Decency (37 page)
“Your motion indicates that your efforts to confer were limited to telephone calls in the middle of the night last night which you say were not completed at all. Would you please address why the court should consider those efforts adequate compliance with the rules?”
“Yes, your Honor.”
Kelly stiffly rose and walked empty handed to the lectern in the middle of the court room and riveted her gaze on the judge’s eyes.
“First of all, I would be very remiss if I did not express my gratitude to the court for allowing this unusual, expedited hearing. On behalf of my clients and myself, I thank the court.
“Regarding your Honor’s question, there are two reasons why I believe the court should consider those efforts sufficient.
“I am leaving aside the argument, which I believe we would be entitled to make, that our efforts to confer were in compliance with the rule. That compliance was only technical compliance. It is clear the rules intended counsel to make sufficient effort to confer in order to minimize the involvement of the court. Our efforts were the best we could do under the circumstances. Yet, however minimally the purpose of the rules was fulfilled, the spirit of the rules would be hard to recognize in the efforts that we were able to make.”
She paused and increased the volume of her voice, “Notwithstanding, it is our unshakable belief that our efforts were sufficient for the following reasons.
“First, we received information yesterday as described in the memorandum in support of our motion that a trusted member of one of our most elite law enforcement agencies, the FBI, was and is an agent for a foreign power, the People’s Republic of China. The agent’s name is Theodore Fitzgerald. His duty station is at the National Security Agency, the plaintiffs’ daughter’s employer. He is detailed there in a counterintelligence capacity. In his Chinese agent’s role he corrupted the process of psychological evaluation. As a result, my clients’ daughter and other employees suffered great pain through false evaluations. My clients’ daughter and at least one other employee have since died, in some part as a result of this man’s corrupt actions. A surviving witness who suffered this man’s corrupt actions is prepared to provide evidence to this court but clearly runs the risk of his life being jeopardized in the process. Another witness who can help substantiate the agent’s status is also prepared to testify and would likewise jeopardize his own life as well. Consequently, we were compelled to ask the court to take actions as quickly as possible to protect these witnesses from having their identities discovered. That brings us to the second reason our efforts were sufficient.
“When we were last before your Honor, you set a strict schedule for prompt disposition of this matter and commanded the parties to keep the court informed of necessary modifications to the schedule. As a result of the information we gained yesterday, a number of modifications to the schedule may be necessary. However, in pursuing those modifications or otherwise presenting the case to the court, the plaintiffs are duty bound to protect the integrity of the evidence. In this matter, that duty extends to the very lives of some of the witnesses. In short, your Honor, we would be unable to fulfill our responsibilities to the court itself without immediately seeking the protection of the identities of the witnesses.
“As a result, while we stand ready to confer with opposing counsel as the rules require, our duties to the court and to the witnesses compelled us to make this request first.”
Judge Reichardt wore neutral on his face like baked clay.
“Very well. Mr. Carbajal, do I correctly presume your position on this issue is that conference of counsel is a prerequisite to the court’s consideration of the request?”
“Yes, your Honor.”
“Very well. I will reserve ruling. Ms. Hawkins, do you wish to present argument on the merits of your request?”
“Yes I do, your Honor.”
“You may proceed.”
“Your Honor, we have provided the factual information in the materials attached to our memorandum and we have made the legal arguments in support of our motion in the memorandum itself. Unless the court has specific questions regarding those, I will direct my argument to the underlying reasons why this matter is extremely important and urgent.
“Your Honor, protecting the identities of these witnesses, even from the opposing parties and counsel, is an essential step in providing an adjudication of any kind in this case. The powers of government under our Constitution are specific and limited. The Fifth Amendment prohibits the government from taking life or liberty without due process of law. Coercion, by definition, is not due process of law. Coercive psychological manipulation is just as surely deprivation of life or liberty as physical torture.
“The anti-torture statute does not apply because it only deals with custodial situations and does not provide a civil remedy. However, government actions in this case have gone forward with no other apparent purpose than to invade the most personal sanctum, the mind, to control it, to warp and poison thought, and deprive citizens of the freedom to think free of intimidation. The device of false psychological practice was used not merely to deprive individuals of their government jobs. It was used to control them outside of rightful employment relations. The device was meant to capture their thoughts and, still more, was intended in and of itself to punish them without legal justification or procedure.
“Make no mistake of the power of such devices. One of the many depredations of Hitler, which thousands fled here to avoid…”
Despite the obvious reference to how he himself arrived in America, the Judge’s face was still baked clay.
“…was to send Jews labeled ‘insane’ to incarceration and death. Stalin used psychological devices to coerce confessions of ‘political’ crimes. The Chinese used them against American prisoners of war during the Korean conflict to ‘brainwash’ them. Unrestricted, unreviewable power is absolute power. Absolute power to control and punish by psychological means should never be allowed in the hands of government. Bigoted labeling, coercion, and brainwashing, and terror, are the result. This fundamental concept is even enshrined in the UN General Assembly Resolution 3452, cited in our memorandum, which condemns intentional psychological pain caused by a public official to punish or intimidate as outright torture.
