The Rule of Nine (3 page)

J
osh Root was a man who could always make time for an old friend. He and Nicholas Merle had come of age together in the counterculture trenches of the sixties. So when Root called him on his cell phone and asked to meet for a drink, Nick didn't think anything of it.

“The usual place?” said Nick.

“Why not?”

“Give me twenty minutes.”

Neither man felt comfortable venturing into the other's office. It was one of those unwritten rules of government etiquette.

The “usual place” was a quiet upscale restaurant in Columbia Heights, not far from the Capitol and the court building. The restaurant possessed a lounge dripping with old-world charm, dark wood, and equally dim lights.

Root arrived first, dropped off by his driver, who parked in a garage across the street and waited. He ordered a drink and took a seat at the booth in the back corner.

When it came to their meetings, Nick was usually late, mumbling something about circumspection and Caesar's wife. It was part of
Nick's cautious routine. He always had to be certain that no one had picked up on their private meetings, especially the ever curious rumormongers from the press corps. Josh always gave him a hard time about it. If they ran into each other at a cocktail party or an embassy fling, it was fine. But a one-on-one meeting in a bar would cause tongues to wag, not that anybody could do anything about it. Still, why end up in the gossip sheets?

A few minutes later Nick came through the door. He smiled the moment he saw Root. In many ways they were like night and day. Nick was as organized as Josh was chaotic. Nick was tall and slender, had a kind of stately appearance, and was reserved in his manner, whereas Josh was in your face. Josh's suits, no matter how well tailored or expensive, never seemed to fit his paunchy body. If Nick was the smile of life, Josh was the scowl. Yet with all their differences the two men remained fast friends.

Nick had been losing weight for the past several months. He didn't look good, at least not to Josh, whose mind was increasingly focused on thoughts of mortality. Nick was working too hard.

He ordered soda water, no twist, just ice. Nick never allowed alcohol to pass his lips during business hours. He took the glass from the bartender, headed for the booth, and took a seat on the other side of the table. “I thought you were out of town, back in Oregon.”

“I was until yesterday,” said Root. “I came back to take care of some business.”

“I should be out of here myself, but I'm interviewing some new clerks for the fall,” said Nick. “What a pain. Kids. Still, a couple of them are pretty bright.”

“Remember when we were that age?” said Root.

“I don't think I can remember that far back.”

“Sure you can. Berkeley, sixty-eight,” said Josh.

“Jesus, don't remind me. Seems like another age,” said Nick.

“It was.”

The two men had known each other for almost half a century. Their paths had crossed and careers intertwined so many times that Root could not begin to count them. He often wondered how it happened that two people following such different courses could end up on the same trajectory, as if they were touched by some stellar fate.

Nick had graduated from Berkeley. Josh was a senior at San Francisco State. They met at an antiwar demonstration during Vietnam, and in the months that followed sucked down enough tear gas and tossed enough bricks to form a kind of bond that usually coalesces only in the heat of battle.

After that Nick went on to law school at Yale. Josh graduated and then seemed to drop out of life. He disappeared for more than three years. It was what Josh came to remember as “his dark time.” He talked to no one about it, not even his friends. That he was able to pull himself out of it, resume a normal life, and come so far in the decades that followed was an absolute wonder. It seemed that he had gone off the track and somehow, as if by magic, had wandered back. Still, he often saw himself as a failure. The demons of his youth continued to haunt him. Only now they appeared distorted by the contradictions in his life and the looming horizon of death.

“Do you ever wish we could go back to the time?” said Josh. “You know, the smell of tear gas in the morning.”

“Are you kidding?” said Nick. He laughed.

“You don't miss the sense of commitment—the crusade?”

Nick thought about it for a second. “It had its place, but the moment has passed.”

“You're wrong. That moment never passes. The world is what we make of it. And we never lose our ability to change it for the better until we lose our grip on life.”

“You were always more ambitious,” said Nick. “I gave up trying to warp the world a long time ago.”

“I know,” said Josh. It was a major disappointment. Nick believed that radical thought was something you outgrew, like toys in an abandoned sandbox. To Josh it was a core element of his being, as essential as breathing.

“We've both been pretty damn lucky,” said Josh. “What is it they say? ‘It's better to be lucky than good.'”

“We've had this conversation before. Don't sell yourself short,” said Nick. “You are where you are because of talent. Otherwise you wouldn't have survived as long as you have.”

“I know. Luck is only as good as what you do with it,” said Root. Still, there was no way to get around the fact that his career rested on the pillar of an accident.

In the years after pulling himself together, Josh got a job teaching at a small college near Portland, Oregon. The problem was he was bored. He hated it. He talked endlessly about changing the political system. He often went on a rant at faculty meetings. He had failed to change the system from the outside and now all he did, it seemed, was complain. When one of the other faculty members laughed at him and told him he should run for office, Root filed papers in a bid for a seat in Congress. For months it was the standing joke on campus.

