Huston, James W. -2003- Secret Justice (com v4.0)(html) (30 page)

“I don’t see them loading these things aboard an airplane at some airport where they can be observed and when security is as tight as it is here. I think they’re trying to get them out in a merchant ship—to rendezvous later with some other ship or airplane in some port outside of the Black Sea. The busier the port, the better.”

“How do you know they haven’t already passed through the Dardanelles and are heading west in the Mediterranean?”

“I don’t. If they’re already through, we’re screwed.”

Groomer added, “You still think it’s Duar’s people?”

Rat clutched the wheel tighter as waves broke over the bow, causing a mist to hit the windshield. He looked knowingly at Groomer. “Remember what Johnson said?”

“But we got Duar, captured another one, and killed most of his top guys. Who else could put this kind of thing together? Especially from Georgia where they haven’t operated before?”

“That’s the question that keeps haunting me,” Rat replied. Rat steered the boat to the right through the chop, cutting across the bow of a large freighter that was bearing down on them. He looked at James. “We’re going to piss off these captains, but I’ll get us within fifty yards of every ship heading south.”

“Let’s do it,” James said stepping out of the wheelhouse.

Judge Gerald Graham had heard every excuse, every reason that someone should not be convicted in a criminal case, military and civilian alike, and was very rarely impressed. Even when he was impressed, he was careful not to show it. He sat behind the table draped with green felt aboard the
Belleau Wood
and looked at the attorneys in front of him. “Since this is our first real opportunity to speak about this case, I wanted to make sure that we are all operating from the same play book. Since the play book is rather fluid, and we’re guided by the directives and instructions promulgated by the Department of Defense, which apply to no other kind of trial in the country or out of it, we need to ensure that we are working together in that regard. Has each of you had a chance to review the notebooks on how to conduct the tribunal?”

The three attorneys, Stern and Little at one table, and Elizabeth Watson at the other, nodded. They had reviewed the notebooks.

The judge spoke again. “Good. If any of you have questions, speak up. There will be no claim of surprise, or lack of understanding, or some other excuse related to the procedures as to why you have screwed up after today. Am I clear?”

“Yes, Your Honor,” they said.

“Good. We’re here this morning because Mr. Stern has filed a motion to exclude a confession signed by the defendant. Do I have that right?” he said, looking at Stern.

“Yes, sir. That is exactly right, except that you have assumed into your description of the document that the defendant did in fact dictate and sign the so-called confession. I think both of those things remain to be proved, but in any case, we want it excluded on other grounds.”

The judge nodded. “You claim it was obtained through duress and torture.”

“Yes, sir.”

“Everybody have a seat. Mr. Stern, will you be arguing?”

“Yes, sir.”

“Fine. And while I have your attention, since you have two attorneys representing Mr. Duar in this case, I want it very clear that we will not be having a tag team defense. One attorney can speak to one issue or witness. Is that clear?”

“Yes, sir. That is our intention.”

“You may proceed.”

Stern stood up and walked to the lectern that had been placed between the two counsel tables. “May it please the court. The rulings of the Supreme Court and all other courts in the land have long held under what is known as the exclusionary rule that evidence obtained in violation of a defendant’s rights is to be excluded from evidence—”

Graham interrupted. “A defendant’s constitutional rights, Mr. Stern.”

“Yes, sir. And—”

“Is it your position that your client is entitled to the protection of the Constitution?”

“Yes, sir.”

“On what grounds? He’s not an American citizen, he’s not a resident of the United States, his crime—his alleged crime—did not occur in the United States, and he was not returned to the United States for trial.”

“Yes, sir, but he was on a sovereign U.S. vessel in the custody of the American military, taken
off
that ship, and tortured under the direct supervision and participation of American servicemen or intelligence agents.

“The rules of evidence have long-established constitutional rights both of which are an issue in this motion. My client—our client—was tortured in order to get the confession that is now being offered.”

