The Chosen (16 page)

Chapter
22

F
orty copies of Julian’s brief on the merits of Michael and Jeff’s case were stacked in neat piles on his desk.  Forty copies—that was the Supreme Court requir
ement—had to be filed with the C
ourt within forty-five days after the Justices agreed to hear the case.  

Although Julian had filed his request for the Court to hear the Linton case under the provisions of original jurisdiction, he had not expected the
J
ustices to agree to do so. The motion was actually a test balloon of sorts to see whether he could even get a response that would indicate whether the Court would be willing to convene to hear the case at any point.  By requesting that the Court affirm its jurisdiction over the suit, he would have a better idea of what their chances were on appeal.  Even though he had never indicated so to Kris and Keith, Julian had actually expected the Court to reject his request to hear the case directly, which would necessitate that he file suit in a lower court and work his way up. 

Of course, this speculation had all occurred prior to
The Line Up
. 
The Line Up
had brought so much pressure on the
Administration
that the Solicitor General not only did not appear to have any objection to the Court’s decision to hear
the case, Paul
Greely
also did not object to the Court’s determination that it had jurisdiction to hear the case directly. In a way, that was good—Julian was getting exactly what Kris and Keith had wanted. The Court would reconvene to hear this case on its merits, and they would rule once and for all on the
c
onstitutionality of the NDAA. On the other hand, the ease of this process made Julian suspicious and uncomfortable. This had all been a little too easy, considering that the Court had not met in
more than
three years. All nine
J
ustices had unanimously agreed to hear the case
, and
the Administration seemed eager for it to go to court.

Immediately after the Justices agreed to hear the case
President Quincy, the head of
Homeland Se
curity, the U.S. Attorney-General,
and Vice President Candace Peters
began
making the talk show rounds with a unified message.
T
hey emphatically denounced
The Line Up
as a hoax—the work of a sophisticated network of domestic terrorists, who
,
together with foreign agents working on U.S. soil, were attempting to subvert the U.S. government an
d discredit the Administration.
They asserted that
there were no more than a few hundred detainees—all of whom were dangerous threats to the safety and sovereignty of the United States. No exact
number
of detainees was ever
put forth
during any of these interviews—the
request
for such a number was
routinely denied using
the Adminis
tration’s primary talking point:
for matters of national security
the Administration could not release an exact figure.
However, the Administration claimed that w
hatever the number was, it was low
,
and only the most dangerous threats had been indefinitely detained. To put these people on trial would be the equivalent of holding trials for the Gitmo detainees in New York City—it would endanger the public and make a mockery of the courts. 
Furthermore,
the crimes of these detainees, the few that existed, were so egregious that after the government
had
spent
millions of dollars
on trials
and allowed these men and women to make
a
spectacle of the
United States
system of j
ustice
, there would be no question of their absolute guilt or the moral correctness of their detention
s
.

The Administration’s other talking point, repeated by Quincy and Peters, and Press Secretary Null, was that the Administration was highly supportive of the Supreme Court’s decision to rule on the constitutionality of the indefinite detention provisions of the National Defense Authorization Act. They were positive that their actions were fully in keeping with the spirit of the U.S. Constitution
,
and they would fully support the Court
’s
findings in this matter. That last part made Cicchetti very nervous. He was not a man who believed in conspiracy theories, but this whole case had the feeling of a set up.  As a constitutional attorney, he knew full well that this ruling was going to set precedent for law in the U.S. for decade
s,
and possibly even the next century. Quincy and his cronies were a little too confident and a little too eager. To Cicchetti that signaled that they had already fixed the outcome—in their minds at least. But as an experienced attorney, Julian also knew that once a case is before a judge, or in this case nine judges, any outcome is possible.

He had
carefully
written hi
s brief on the merits
.  As he had already explained to Kris at the outset, he was not arguing Michael
’s
or Jeff’s innocence. That would be determined by a criminal trial—if they could get to that point. Julian was arguing only that the NDAA was a violation of the U.S. Constitution. As he wrote and worked and labored and thought, he wondered frequently how he, in fifty pages, could better explain what the authors of the Bill of Rights had laid out beautifully in two paragraphs.  And as he worked on his brief, he kept those two paragraphs, the
F
if
th and
S
ixth amendments to the Bill of R
ights of the Constitution of the United States of America, on a notepad in front of him at all
times, rewritten by his own hand in his own penmanship so as to cement those words f
irmly in his mind.  Now he had read and reread
them so
often
that he could have almost recited them from memory:

