Rule of Law Page 21

  Two days prior to the deposition, the Fourth Circuit issued a one-paragraph order denying the emergency stay. The order said that the procedure proposed by Judge Solberg was fair and would adequately protect state secrets while she made the determination of whether the case should proceed.

  The very next day, the defendants filed a thirty-five-page petition with the U.S. Supreme Court, requesting that the justices halt all discovery until such time as they could hear a full appeal and consider whether the case should proceed on its merits. The petition claimed that if the Court didn’t stop discovery in the interim, state secrets might be exposed, causing irreparable harm.

  Under the Supreme Court’s procedural guidelines, the emergency petition would first be considered by the one justice who had jurisdiction in the Virginia area—Chief Justice Cyrus Leonard. In theory, he could issue a temporary stay without even consulting the others, though such actions were exceedingly rare, especially when the Court was in summer recess.

  “He might grant some type of expedited review,” Wellington told Paige. “But he’s not going to act in the twenty-four hours before we start our depositions.”

  Wellington sounded sure of himself, but Paige had a question. “How many cases have you and Wyatt had at the Supreme Court?” she asked, though she already knew the answer.

  “This would be our first.”

  The call came at 11:05 p.m. on the night before Marcano’s deposition. Paige had finished reviewing her outline of questions and had just crawled into bed. As soon as she recognized the voice, she started the recording software Wellington had loaded onto her phone.

  “Deposing Daniel Reese is a bad idea,” the Patriot said, his voice the same metallic blend as before.

  “Why?”

  “There are things I can’t say over the phone. We will need to meet in person.”

  “When can we do that?” Paige asked, her heart racing. This was the first time he had mentioned an in-person meeting.

  “I’ve got to figure a few things out first. I’ll give you the details soon.”

  “Do you have anything else on Director Marcano?” Paige asked.

  “You received my package of materials?”

  “Yes.”

  “Then you’ve got it covered.”

  “That’s debatable,” Paige said.

  “I’ll be in touch. But stay away from Reese.”

  As always, the Patriot hung up without saying good-bye. But this time Paige had it recorded.

  She dressed and called Wellington. “I’m on my way over,” he said.

  When he arrived, Wellington set up his computer at the kitchen table and transferred the recording to his hard drive. For the first hour, Paige watched and listened as he tried to reverse the voice scrambler that disguised the Patriot’s natural tone. But it was now past midnight, and tomorrow would be a very long day.

  “I’m going to bed,” she told Wellington. “Good luck.”

  “Okay,” he said without looking up.

  When she arose the next morning, there was a handwritten note on the kitchen table.

  No success yet. Still working on it.

  52

  Hearing no word from Chief Justice Leonard, Paige and Wellington showed up in Judge Solberg’s courtroom on Friday morning to take the deposition of CIA director John Marcano. The vast courtroom that had been so jammed with people in May was now nearly empty. Dylan Pierce was there, of course, accompanied by three other associates from his large firm—a total of four white males with freshly pressed suits and power ties, all sporting Ivy League degrees no doubt, ready to pounce with an objection at the first opportunity.

  Their client, Philip Kilpatrick, sat at the defense counsel table. He slouched in his chair, and the big ears, black glasses, and closely trimmed gray beard made the man seem less dangerous than he was—less conniving. But Paige knew he didn’t miss a thing. He would be scrupulously studying her style because his deposition would be next.

  Kyle Gates was there too, but he didn’t bring a pack of associates like Pierce. He greeted Paige with an aggressive handshake and a crisp “Good morning.” The muscles were tense on the former Green Beret’s broad neck; he was ready for combat of a different type.

  Paige was battling her own nerves and ready to get the testimony started. She had spent her young career arguing cases in the court of appeals, not examining witnesses. This was one of the few times she wished Wyatt Jackson could be by her side.

  Judge Solberg took the bench, placed a large cup of coffee in front of her, and called the proceedings to order. She asked the court reporter to swear in John Marcano, who walked to the well of the courtroom, his black suit hanging on his thin and rounded shoulders. He raised his hand and took the oath, then settled into the witness box, his birdlike eyes peering out from under his long, sloped forehead, following every move Paige made. His skin was blotchy this morning, his brow furrowed in a perpetual scowl, his thin gray hair combed back. Paige had watched films of a few congressional hearings where Marcano had testified. His arrogance and defensiveness would make him an unlikable witness.

  “I will begin by reminding everyone that this proceeding is under seal,” Judge Solberg said. “No portion of the transcript may be shared with anyone who is not listed in the protective order.”

  Paige knew the remarks were an oblique reference to Wyatt Jackson, who was not listed in the protective order because he had not obtained the requisite security clearance.

  “You may begin, Ms. Chambers.”

  Paige took her place behind the large wooden podium and began with some easy questions on background matters. But before long, she got right to the crux of the matter.

  “Did you provide any information to the president or her chief of staff prior to the commencement of Operation Exodus on March 30 indicating that the mission had been compromised or that your intelligence sources were not reliable?”