Stern walked to the side of the courtroom, the wardroom, and stood by an easel that had been erected by the bulkhead. A large board was on the easel, covered by a cloth. “Just to show the court what kind of men we’re dealing with, I would offer as evidence in support of my motion a series of photographs.” Stern pulled the cloth away to reveal a three-by four-foot blowup of a close-up photograph of Duar’s scrotum. The image was shocking. Everyone in the room stared in horror and fascination. The burned skin was clearly visible. The black holes were surrounded by skin that was charred and peeled back from the places where the skin had burned completely through.

“This is what was done to my client, Your Honor,” he said, taking down the first board onto which the photograph was glued, showing the other six in succession, including close-up pictures of Duar’s earlobes and a broken tooth. “This is how they got the so-called confession.” Stern put the first photograph back on the easel and returned to the lectern. “Frankly, Your Honor, I think anyone, any of us, would sign that confession to avoid more of this kind of treatment.
I
would certainly sign it.

“It is understandable that our country must combat terrorism in new and different ways, but we cannot suspend the rules of law by which we operate. One such rule prohibits admitting evidence that is coerced out of a defendant. It violates that defendant’s rights, and it is unreliable. In this case, my client was dragged from
this very ship
in the middle of the night and taken to Egypt, where he was tortured to obtain this confession. He was then returned to the ship a mere shell of his former person. It will be obvious to the court that Mr. Duar has been damaged physically, mentally, and emotionally. Such means to elicit a confession are unacceptable in a civilized society. Confessions are routinely excluded in police brutality cases. This case is no different. The fact that the authority in question—the Navy, or the CIA—dragged Duar off the ship and had a surrogate—Egypt, I have now learned—conduct the torture does not remove the United States from its obligations to treat prisoners fairly and well. We cannot torture them, and we cannot hold against them something extracted through torture by a surrogate. Such an approach to justice is incomprehensible. Did the government really believe that it would get away with torture simply by taking it ashore? Did the United States really believe that it could ask its ally to use electricity on Duar’s testicles to get information from him and then attempt to use it in this tribunal? Such cannot be the case. The rule of law is just that.” Stern was gaining confidence. He could tell that the reputedly tough Judge Gerald Graham had been sickened by the pictures. It wasn’t just theory. Someone had been horribly damaged, and the decision whether that mattered was his.

“So may the United States Government use a confession extracted from a defendant through supervised torture conducted by a surrogate?” He paused. “To allow such conduct is not only a violation of the rules of evidence and the United States Constitution but a violation of common sense, goodwill, and the fundamental morality that backs up the rule of law to make it rational and merciful. Thank you.”

Stern sat down at the table next to Little, who whispered, “Nice job. Nice photo. Glad you kept his dick out of it.”

Elizabeth Watson stood up in her gleaming white uniform and strode to the lectern. Graham nodded at her. “May it please the court, Mr. Stern’s speech was quite moving. It was even interesting, and I must say, well presented. What it lacked though was legal and factual authority. In order to be persuasive to the court, legal authority must be cited if any exists. I cited the legal authority that stands for the proposition that confessions extracted outside the control of the United States Government or a state government, and on foreign sovereign territory, are admissible. The answer to the question presented is yes, such confessions or other evidence are admissible. It may be that Mr. Stern does not like those cases, it may be that he wants to write a law review article on how those cases are wrong, but it does not change the fact that the confession comes in.

“Everything else Mr. Stern said is irrelevant. The rule of law, as he discussed, is clear—the confession is admissible as long as the U.S. Government was not complicit in the commission of the torture. If the court has any doubt about that, I would direct the court’s attention to the classified declaration of Mr. Kent Rathman. As you can see, he was personally in charge of the detail that took Mr. Duar to Egypt. Egypt wanted to interrogate him and the United States was willing to accommodate that request. Mr. Rathman was assured that Mr. Duar would not be harmed. When he was ready to return, he found Duar being subjected to certain unacceptable interrogation techniques, the results of which we have seen graphically this morning. He immediately intervened on behalf of Duar, stopped the interrogation, and brought him back to this ship. As he was leaving he found this confession and took it against the will of the Egyptians. He asked Duar if he in fact signed it, and Duar admitted it was his signature. It is authentic, not tainted by the involvement of any U.S. agent in obtaining it, and therefore admissible.”