“My clients’ daughter and one of her co-workers suffered the punishment of this device and later died, in part caused by it. Another surviving witness was punished with this device. He is prepared to offer evidence of how this device was used in a pattern and to show the intent of those who employed it. We ask the court simply to protect him from further punishment by concealing his identity. We are prepared to present his live testimony under appropriate safeguards to the court today.
“To show that further punishment awaits these victims, another witness is prepared to testify to actual threats against her and her family made in connection with this very case. She is also available to testify in person today under conditions of anonymity.
“To show that this device was used as part of actions by the government at the corrupt instigation of an agent acting for a foreign power, we have a witness available to testify in person today under conditions of anonymity.
“Furthermore, we have submitted the transcript of the audio tape and the description of the video tape recordings which clearly depict the direct connection between the corrupt abuse of the psychological evaluation and the demise of two persons who suffered under it.
“We are prepared to offer the live testimony to augment the affidavits we have submitted because we recognize that the plaintiffs’ claim is unusual and that the evidence supporting it is sensitive information. We want to afford the court every opportunity to explore the subject matter as necessary.
“In conclusion, your Honor, no government action may so impinge on the liberty of American citizens as to involuntarily deprive them of their freedom to think and to believe or to punish them for doing so outside the due process of the law. The anonymous testimony of these witnesses is essential to preserving that great principle.
“Thank you, your Honor.”
“Ms. Hawkins, I do not see in your papers whether you requested the Attorney General to admit these witnesses to the witness protection program. Did you do so?”
“No, your Honor. I had intended to explore that possibility but was overtaken by events.”
“All right, before taking argument from opposing counsel, I am going to recess for approximately…fifteen minutes. The court is in recess.”
“
All rise!
”
After the judge departed behind his private entrance, Bonnie turned to Kelly, “That was an argument to get his attention. Well done.”
“I don’t know…I’m so tired I felt like I was floundering badly…let’s check on our people.”
Carbajal left ahead of them, and outside the courtroom turned left, apparently headed to the restroom. Kelly and Bonnie turn right to the witness waiting room.
Jannie, Christian, Duncan, Theresa, and Gareth were there.
“Thank you all once again for coming.”
Duncan spoke up for all of them. “What’s going on in there?”
“So far it is a typical motion hearing. The judge is there, and opposing counsel. There’s no jury. I just finished our argument. Before hearing the other side the judge took a recess.”
Theresa was uncomfortable and scared.
“Ms. Hawkins, will I have to get up there and testify?”
“I don’t think so. But we’ll have to see. Don’t be scared. Everyone is here with you and no one is going to hurt you.”
“I’m more concerned about later.”
Gareth renewed his fussing for attention.
“I promise, Theresa, we are going to keep you and your family safe.”
Theresa felt Gareth’s diaper and decided it was time for a change.
“I’m going to take him to the restroom, again…there’s a changing table in there.”
Jannie spoke up, “I’ll go with you.”
Outside the waiting room, Theresa and Jannie turned left toward the restrooms. Carbajal was coming down the corridor returning to the court room directly toward Theresa.
The instant Theresa’s eyesight focused on Carbajal, she froze. Realizing Theresa had stopped, Jannie stopped two steps farther and turned back to look at her.
Theresa was a stone pillar. Her eyes were open wide in terror and her face was whitening steadily. When she moved, she spun around and ran back to the waiting room, fighting tears, flung the door open and rushed inside, with Jannie in tow.
“It’s him…Duncan…Ms. Hawkins…no, no-o-o…”
One hour to go until the 2:30 call to the President and General McKenna could not get the Chinese transcript out of his mind. He sauntered back to his SCIF and put the display back up. He read and re-read it until, like the expanding ripples in a pond, it smoothed itself out and its structure normalized. He dialed CIA on the secure phone.
“Mandy Matthews.”
“Mandy, Chet. There’s something in the Chinese transcript I really don’t like. Do you have yours handy?”
“Sure.”
“Okay… First, I think our guys were right that it is authentic, the actual officials were talking, that’s pretty easy for us to source. Second, I think our linguist is right that there are Americanisms deliberately used. What I now see is this. Instead of the subject matter where Americanisms are used being bogus and intended to create a false image of concern, I see that as what they
wanted
us to think.
“I see that because they say the messages from Fitzgerald were sent twice. We don’t have a record of the first set. Presumably they were Fitzgerald’s own. They don’t know we sent the second. Or if they do, they assume we picked up the first as well. There are only two other possibilities, one, that they are falsely claiming two sets of messages were sent and only ours was, and two, that they think we sent both sets. Neither of those lends any logic to the sequence.
“Consequently, instead of the image of concern about the missing material being false, the pattern I see is that the…”
Mandy broke in, “The concern is real and they are trying to portray it as false. Meaning there really are materials…”
The General continued, “…and they don’t know where they are or where Fitzgerald is. Mandy, they’re going to come looking for all of the above, and probably watch us, hoping we help them find him.”