Authors: Randy Singer
69
The day after the kidnapping, Alex and Nara talked over breakfast about what they should do. They agreed that going to the authorities right now would be counterproductive. They also agreed that they should keep the matter between themselves. Nobody else could know—not even Shannon or Khalid.
But they disagreed vehemently on whether Nara should testify about their capture at her father’s trial. Alex didn’t think the testimony would be allowed. And if the judge did allow it, he was fearful that Hezbollah would retaliate against Nara.
And maybe against him as well, though he didn’t voice that particular concern.
Nara insisted on taking the stand. In fact, she wanted to be the last person to testify in her father’s case. That way, she could cast aspersions on Hezbollah and leave the commonwealth very little time to counter. Alex said the only way he would consider that was if she agreed to enter the witness protection program.
She found the suggestion laughable. “Let me get this straight. The same government that’s trying to convict my father of something he didn’t do is going to protect me?”
“Actually,” Alex said, “the state’s prosecuting your father. The witness protection program would be the feds.”
“A distinction without a difference.”
At the end of the day, they agreed to disagree. They would have three weeks to figure it out.
* * *
When Alex returned to the United States, Shannon picked him up at the airport. He hadn’t been in the car two minutes before she started firing away with the questions.
Alex chose his words carefully. He felt sleazy about misleading Shannon, but he knew it had to be done. Shannon played everything by the book. If she found out about the train station incident, she would insist on going to the authorities. She would argue that, as Khalid’s lawyers, they had a duty to put Nara on the stand and have Nara describe what happened.
The ride to the office from the airport usually took about twenty-five minutes. With Shannon asking one question after another, it seemed like an hour. Plus, she wasn’t satisfied with generalities and made Alex describe his Beirut experience day by day. He made mental notes of the fibs he told so that he and Nara could be on the same page. He kept trying to change the subject.
Finally, on the third try, he was able to shift their conversation to the upcoming motion to suppress.
“Did you finish the research?” Alex asked.
“Yes. It doesn’t look good.”
“Impossible or highly unlikely?”
“Closer to impossible.”
Alex forced a tired smile. “The difficult we do immediately; the impossible takes a little longer.”
Shannon groaned. “Madison and Associates—we specialize in cheesy clichés.”
* * *
Judge Gerald Rosenthal was the newest of the nine Virginia Beach Circuit Court judges. His main qualification was that he had donated enormous amounts of campaign funds to both Republicans and Democrats at a time when the legislature was looking for a compromise candidate.
Judge Rosenthal was a thin wisp of a man with a strong type A personality, a rounded spine, and a pack-a-day cigarette habit. He’d quit smoking at least seven times but, at the age of sixty-two, figured he had already beat the odds.
Rosenthal started his career as a mass tort lawyer who sued most of the big companies in Hampton Roads. He made a killing from the asbestos litigation and somehow got the lion’s share of Virginia’s fen-phen cases as well. His advertisements were everywhere, and they were classier than most plaintiffs’ lawyers’ ads, at least in Rosenthal’s opinion. He had a pretty narrow focus when it came to politics. Tort reform was bad. Accordingly, Democrats were good.
Once he made his millions, Rosenthal became less of a Democrat and started discovering his Republican tendencies, especially the ones that despised high taxes on the rich. To make up for lost time, he supported Republican candidates with a vengeance, and thus, when the legislature deadlocked on all the more qualified candidates, Rosenthal found himself appointed to the bench.
When Alex learned that the Honorable Gerald P. Rosenthal had been appointed to hear the motion to suppress, it was not welcome news. To broaden his appeal on the Republican side of the ledger, Rosenthal had catered to law-and-order groups, earning the endorsement of the Fraternal Order of Police. In addition, he hated young personal-injury attorneys like Alex, who were stealing clients from Rosenthal’s old firm.
It didn’t surprise Alex that the rookie judge had drawn the shortest straw and been assigned this complicated hearing. What worried Alex was that Rosenthal might get locked into the case and serve as the trial judge. It would be a little like showing up for a basketball game and learning that your opponent’s grandfather had been chosen to ref.
“At least we’d get a lot of smoking breaks during the trial,” Shannon said. “His hands start shaking after an hour.”
70
Alex studied the Patriot Act and associated case law for a solid week after returning from Beirut. Shannon knew the issues better and probably should have argued the motion, but Alex felt like he had no choice. Nara had promised their captors in Beirut that Alex would launch a full-scale assault on the Patriot Act. It wouldn’t do for him to sit back silently and let his law partner take the lead.
Of course, he used a different reason to convince Shannon. “You’re going to be lead counsel on Ghaniyah’s case,” he told her. “And this will be a very unpopular motion. I don’t want Ghaniyah’s jury biased against you.”
Shannon looked at him as if he had lost his mind. “What’s the real reason?” she asked.
