The Patriot Threat (26 page)

Who didn’t?

She decided to hang out in the lounge for a little while and read. The book’s introduction stated that Howell was not a lawyer, but he had spent a number of years studying the federal income tax. He invited any and all readers to challenge his assertions and investigate his conclusions on their own.
Debate is healthy,
he wrote at one point.

That it was.

She glanced at the table of contents and decided to skip around, focusing first on a chapter where Howell hypothesized about the possibility that the 16th Amendment may not have been properly ratified. In the opening paragraph he freely admitted that he possessed no proof, but then stated—

Over the past two decades, many tax protesters (myself included) have claimed that the 16th Amendment is not really part of the Constitution. Therefore, the income tax is illegal. Is this argument valid? A few tax protesters have conducted extensive research, finding that versions of the amendment, as ratified in the individual states, contained minor textual errors. Some neglected to capitalize the word “States,” or referenced “income” in place of “incomes.” Another utilized the word “remuneration” instead of “enumeration.” Still another said “levy” instead of “lay,” and so on and so on. So the question becomes, if the requisite number of states did not all vote on the same identical text for the 16th Amendment, can the amendment really be considered ratified?

You have to admit, it is a good question. When Congress, or a state legislature, enacts a law, the two governing chambers must always approve the same text. If not, then there is no law. Instead, there are two separate votes on two separate versions of that law. Similarly, if the states did not all vote on the same language, one could argue that they did not all ratify the same 16th Amendment.

There is a certain logic to this conclusion, but the courts have consistently held that minor textual variations in the versions the states voted upon are unimportant. Those same courts assert that every state legislature that acted on the amendment intended to either ratify or reject it,
exactly as proposed by Congress.
When they voted, they understood themselves to be voting to approve or reject the 16th Amendment,
as proposed by Congress
. Judges who have considered the issue have all held that “the text of that amendment, as set forth in the various state instruments of ratification, was there for recitation purposes only. Any errors in that text were not proposals to change the amendment being ratified, they were just inadvertent errors that do not detract from the overall intent of the state legislature to ratify the amendment, as proposed.”

Another ruling courts have used to defeat tax protesters is that the official declaration (by the appropriate government official) of the effective date on a constitutional amendment is definitive. In 1913 the Secretary of State was the government official charged with determining whether an amendment to the Constitution had been properly ratified (today, that task is performed by the Archivist of the United States). Courts, although regarding themselves as empowered to determine the meaning of the Constitution and the laws, regard themselves as
not
competent to say when the definitive text of the Constitution and its amendments starts to be applied. In 1922, the Supreme Court held in
Leser
v.
Garnett,
258 U.S. 130 (1922), that when the Secretary of State certifies that an amendment to the Constitution has been ratified, no court is empowered to look behind that claim to determine whether or not it really was. Of course, that ruling came nine years after Philander Knox certified the 16th Amendment. But the same principle was applied in 1913. So what would happen today if an amendment was proposed and three-fourths of the states do not ratify it, but the Archivist of the United States ignores that reality and declares it ratified? The Supreme Court says courts cannot question that patently wrong action. Common sense would say that of course the courts would question that. Which in and of itself begs a question.

A final bit of reasoning courts offer to defeat tax protesters is that the 16th Amendment has been around for over 100 years, it has been considered and applied by courts, including the Supreme Court in innumerable cases, therefore it’s valid. As one judge wrote, “While this alone is not sufficient to bar judicial inquiry, it is persuasive on the question of validity.” Let’s stretch this to its logical conclusion. If a law was illegal from the start, yet was still adopted, would the simple fact that it’s been around a long time be enough to now make it legal?

Clearly not.

Here’s reality: Courts simply don’t want to hear that the 16th Amendment may be invalid. The implications from that conclusion are too horrific for them to even consider. So judges have fashioned their own form of twisted logic to shoot down any and all challenges. The problem is that their reasoning does not hold up to scrutiny. And when the day comes that someone can actually present concrete proof not only of the amendment’s non-ratification, but that the declaration of its effectiveness by the Secretary of State in 1913 was flawed from the start, the courts will have no choice but to consider it.

Here’s one final point. Some say that even if the 16th Amendment was not properly ratified, that does not mean Congress could not impose an income tax. That’s true. Congress could still impose an income tax, but it would have to be apportioned, as required by Article I, Section 2. Of course, that would never happen. The fears of the Founding Fathers relative to “direct taxes” have not abated. If anything, they are even stronger today. No Congress would approve an income tax that has radically differing rates depending upon where one lived.

And don’t forget about that “horrific part” the courts really fear. Imagine for a moment if the 16th Amendment is invalid, has been invalid from the start, and the Secretary of State in 1913 knew enough to at least be suspicious—yet still declared it “in effect.” By any definition that’s fraud. Not only would the current application of the 16th Amendment cease immediately, but the United States would be liable for trillions and trillions of dollars it illegally stole from its citizens. Considering that possibility, it’s easy to see why the courts work so hard to uphold its validity.

She stopped reading.

Everything Howell wrote made perfect sense. His arguments were sound, the implications clear, some of it echoing the fears Danny had expressed in the car. She could understand now why he was concerned. He’d obviously read the book. She also tried to recall something else the federal appellate court had written in Howell’s case, right after it stated that “for Howell to prevail, we would require, at this late hour, an exceptionally strong showing of unconstitutional ratification.” She tapped the keyboard on her laptop and found the trial court’s opinion online, locating the passage at the end.

Howell (through his appointed counsel) has made no such showing, only boldly concluding that the amendment was improperly ratified. No evidence has been presented to prove this assertion, nor has Howell cited any factual or legal authority binding on this court (or for that matter on Secretary of State Knox in 1913) for his contention that the 16th Amendment was improperly ratified. In short, Howell has not carried the burden of showing that this 100-year-old amendment was unconstitutionally ratified.

