60

VIRGINIA BEACH, VIRGINIA

As August drew to a close, Paige and Wellington spent every spare moment working on their Supreme Court brief and analyzing the justices. They researched prior decisions and backgrounds, looking for hints at how the justices might rule on the state secrets issue.

Some of them were easy. The three justices in the Court’s conservative bloc had never met an alleged criminal that didn’t belong behind bars. In the balancing act between security and liberty, they came down hard on the side of law and order. In this case, they would be reluctant to pull back the curtain on the CIA, even if doing so meant they could embarrass a Democrat in the White House.

Justice David Sikes, one of the younger justices on the Court and former White House counsel for George W. Bush, had defended the CIA’s interrogation program under Bush and would certainly defend the agency now. Justice Barton Cooper, a seventy-two-year-old conservative appointed by Bush Sr., was a former Texas judge who had affirmed the death penalty dozens of times. The only justice with facial hair, he had been dubbed “the Beard” by the creatively challenged lawyers who practiced before the Court. The Beard wasn’t going to be in Paige’s and Wellington’s camp. Nor was the woman who sat to his immediate left, closest to the chief justice because of her seniority. Justice Kathryn Byrd, gray-haired, thoughtful, and quiet, could be counted on to vote with the conservative bloc every time.

There were four liberals who would probably help Paige and Wellington despite the fact that a win for SEAL Team Nine would be a loss for the Democrats in the administration. Justice Augusta Augustini, a brilliant jurist who had taught at Harvard Law and managed to pump out a novel every other year, would be an outspoken ally. So would the two veteran African American justices—Reginald Murphy, a former Innocence Project lawyer, and William Martin Jacobs III, a large man weighing in at almost three hundred pounds who had made a career arguing civil rights cases. Jacobs had been appointed by President Clinton, and the word around the Court was that he never wrote a word of his own opinions but had a knack for hiring Ivy League clerks who shared his crusading ideology and did all the work for him.

The fourth liberal was less certain. Justice Evangelina Torres was the Court’s only Hispanic justice. A former senator from California, she had been nominated by President Obama during his last year in office and confirmed by a Democrat-controlled Congress in the months following Hamilton’s election. Philosophically, Paige and Wellington thought she would side with them. But she had served on the Foreign Relations Committee during her days in the Senate and might be particularly sensitive to exposing classified CIA information.

That left two potential swing votes—Chief Justice Cyrus Leonard and forty-five-year-old Taj Deegan. Wellington was about 90 percent sure that the chief, given his faithful adherence to Supreme Court precedent, would not be willing to overturn the 1953 Reynolds case. And if Wellington was right, they could only win if they carried the vote of every liberal justice, including former senator Evangelina Torres, and also won over Taj Deegan.

It was a monumental challenge, and it didn’t help that Wyatt seemed disinterested and unprepared during their prep sessions. He didn’t grasp the nuances of prior case law and, in Paige’s opinion, kept making statements that sounded more like jury arguments than points of law that would sway seasoned judges.

The sessions became tense, and Paige exacerbated the problem by intentionally asking questions she knew Wyatt couldn’t answer. After one particularly poor performance inside his RV, Wyatt lit up a cigar, declared himself tired of the process, and said they should take a few weeks off so he could come back to the case with a fresh perspective.

“I think we need to practice every day,” Paige insisted. “There’s a lot to cover, and we only get one chance at this.”

Wyatt scoffed at the notion. “I work better under pressure. I won’t even remember anything I read a month ahead of time. Besides, I’ve got other cases.”

His attitude had long since worn Paige’s patience thin. It grated her that she and Wellington were working around the clock when the man who would actually argue the case had such a cavalier attitude.

“Have you even read these?” she asked, pointing to the black notebooks full of prior cases. She brushed away a stream of smoke from Wyatt’s cigar. She glared at Wellington for a second—I thought you said he never lit up inside. “Our entire case hinges on your argument, and you haven’t even cracked these notebooks.”

Wyatt shrugged and took another puff. “You don’t get it,” he said. “You actually think we can win this case?”