Josh found himself up against a seven-term incumbent from a solid Democratic district in the party primary. His opponent was so invincible that the Republicans didn't even bother to field a candidate in the general election. As far as they were concerned, the man was anointed.

Then two weeks before the primary, political fortune ran its errant fingers through the golden locks of Joshua Root. The incumbent did a face plant into his chicken Kiev at a fund-raiser in Portland. The man died of his heart attack before the peas had run off his plate.

As the only surviving candidate on the primary ballot, and with no opposition in the general election, Josh found himself with a ticket to Washington and a seat in Congress.

It was where he and Nick crossed paths once more. By then Nick had graduated from law school. After spending a year clerking for a judge on the federal circuit court in D.C., he was working in the office of the solicitor general. The two men renewed their friendship.

Cynical though he might be, Josh was learning how to survive in office. If the only way to effect political change was to turn to the dark side, Root was prepared to do it. He mastered the finer arts of duplicity. He seemed to thrive in the shadowed crevices that form the boundary between perjury and politics. He won two more terms in the House before a vacancy in the Senate yawned open before him. He ran and won.

It was there that the light of good fortune finally spread to encompass Nick. Four months after Josh arrived in the Senate, a vacancy developed on the Supreme Court. The president filled it with a nomination, but his candidate soon found himself in trouble. The nominee had a history of recreational drug use in his youth, something he had not disclosed to the White House.

As it turned out, the high court candidate was a native of Oregon. He sat on the Ninth Circuit Court of Appeals. As a matter of courtesy, the White House consulted the senior senator from the state. This was not Root; still, he was sufficiently inside the loop to have influence and to know how to use it. The question was whether the senior senator from Oregon would continue to back the man from his home state.

Root discovered that on the short list of other candidates for the appointment was the name Nicholas Merle. Nick was still working in the solicitor general's office. He was a dark horse for the high court, but he had a subtle advantage, and Josh saw it immediately.

Though Nick had argued cases before the Supreme Court, he had never handed down a decision or an opinion because he had never been on the bench. Consequently he was a clean slate with
no controversial baggage that might erupt in a battle during Senate confirmation. Caught in the crosshairs of a drug scandal, the White House was already gun shy, Root realized. Josh convinced his senior cohort in the Senate that they could no longer afford to support the current candidate. It was the political kiss of death. The nominee withdrew his name from consideration the next day.

That was more than fifteen years ago.

As Root sat there sipping his Amaretto in the dimly lit lounge, it seemed almost surreal. His friend who had sucked tear gas with him and thrown bricks at police on the barricades had now spent the past decade and a half on the United States Supreme Court while he himself served as chairman of the Senate Select Committee on Intelligence. Surely the gods must be laughing.

“I wanted to talk to you about something,” said Root.

“Shoot,” said Nick.

“Have you ever thought about retiring?”

“What?” Nick looked up at him.

“Fifteen years on the bench is a long time. You're not getting any younger. And now might be a good time to think about stepping down.”

“Josh, I know you had your own set of health issues. We all start to feel our own mortality at some point in life, but I'm not quite there yet.”

Most of Washington was aware that Senator Josh Root had serious health concerns even though his staff tried to keep a lid on the details. He had been in and out of Bethesda Naval Hospital as well as several other treatment facilities for the past two years. What troubled Root most was his increasing loss of short-term memory. Whether it had to do with the new medications or other factors Root couldn't be sure, but there were periods of time for which he could not account. He collected his thoughts for another pitch to his old friend.

“The president would be able to fill the vacancy with someone younger who would have a much longer tenure on the court,” said
Root. “And he would have no problem with confirmation since we control the Senate. If you wait until after the midterm elections, that may not be the case.”

Merle looked at him. “Has someone sent you here to ask me this?”

“No, of course not. I'm speaking as your friend. Look at yourself. Every time I see you, you've lost another ten pounds. You're working yourself toward an early grave. If you stay on the court until the current administration leaves office, and there is no assurance of a second term, you may find yourself in a partisan vice, unable to get off without changing the balance of the court. Think about it.”

“Go on,” said Nick, “I'm listening.”

“If you end up with a Republican in the White House, and if he gets two terms, you'll be well into your eighties before he leaves office, if you can live that long. Nick, I'm telling you as a friend, now is the time to think about getting off.”

“The administration has two more years on its current term,” said Nick. “That's if they don't get a second term.”

“Yes, but the confirmation process takes time. If you wait until the election is on top of us, there's no way to be sure that the president will be able to make the nomination, and that it won't get blocked in the Senate. Now is the time.”