  Kyle Gates sprang from his seat. “Objection. That question would require that Director Marcano reveal state secrets about ongoing CIA operations in Yemen and would jeopardize the national security of this country.”

  “I’m not asking him to talk about CIA operations in Yemen,” Paige shot back. She had anticipated the objection. “I’m asking what he told the president about a past mission. And I’m not asking for names of operatives—just what he told the president or Mr. Kilpatrick.”

  “It’s still state secrets,” Gates insisted.

  It was playing out exactly as Paige and Wellington thought it would, exactly as Wyatt had scripted it. And before Solberg could rule, Paige preempted the judge. “Your Honor, I’ll temporarily withdraw the question. But I intend to show that providing information about past operations has never been considered a state secret when it serves the administration’s political agenda.”

  Solberg told her to continue, and Paige began the next phase of the plan.

  “You were in the CIA during the Obama administration, weren’t you?” Paige asked.

  “Of course.”

  “And you never objected to the disclosure of information about the Osama bin Laden raid, did you?”

  “No. We were careful not to divulge state secrets.”

  It was the answer Paige wanted.

  One by one, she took him through Obama’s speeches about the raid, speeches that revealed details about the deliberations and tactics used. “Did you believe the president was revealing state secrets?”

  “Nobody asked me.”

  “I’m asking you now.”

  “I would rather not have the president talking about the deliberations leading up to the raid. But he was careful not to reveal state secrets.”

  Next Paige took Marcano through a detailed account of the raid itself that was published in a New Yorker article titled “Getting bin Laden: What Happened That Night in Abbottabad.” Published shortly after the raid, the article included authorized interviews with Ben Rhodes, a deputy national security adviser, as well as Obama’s counterterrorism advis
er and the chairman of the Joint Chiefs of Staff. The article revealed details about the deliberations leading up to the raid, the Black Hawk helicopters’ routes, how the SEALs entered bin Laden’s compound, how they moved from room to room, the weapons they used, how security was maintained around the perimeter, the killing of bin Laden, the communications between the SEALs and the bigwigs in D.C., the hunt for intelligence documents, and the decisions made in the Situation Room.

  “Did you or anyone else in the administration object because state secrets were being revealed?” Paige asked.

  “That wasn’t my role.”

  Next Paige handed the witness a book titled The Finish.

  Gates objected. “What’s this got to do with anything?”

  “I’m about to show you,” Paige said, and Solberg overruled the objection.

  The book was the story of the bin Laden raid told from Obama’s perspective. Paige had highlighted various passages, and she took nearly forty-five minutes dragging Marcano through them page by page, having him read into the record various aspects of Obama’s decision-making on the night of the raid, what he was told, and what happened in the Situation Room.

  “It has been reported that President Obama and the commanding officer of JSOC cooperated at length with the author of this book, the same man who wrote Black Hawk Down. Do you know if that’s true?”

  Marcano sneered at her. The blotches on his skin had grown, his lips pursed and his eyes narrowed. “I have no idea.”

  “How else might this author have obtained this information about President Obama’s thoughts and deliberations?”

  “As I said—I have no idea.”

  “Does this book reveal state secrets?”

  “If the president wanted to reveal certain information, that was his prerogative. As director of the CIA, it is not mine.”

  Paige ignored the answer and moved to her next line of questioning. She was starting to have fun. “What about the movie Zero Dark Thirty, also about the killing of bin Laden? The CIA cooperated with the producers on that movie, didn’t they?”

  Paige knew he couldn’t deny it. CIA staff members had provided unprecedented access in return for favorable treatment in the movie. That cooperation had triggered two internal investigations and a critical report authored by the CIA itself.

  “Certain CIA employees worked with the producers to make sure the information was accurate,” Marcano grudgingly admitted. “As I’m sure you know, the CIA produced a guidance report later that was critical of those actions and detailed how such situations should be handled in the future.”

  Paige spent the next half hour showing scenes from the movie and asking if the scenes revealed state secrets. Marcano denied that they did.

  Having beaten the bin Laden horse to death, Paige moved on to the Benghazi disaster. She questioned Marcano about statements by then–Secretary of State Clinton to congressional committees investigating the incident. She walked him through Clinton’s book Hard Choices and the information Clinton had revealed in it. There were detailed statements about what the secretary of state knew, when she knew it, and who told it to her. True to form, Marcano denied that the accounts revealed state secrets.

  It had taken her nearly three hours, but Paige was now ready to circle back to the most important question in her case. “In light of the fact that all of this information has been revealed in after-action reports and books and movies for other missions, let me ask my question again: Did you tell the president or Philip Kilpatrick prior to Operation Exodus that the mission had been compromised or that you had lost confidence in your intelligence sources?”

  Gates was on his feet again, noting his objection, but his voice was less strident this time. Paige kept her eyes on Solberg, holding her breath for the court’s ruling.

  Solberg let the silence linger for a moment as she studied her notes. “The state secrets doctrine typically protects classified information in documents as well as sources of information, such as the names of CIA operatives,” Judge Solberg began.

