige let out a breath. Out of the corner of her eye she saw Dylan Pierce stand at his counsel table as if he wanted permission to answer the questions the judge was posing.

“Sit down, Mr. Pierce. I’ll give you a chance to respond in a moment.”

Pierce sat, but he wasn’t happy about it.

“This court has a duty to proceed as far as possible in its search for the truth. The court will therefore grant the plaintiff the limited right to conduct discovery and depose witnesses. However, for any witness who is now or has in the past been a government employee, those depositions will be done under seal in my closed courtroom, and I will preside as judge. Defense counsel may object to any question they feel violates state secrets and I will rule on it immediately.

“Mr. Jackson and Ms. Chambers, let me make this clear. If I find that matters of state secrets pervade the depositions, I will have no choice but to dismiss this case. Is that understood?”

Wyatt stood immediately. “We understand, Your Honor.”

“Your Honor.” Dylan Pierce was standing again.

“Yes, Mr. Pierce.”

“In the El-Masri case, the court noted that allowing litigation when the executive has asserted a state secrets privilege may force disclosure of the very thing the privilege is designed to protect. In light of that, we would ask you to reconsider or, at the very least, mandate that anyone who attends these closed depositions have top-level security clearance.”

Solberg thought about this for a moment. “I won’t reconsider my ruling. But I do think it’s reasonable that anyone attending these depositions, including the lawyers for the plaintiffs, have clearance to view classified information. I don’t think top-secret clearance is necessary, and I will order the government to expedite its review of any clearance applications that need to be filed.”

“I object,” Wyatt said. “The court has already said that we won’t be getting into state secrets in these closed proceedings, so—”

Solberg held out a hand. “No, no. I think he’s right, Mr. Jackson. At the very least, plaintiff’s counsel and the court reporter should have security clearance. I’m instructing the government to process security clearance applications for all of you expeditiously.”

Wyatt started to speak again, but Solberg tilted her head and warned him off. “If I were you, Mr. Jackson, I would be grateful for today’s ruling. I’ve gone as far as I can go.”

“Thank you, Your Honor,” Wyatt said, sitting down.

Under the table, Kristen reached over and squeezed Paige’s hand. SEAL Team Nine was still in the game.

That afternoon, Wyatt took a nonstop flight from Norfolk to New York and did the cable news tour. He was his usual bombastic self, crowing about the court’s ruling and promising the good people of America that he would get to the bottom of what had happened that fateful night when the SEALs died.

Paige went to Kristen’s house and helped put the boys to bed. Afterward they sipped glasses of wine in the living room sitting face-to-face on the couch, their legs curled under them. They swapped stories about the magnificent events of the day and made fun of Dylan Pierce and Kyle Gates and Wyatt Jackson. They thanked God for Daniel Reese, and Paige made a note to call him in the morning. And most important of all, they raised their glasses in a toast to the boys from SEAL Team Six.