It was a problem. Everybody knew how the game was played. It was why the balance on the court never changed, at least not in recent decades. There was a time when presidents made mistakes and unwittingly appointed moles from the other side of the philosophic divide. Now that was nearly impossible given the mind meld of interrogation to which candidates were subjected. So unless there was a sudden death on the court, which was rare, the balance was static.

Root realized, as did most observers, that the court was the only real agent for permanent and lasting change in the system. Its members were immune from the whimsy of voters and the re
straints of the ballot box. Once confirmed by the Senate, they were there for life. They could pick and choose the cases they heard and in this way dictate the policy agenda for the country. If the voters rebelled and elected a hostile Congress and president, the court could strike down any new laws that were enacted. A long-term change in the political balance of the court was tantamount to a revolution. It was why Roosevelt tried to pack the court with additional new seats that he could appoint during the Depression. Sooner or later the balance on the court would change. The only question was which direction the revolution would take.

L
ife has turned upside down in the eight months since the shoot-out in front of the naval base. I have trouble sleeping at night. Like a turtle shrinking into its shell, sudden noise has me compressing my neck until my head is between my shoulder blades. The doctor tells me that this will pass in time.

Who could have ever guessed that a chance meeting with a young woman, Katia Solaz, in a grocery store would have led her to become a client in a murder case, or that the quest for evidence in that case, and the search for a witness in Latin America, would have ensnared us in an attempted nuclear assault on an American military base. It is like an ongoing nightmare.

In the hours after the shootout, before the smoke had even settled, federal, state, and local police held a chaotic news conference not far from the scene. My name, along with Herman's, got mentioned as “persons of interest” already in custody. It didn't matter that the cops told the press we were not necessarily suspects.

In less time than it takes to boil an egg, the names Paul Madriani and Herman Diggs ricocheted from one cable news network to another. It was a story with global reach. Within an hour, people in
Hong Kong supping on Chinese glass noodles with chopsticks were seeing file photos of Herman and me on television. Bad news travels fast. News of a terror attack travels at the speed of light.

It began as a routine homicide case, the murder of Emerson Pike, a somewhat secretive old man who dealt in rare coins and whose past seemed shrouded. To the police the motive was obvious, theft. And when Katia was arrested with coins belonging to the victim in her possession, her guilt was self-evident. But then no one knew of Pike's background, except the federal government, and they weren't talking. In the end it was history that ensnared us, Pike's past, and that of Katia's grandfather, the old Russian, and the specter of the Cuban missile crisis.

When it was all over, the feds held us for five days. They picked up Harry and planted the three of us, Herman, Harry, and me, in separate cells at the federal lockup in San Diego so that we couldn't talk and compare notes. Then they interrogated us around the clock.

When I asked them if they were going to read me my Miranda rights and allow me to have legal counsel, I was told I was not a suspect, at least not yet. When I demanded that they either arrest me or let me go, they ignored me. After conferring with his lawyers, Thorpe then told me I was a material witness. He intended to hold me as long as necessary, for my own safety.

Because of the circumstances, they couldn't be sure whether they had all the perpetrators. If some of them were still at large, they might try to silence me. At least that was the story.

What they wanted was information. Short of violating attorney-client confidences, I told them everything I knew. At one point they brought in experts. Whether they were military or CIA wasn't clear. There were no introductions. The questioning went on until I lost track of time. Inside, with no windows, I couldn't tell whether it was night or day, or how long I had been there. I wondered about Harry and Herman and assumed that they were getting the same treatment.

Once they were certain they had squeezed us for every thing they were going to get, they brought Harry, Herman, and me together in a room. There Thorpe, flanked by a lawyer from the Justice Department in Washington, warned us in the strongest possible terms to say nothing to anyone about the events leading up to the assault on the naval base. In particular, they told us not to mention the explosive device. They told us that we could be charged criminally if any of the information we had given them turned out to be knowingly false.

Given the stress we were under, the multitude of details, and the fact that none of us could be sure whether our stories conformed entirely, truth was largely in the eye of the beholder. It was the sword Thorpe held over our heads to assure our silence.

Before they let us go, Thorpe warned us that the press was waiting outside. He offered to take us out through the basement and give us a ride. At first, I turned him down, but then he showed us the photograph.

It was a picture taken that afternoon of the area outside our law office. A sea of cameras and lights blocked the entire sidewalk in front of the Brigantine restaurant, near the arched entrance to Miguel's Concina where our office was located. There were satellite trucks double-parked on the street out front from one edge of the photograph to the other.

He explained that they were also camped out on the front lawn at my house, and that the media trolls had found Harry's apartment and Herman's place as well.

I asked about my daughter.