Was the proof Howell sought contained within a black satchel presently crossing the Adriatic Sea on its way to Croatia? China, North Korea, and Kim Yong Jin seemed to think something substantive was there.

She agreed with Danny.

This crisis was decidedly different.

And she, too, had a bad feeling.

THIRTY-EIGHT

C
ROATIA

Kim kept a watch out the rear windows, pleased that the other lifeboat was far in the distance, occupied with a rescue. Even better, a fog had slithered in, swallowing everything in its path, offering excellent cover. That and the rain should mask their escape. They remained half a kilometer offshore, churning across the frothy bay. Neither he nor Hana seemed affected by motion sickness, though they should have been. The deck beneath his feet rose and fell with unsteady regularity.

“We need to know where we are,” he said to her.

They were definitely north of Zadar. He’d spotted the port city as they’d made their escape. Right now they were paralleling the mainland, protected to the west by barrier islands and rocky archipelagoes. The storm, though, had come from the east and was not abating. Thankfully, the shoreline remained visible. Hotels, resorts, and various other buildings lined the beaches, where surf roared up in a welter of foam.

The black satchel remained draped over his shoulder, sealed tight. He could not allow rain to harm anything inside. He needed time to examine everything, without any pressure. Heading straight for the airport or train station now appeared unwise. Malone was still out there, and he may have help. So a room at one of the seaside resorts he’d spotted seemed like an excellent respite.

Ahead, he spied more buildings clustered together.

And docks.

He pointed. “We’ll end our journey there.”

*   *   *

Malone felt the sea close over him, the cold water like a physical blow, taking his breath away, sucking strength from his muscles. He surfaced, the swells easily four to five feet high, and searched for Jelena.

But she was nowhere to be seen.

He sucked a breath and dove under, swimming hard. His clothes quickly became dangerous weight, but he kept going. Up and down he went, his eyes trying to find some sight of her in the rolling waves. He wondered if she might have been drugged. That seemed Kim’s preferred weapon. If so, there was no way she could swim.

Calm down,
he told himself.

“Jelena. Jelena,” he yelled over the wind.

He kicked hard, kept himself afloat, and fought to control his panic. He’d learned in the navy about a sense of hopelessness associated with floating alone in a bobbing sea. A raging storm only added to that anxiety, and the cold numbed his legs, so he worked them harder. Fog had appeared out of nowhere. Visibility was down to maybe fifty feet. He hoped Howell had kept the wheel true, following his path into the water. If not, he could be swept away, just like Jelena.

Then the lifeboat appeared out of the mist, to his right.

“Here,” he yelled as loudly as he could.

Its rounded bow turned toward him, the windshield wipers still working hard. Cold water forced his eyeballs back in their sockets with a stabbing pain. Between strokes to keep himself afloat he thrust his arm in the air to draw more attention. Howell apparently saw him and eased close. This was not going to be easy. Howell appeared in the open hatch.

Their eyes met.

He shook his head.

“No. No,” Howell mouthed.

Shock filled the younger man’s face, then sadness.

He climbed inside. His muscles ached and he was breathing hard. Howell staggered to the other side of the enclosed cabin, a hand to his face, tears in his eyes.

Malone’s lungs kept grabbing deep breaths, the oxygen in his blood stabilizing. Cold chewed into his muscles and he still tasted the raw tang of salt water. Beneath the wood benches were surely blankets, and he found one and wrapped himself inside.

He glanced out the windows.

Nothing but fog.

Kim was gone.

*   *   *

Isabella had arrested plenty of people, but never had she been led away with her own hands bound behind her back. The local police had not been in a good mood, wrestling them both from the taxi, then quickly removing them from the scene. Luke Daniels had wisely kept his smart mouth shut, as had she. Whatever would be sorted out would not be done in the rain. She would need to speak with someone much higher on the authority pole—on both sides of the Atlantic.

They were transported back toward Zadar’s center and a four-story building that sat on the mainland, facing the old town peninsula. On the drive she saw that the ferry had arrived and docked, no more smoke emitting from it. They sat alone in the rear of the police car, two officers in the front seat.

“When we sort this out,” she whispered to Daniels, “you and I are parting ways.”

He threw her a glare. “And I thought we had somethin’ special.”

“That cocksure attitude is what let Kim get away.”

“Bad luck let Kim get away. I was givin’ it my best shot.”

She could only hope that Malone had been able to stop Kim. Those documents could not be lost.

The car was parked, but before the officers could exit a cell phone rang with a soft chime, like church bells. Both of their units had been confiscated after their arrest, but the one ringing was not hers.

“That would be me,” Daniels whispered.

The officer on the passenger side in the front answered the phone.

“Luke. Are you there?”

They could hear Malone thanks to the speaker being activated.

“Who is this?” the policeman asked.

“Who the hell are you?”

“Policija.”

*   *   *

Malone realized that the voice on the phone was not Luke Daniels, and though Croatian was not one of the languages he was particularly proficient at he caught the meaning.

Police.

He decided to throw a little weight around. “This is Cotton Malone. United States Justice Department. Do you have Agent Daniels and Agent Schaefer with you?”

*   *   *

Isabella heard what Malone said and saw that the officer had understood every word. The two policemen stared at each other, seemingly trying to decide how to reply. Finally, the officer holding the phone said, “We have them both. They are under arrest.”

“What charge?”

“Car theft. Reckless driving. Endangering the public.”

“Those are agents of the United States government, on a mission. I suggest you contact the American embassy immediately.”

“We take no orders from you, and have no way to know who you are and if you speak the truth.”

“You will know who I am, once I get there.”