  She turned to the court reporter, watching as her words were typed into the record, carefully choosing each one. “But the state secrets doctrine only protects those secrets that would compromise our national security if they are revealed. That is why the type of information we have spent the last three hours covering—such as the release of details about past missions that have failed or succeeded, when that information does not include names of CIA operatives or specifics about how the classified information was obtained—is not the revealing of state secrets.

  “If it were, as Ms. Chambers has demonstrated, there would be a number of high-ranking former officials in a lot of trouble. That hasn’t happened. Accordingly, I am instructing the witness to answer the question, but he is not to reveal any secret details about CIA operations in doing so.”

  Paige glanced back at Wellington, who was practically smiling. This was the best ruling she could have imagined.

  “I strongly object,” Kyle Gates said, his voice brazen. “Once state secrets are revealed, they are impossible to put back in the bottle. I respectfully request that this court suspend the deposition and give the Fourth Circuit an opportunity to rule on this question.”

  “Request denied,” Judge Solberg said. There was a sharpness to her voice for the first time in the proceedings. She turned to the witness. “Answer the question, please.”

  Marcano leaned back in his chair, still eyeing Paige. “I did not tell the president or her chief of staff that the mission had been compromised or that our intelligence was in doubt.”

  “You’re sure?” Paige asked.

  “Positive.”

  Paige walked to her table and picked up the affidavit of Daniel Reese. “Your attorneys have filed an affidavit that says the president was told one week prior to the mission that you had a 95 percent confidence level in the intelligence you had provided. Was that assessment ever changed?”

  “That number was not changed,” Marcano said.

  “Did you consider it a violation of state secrets when your attorney filed that affidavit with the Fourth Circuit Court of Appeals?” Paige asked.

  “Objection,” Kyle Gates said. “Argumentative.”

  Solberg sustained the objection though Paige thought that the judge seemed amused by the question.

  “Your Honor, this might be a good time for a lunch break,” Paige suggested.

  The judge agreed, and for the first time that morning, Paige relaxed and took a deep breath. She had laid the foundation in the morning—locking Marcano down on what he had communicated to the president. She would blow it up in the afternoon.

  As she and Wellington gathered some papers to review during lunch, Marcano brushed past her table on the way out, murmuring something under his breath.

  Wellington watched the CIA director and his counsel leave the courtroom. “I think you got under his skin,” he whispered.

  53

  John Marcano had an unnerving stare that was in full force during the afternoon session. He repeatedly hesitated and locked his eyes on Paige for just a moment before answering her questions. Judge Solberg seemed oblivious to it as she diligently took down notes.

  Marcano’s eyes narrowed when Paige asked if his friend had jumped to his death from the World Trade Center. “What’s that got to do with anything in this lawsuit?” he snapped.

  Kyle Gates stood and objected. Better late than never.

  “It goes to Director Marcano’s motivation,” Paige argued. “It shows that he has a personal vendetta against terrorists.”

  “That’s a stretch,” Solberg ruled. “Let’s move on.”

  Wellington handed out copies of a bulky exhibit that Paige identified as the Senate Intelligence Committee’s 528-page summary of its report on the CIA’s detention and interrogation program carried out during the Bush administration. At the time of the events detailed in the report, Marcano had been head of CIA operations in Lebanon.

  Paige directed Marcano to a
page where the names of CIA agents who had participated in the program were redacted. She knew from the documents provided by the Patriot that Marcano was one of those names.

  “Did you participate in this enhanced interrogation program during your time in Lebanon?” she asked.

  “That’s classified information. That’s why the names are redacted.”

  “Did you do the things in this report?” Paige asked. “Did you strip prisoners down, chain their wrists to the wall, deprive them of sleep for days, and feed them rectally?”

  Gates stood but Solberg didn’t wait for an objection.

  “You do not have to answer that question,” she said to Marcano. And then, turning to Paige: “This case is not about enhanced interrogation techniques. Let’s move on.”

  “I understand, Your Honor,” Paige said, though she really didn’t. Marcano’s role in the torture program revealed a lot about the man’s character. But she and Wyatt could make a bigger deal about that during the jury trial—if there was a jury trial.

  Paige looked down at her outline, flipped a few pages, and began the next set of questions.

  “What is the date of the report you’re holding, sir?”

  Marcano checked the publication page. “December 3, 2012.”

  “During the Obama administration?”

  “Obviously.”

  “The report was filed six years after the events detailed in it?”

  “That’s not unusual. In some cases, the delay is even longer.”

  “So then, whether or not you are named in the report, isn’t it true that the CIA felt like it had been hung out to dry during the Obama administration? Like you had done what President Bush authorized but then risked being prosecuted for war crimes under Obama?”

  Marcano placed the report on the broad rail in front of the witness box and pushed it a little to the side—creating some psychological distance from it. “Those techniques were authorized by the Bush Justice Department, by the DOD, and by the White House. And yes, CIA operatives felt like they had been hung out to dry when the next administration came in and tried to paint those same techniques as criminal.”