The FBI had taken Sarah out of the house that afternoon. She was fine. They were providing protection. They had a place for us, a kind of “safe house” near Balboa Park, until they could figure out some way to get the media heat off us. We didn't have to accept his offer. It was up to us. We could go to a hotel, but there was no assurance that the press wouldn't find us. It was clear Thorpe didn't want us in front of the cameras. There was no telling what we might say.

All I wanted was to see Sarah, hold her in my arms, and bury her head in my shoulder. We took him up on his offer. If we had to, we could make other arrangements later.

 

It was the beginning of a long nightmare. Harry, Herman, and I spent weeks hiding out in an office tower in San Diego. We shared two condos near Balboa Park, Sarah and I in one, Harry and Herman in the other. When the FBI tried to gather some clothes and personal belongings for us from home, stories on the cable channels with film footage showed authorities presumably removing evidence from the residence. There was nothing Thorpe could do to set them straight without revealing that he knew where we were, and that there was a reason for hiding us.

Work files from the office were shuttled by secretaries, driven by the FBI to the office across the bay. Local police ran cover in squad cars if the media tried to follow them.

Sarah was unable to tell her friends where she was living. She couldn't go anywhere without an FBI chauffeur.

It became impossible for me to show my face in court without being questioned by print reporters on the courthouse beat. The two times I appeared in the courthouse, a near press riot erupted when word got out that I was there. The FBI decided it was not a good idea. I was forced to step away from a case that was scheduled for trial. When the judge threw a fit, the U.S. attorney's office quietly went behind closed doors and got a continuance along with a substitution of counsel. The bottom line was I could no longer practice.

Over time the details of the shootout unfolded, a little more each day. Other names surfaced, most of them foreign sounding, all perpetrators who were dead. Slowly, like leaves from a tree in autumn, the satellite trucks in front of our office began to thin out.

The authorities made it clear that the investigation now cen
tered on those who had planned the attack. To their knowledge there were no other active perpetrators. The shooters and those carrying out the plot had all been accounted for.

In time the myth of the IED was unveiled. A news blackout was thrown over the contents of the truck, all part of the continuing investigation.

Thorpe was worried that if he simply went to the press and told them right up front that Herman and I were not involved, it might look suspicious. A sharp reporter would wonder what we knew that might cause the FBI to carry water for us. So instead, Thorpe posed one of his undercover agents as a journalist during a news conference. After all the hot questions were asked and answered, the agent, with his notebook out, his pencil at the ready, prefaced his question by saying, “This is sort of ancient stuff, but as I recall, just after the scene was secured outside the base, didn't you arrest a local lawyer and a private investigator? Can you tell us, were they involved in any way?”

Thorpe mustered up his best toothy grin and said, “No. They were taken into custody and questioned, but they were cleared. They weren't involved in any way. As I recall, they just happened to be in the wrong place at the wrong time.” Then he pretended that he couldn't remember our names, until one of his minions behind him whispered in his ear.

“That's right. As I recall, Mr. Madriani was the lawyer and I think Mr. Diggs was his investigator. They…no, as I remember, I think they just happened to be in the area talking to a witness who lived in the neighborhood regarding a totally unrelated matter. And they got pulled up in the net. It's regrettable, but it happens. No, they were cleared long ago,” he told them.

Thorpe watched as some of the reporters in the room jotted down notes. “Next question.”

It took a full day for the gardener to clean up the mess in my front yard after the media horde pulled out. Crushed paper cups, cigarette butts, and discarded sandwich wrappers covered the
lawn. Part of the top rail on the low fence separating the garden from the sidewalk was gone. The flower bed behind it was flattened and the shrubs around it trampled where the fourth estate had decided to blaze a new trail to the house.

The office fared a little better, but only because the owners of the building hired security to keep the cameras and equipment out on the sidewalk. Miguel's Cocina sold enough coffee and chips with guacamole that Harry was afraid they might frame us on other charges just to get the customers back.

We've been back in the office now since early May, a couple of months. The first few days we noticed a black town car parked across the street in the same spot each day. The shadowed silhouette of two men could be seen in the front seat. Thorpe was probably trying to make sure that we weren't inviting any journalists in for coffee. No doubt they were tailing us but it was hard to tell. After a while we noticed that the car was gone. Apparently the FBI was satisfied that Harry and I had developed a terminal aversion to publicity.

We brought in a professional security service to check the office for electronic bugs, wires, and taps on our phones. Everything tested clean.

The print press, always the first to find a story and the last to give it up, made a few calls to the office, mostly voice-mail messages that we never returned. One enterprising reporter tried to inspire a new angle with the rumor that we were preparing to sue the government for defamation and invasion of privacy. He wanted to know if it was true. Before Harry could warm to the idea, I shot a one-line e-mail back to the guy telling him, “No truth to the rumor and no further comment.” A lawyer unwilling to file a lawsuit; this seemed to kill the last vestige of the beast. Life had finally returned to normal.