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

True,
Cicchetti
had booked Kris on every talk show he could find so that she could tell her story of how her good, kind, law-abiding husband and her “nicest guy you ever met” brother-in-law had been unjustly detained by the U.S. government without charges. Those talk show appearances
were good for public sympathy.
Kris’ attention and notoriety had certainly been a motivating factor in the Administration’s cooperation in allowing the case to come to court. At the end of the day, however, if the Administration could provide
positive
proof that Michael was a serial killer who cannibalized his victims, that evidence would not change the basic argument that he and Jeff and every other detainee deserved a trial.  They had a legal right to face their accusers, to have legal representation, to confront the evidence against them
,
and to present their own evidence to counter it. This was the crux of the argument—whether he was the saint that Kris portrayed him to be or a monster,
t
he
Constitution guaranteed him the right to
a trial by a jury of his peers.  Every page had been an effort to make this point—hopefully he had made it well enough that the Court would uphold the rights afforded to Americans by the Constitution—no matter what
kinds
of side deals the Administration was trying to cut.

Now that he had outlined his own case,
Julian
had to wait for the Solicitor General’s response
,
and he was curious to see how the Administration would defend its actions. When the response was filed, he called Kris and Keith into his office to share it with them.

“I have been
very
interested to read the Administration’s arguments in support of indefinite detention, partially because when the original suit was brought by the original plaintiffs in 2012  the first federal judge issued the injunction barring enforcement,
and
the government
never presented
an argument supporting indefinite detention.  The argument at that time was that since no one had been detained under the provisions of the law, the plaintiff’s attorneys could not accurately argue who might be in danger or what the scope of the indefinite detentions might look like. It was very much
a
“we have to pass it to find out what’s in it” kind of argument.  Now there have been a number of
detentions—although the Administration argues vigorously about what that number is, so they can
no longer
use the ‘don’t knock it until we
’
ve tried it’ argument
. T
hey
now have been forced
to defend their actions.”

“What is the argument?” Kris was listening intently because she wanted to know whether the Administration’s reasoning might seem logical to an average American. As passionately as she wanted to get Michael and Jeff released, she also knew that many of the people who were watching her interviews and listening to the arguments back and forth about NDAA would not have family members who had been detained. For most of these people, the tendency would undoubtedly be to side with the Administration, and if the Administration appeared to have a sound case, public opinion, which currently appeared to be with her and her family, might quickly swing the other way.

“Well, it’s very interesting.
First, they argue that the Fifth and S
ixth amendments do not apply because of the clause excluding ‘a time of war or public danger.’
The Solicitor General’s response reads that since 9/11 our country has been under attack from enemies at home and abroad and these attacks have necessitated many safety an
d security measures, including s
ection 1021 of the NDAA.  The war on terror is an on-going battle fought on many battlefields and many fronts.  Since combatants can use any weapon, including hate speech and anti-American ideology, to bring down our society
,
and
,
since the newest threat to the security of our nation is ‘home-grown domestic terrorists’ and ‘radical adherents to narrow religious systems and ideologies who may have many sympathizers in the community’
,
the only effective course is to utilize indefinite military detention. Section 1021 allows these combatants to be detained until the end of hostilities. If the Administration ever determines that these anti-American forces have been sufficiently routed
so
that these detainees
can be reintroduced into society without posing a further threat, the Admin
istration can release them at its
own discretion. 

“
The second argument is that the jury system and the system of trials was not set up to deal with war-time emergencies or national terror threats.  To have to provide specific evidence of actions committed by detained persons is unworkable because many of these persons have been detained before they ever were able to actually commit an act of violence. The detainees have demonstrated a gross disregard for the United States government, for its people and its laws. They have demonstrated a desire to act in a manner injurious to the American way of life.  The burden of proof requirements that a trial places on the government might obscure the larger issue of the ill-intentions of these people and might confuse juries into acquittals
,
simply because the targets have not committed a
specific
act of terrorism. Th
is, in turn,
might lead to the release of highly dangerous targets simply because the jurors did not recognize that actionable evidence of a terrorist act is sometimes not as important as intent to commit such an act.”

“So what they’re saying is, ‘If we have to put these guys on trial we can’t actually show you where they have ever done anything wrong, so instead we are just going to lock them up forever because we are pretty sure that in the future they will do something. We’re just getting them before they have a chance to get us,
’
” Keith interjected.