“Thank you, Commander Watson. Mr. Stern, do you have any reply?”

“Yes, sir.” Stern stood with an ironic smile on his face. “It is remarkable indeed, Your Honor, that the United States bases its position on the declaration of a man who is himself about to go on trial for manslaughter for torturing and killing a man who supposedly worked for Mr. Duar. Mr. Rathman is completely unreliable. He would be implicated in
another
illegal act if his declaration were found to be untrue. He isn’t here; I am not able to cross-examine him about what actually happened in Egypt.” Stern looked over at Commander Watson, who was looking down at the notepad on which she was taking notes. Stern waited until she looked up. “How can the United States
not
be complicit in the torture of my client when they are the ones who dragged him out of the brig in this ship in the middle of the night? It flies in the face of logic and common sense to assert that the Americans who accompanied my client were there only to feed him, keep him warm, and buy him chewing gum.”

“Thank you for your argument,” Judge Graham said. He looked at the photograph, then at the lawyers. “I find that there is no evidence that the United States participated in, condoned, or encouraged the torture alleged to have occurred at the hands of officers of the Egyptian government. The confession is admittedly authentic, and therefore admissible unless tainted by illegal means in its creation. I find that the exclusionary rule does not apply to these facts. The motion by the defendant is denied. The confession will be allowed into evidence. This court is adjourned.”

Stern couldn’t believe it. He wanted to jump up and protest. He looked at Little, who showed no surprise at all. “You expected that?”

“Sure,” Little said. “I told you that. Unless we could tie Rathman to the actual torture, we’d lose.”

“How the hell are we supposed to do that?”

“No idea. That’s why I thought it would come in.”

“This is funny to you?” Stern asked.

“Sort of. I just can’t get over that photo. I think you should take it back to your ACLU office in D.C. and hang it on the wall. Give you something to talk about,” Little said, chuckling as he picked up his briefcase.

“Do you want to resign from his defense? I’m just not sure you’re adding much.”

“Neither are you, so far,” Little said. “It was a good motion, you did a good job. Had to bring it. I would have done the same thing. I’ve just never seen a scrotum blown up that big before.”

Stern turned and walked out of the room.

Little smiled at Watson and followed Stern.

“Where are you going?” Andrea asked Satterly. He was packing a medical bag in the sick bay.

“Washington.”

“What for?”

“I’ve been subpoenaed to testify in a trial.”

Andrea caught herself. “Rathman’s trial?”

Satterly looked at her suspiciously. “Yes. You know about it?”

“Sure. I read the
Washington Post
on-line every day. They’ve been giving it a lot of coverage. I think they’re trying to make him look bad.”

Satterly put his bag down and looked at her. “He
should
look bad. He’s a bloody murderer.”

“Why do you say that?”

“He tortured that poor man to death. He didn’t care about the man’s life at all.”

“How do you know that?”

“He was here, Andrea. He told me over and over again that he had been tortured. And I watched him die. I did the autopsy. It was all consistent with what he had said.”

“So you’re going to testify for the prosecution?”

“You bet I am. And happy to do it. That man should go to prison. I’m grateful for the chance to put him there. We can’t have Americans running all over the world torturing people and violating international laws and treaties. Did you know we signed a treaty in 1994 promising not to use torture at
all
? An international treaty. You aware of that?
Everybody
signed it—including us, which is rare enough. But we promised we wouldn’t do it. And here’s this Rathman violating it left and right. He doesn’t care. He thinks he operates in a different world. He thinks he’s above the law.” He jerked the zipper of his bag closed and looked into her eyes, the emotion plain for her to see. “It’s when the pressure is on, when things get the toughest, that we need to hold tightest to our principles. It’s easy when there’s no pressure, when a shortcut won’t matter.” Satterly paused and took a breath. He realized he had been talking too fast. He had gotten carried away.