Wellington spoke up. “If we can convince both Justice Torres and Justice Deegan, we can win. Why don’t Paige and I just finish the brief and then you can read that and start there?”

“Because you don’t get it either,” Wyatt said. “I hate to break it to you two, but we stand no chance of winning this case.” He watched Paige swat away some more smoke, frowned, and snuffed out his cigar in a nearby ashtray. “We’re going to the Supreme Court, where we hope that we can somehow get five justices to say that we can take a few depositions. We’ll probably lose that argument, but even if we win, then what? Kilpatrick will deny and obfuscate and hide behind state secrets just like Marcano did. We’ve been at this for months, and we still don’t even have a clue whether the CIA told the president that the mission was compromised.”

“We’ve got the park-bench conversation,” Paige countered. “We’ve got a drone pilot who was told to lie.”

“How is the drone pilot even relevant? And the park bench? We have no idea what Marcano said, only what Kilpatrick asked him. They’ll both come to trial and testify that Marcano confirmed the sources were solid. Marcano will say they had this meeting before the National Security Council meeting so he could share details with the president’s chief of staff that he didn’t feel comfortable telling the whole team. Then where are we? If we ask what details, they claim state secrets.”

Like the smoke from his smoldering cigar, Wyatt’s brutal assessment hung in the air. It was the last thing Paige had expected. This was the same guy who always thought he could pull rabbits out of a hat and part the Red Sea. If he didn’t think they could win, what chance did they have?

“This case has never been about winning,” Wyatt continued. “This case is the Alamo. Those men knew they were going to lose but fought anyway because they were trying to rally people to something bigger.”

He had a beer on the table in front of him—another thing that bothered Paige about their prep sessions—and paused to take a sip. His eyes went from Wellington to Paige.

“Let’s face it; we’re going down. So I’m not interested in some legal nuance that might nudge one justice closer to a narrow opinion that allows us to take one more deposition before the case gets dismissed. I’m interested in using the Supreme Court argument as a platform to rile up this country and get the laws changed by Congress.

“Don’t you see what’s happening? Every dictator in history always had their own private army. The Roman emperors and the Praetorian Guard. Napoleon and the Imperial Guard. Hitler and the SS. And now our president has the CIA. Those guys are accountable to no one, and every time we try to hold them accountable, they claim state secrets and hide behind national security. They can kill anybody they want anywhere in the world without a court granting them permission beforehand or exonerating them of guilt afterward. They don’t even have to go to Congress to declare war.”

His voice had risen with emotion as he talked, and when he stopped, neither Paige nor Wellington uttered a word. Comparing the CIA to the SS was way over the top, but that wasn’t his point, and Paige knew it. She had been down in the weeds, but Wyatt was talking about something way bigger than a single Supreme Court case.

“So you’re right,” he said, his voice softer. “I haven’t read those cases. I’ll read them before I argue, but it’s not going to change what I say. My audience isn’t those nine people in the black robes; my audience is the American people. Because they don’t know what’s happening, and they’d better wake up real soon. I’ve spent my entire life fighting the government. I’ve seen innocent men railroaded by the system and good men and women lose their reputations even if they’re found innocent. We get scared because there are some legitimately bad actors out there, and we hand over our freedoms one at a time.”

Paige chewed on it for a moment, her frustration dampened by how much he cared. “Why can’t we do both?” she asked. “Why can’t we speak to the people through the Court? How else are we going to change the law if we don’t take advantage of our best opportunity?”

“I didn’t say I’m not going to try,” Wyatt said.

He took another swig of his beer and switched into storytelling mode. “Colonel James Bowie was sick in bed when the Alamo was attacked. They say that he was killed on his cot, firing pistols at the Mexicans who barged into his room, and when he ran out of bullets, he pulled out his knife. You know what Bowie’s mother said when she was informed of her son’s death?”

Paige shook her head. Of course she didn’t know.

When he answered his own question, Wyatt’s eyes were distant with admiration. “She said, ‘I’ll wager you didn’t find any wounds in his back.’”

Wyatt raised his beer in a solitary toast. “Here’s to going down fighting.”