Alex made a face and resorted to his second tier of lies. “Because we’re going to lose, and I’m a man. Khalid will accept it better if I’m the one who argues it.”
That excuse was even more lame. They both knew that Khalid respected Shannon.
“Not to mention the fact that the hearing will draw nationwide media coverage,” Shannon said.
Alex smiled sheepishly. If that’s what she wanted to believe . . . fine.
“Busted,” Alex said.
* * *
A soggy nor’easter could not keep the crowd away from the motion to suppress hearing in
Commonwealth v. Mobassar
. The small courtroom was crammed with reporters, lawyers, and onlookers trying to drip-dry from their dash through the rain. The tight quarters and abundance of bodies generated a musty smell that reminded Alex more of a locker room than a court of law. The pool camera for the live video feed was set up in the jury box—a good vantage point to film both the lawyers and the judge.
Alex took off his trench coat and bunched it up next to the front rail. He took a seat beside Khalid at the counsel table.
“You doing okay?” Alex asked, trying to ignore the lens of the TV camera.
“I’m fine. You?”
“A little nervous,” Alex admitted.
A few minutes after Rosenthal gaveled the proceedings to order, Alex’s nervousness disappeared. He believed in both his client and his argument. So what if everybody in the courtroom wanted him to lose?
“This is not the first time the Patriot Act has been used to target a leading moderate Muslim,” Alex argued. “Tariq Ramadan was named by
Time
magazine as one of the top one hundred innovators of the twenty-first century. Professor Ramadan taught at Notre Dame and used his position of prominence to denounce violence in the name of Islam. His visa was revoked under Section 411 of the Patriot Act.”
“Is the government trying to revoke Mr. Mobassar’s visa?” Judge Rosenthal asked.
“No. But my purpose in mentioning it—”
“I didn’t think so,” Rosenthal said, cutting Alex off. “So let’s stick to the issues in
this
case.”
“The government
is
trying to use wiretapping and electronic surveillance evidence against Mr. Mobassar,” Alex countered. “And the way that evidence was gathered violates the Fourth Amendment to the U.S. Constitution.”
Alex launched into a detailed explanation of the Foreign Intelligence Surveillance Act, something that Alex referred to as “FISA,” an act that was later amended by the Patriot Act. FISA established a special court comprised of eleven district court judges with authority to grant or deny applications by the CIA and other federal agencies for electronic surveillance when “a significant purpose” of the request was to obtain foreign intelligence information. According to Alex, this violated the Fourth Amendment to the U.S. Constitution, which requires that the government establish “probable cause” that a crime had been committed before obtaining the authority for wiretaps or searches.
He quoted language from a Supreme Court case that dealt with a different set of circumstances but articulated a principle that applied here: “‘We cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. . . . It is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by eavesdropping devices.’”
Under normal circumstances, Alex explained, the government would have to provide a magistrate with facts supporting probable cause. But under FISA and the Patriot Act, there was no need to show a crime had been or was being committed, so long as the surveillance involved foreign intelligence.
More than fifty thousand surveillance authorizations a year were issued pursuant to the Patriot Act. The government eavesdropped on hundreds of thousands of conversations and intercepted millions of e-mails just to establish patterns of communication aimed at smoking out illegal international activity. The Act even authorized “sneak and peek” searches where agents could break into the homes of persons under surveillance and secretly search through their stuff without ever telling them.
“When the federal government first started the surveillance of Mr. Mobassar’s phone calls and text messages, there had been no honor killings. Their only justification for doing so was the
suspicion
that the Islamic Learning Center was sending funds to organizations associated with Hezbollah to help in the rebuilding of Beirut following the 2006 war. The government does not even claim it had probable cause to believe a crime had been committed.”
Alex paused for a moment and placed his legal pad on the table. He looked Judge Rosenthal squarely in the eye. “I know a ruling in my favor won’t win any popularity contests, Judge, but the Fourth Amendment has served this nation well for 220 years as the last line of defense against the type of mob mentality we see in this case. I’m asking Your Honor to declare the Patriot Act unconstitutional and to suppress the evidence gleaned from the text messages allegedly sent by my client.”
“Thank you, Mr. Madison,” Judge Rosenthal said. He made a few notes because that’s what judges were supposed to do when they wanted to look fair. Alex knew he had done his best, but that feeling in the pit of his stomach was back. He was pretty certain that his best hadn’t been good enough.
Rosenthal told Taj Deegan he was ready to hear from her.
“The Ninth Circuit Court of Appeals is probably the most liberal court in the nation,” Taj began, “and even that court was not willing to do what Mr. Madison just requested. The Patriot Act has resulted in over four hundred convictions arising out of terrorism investigations since September 11, 2001.
“The government has always had the authority to gather foreign intelligence information without meeting the probable-cause requirements of the Fourth Amendment. Our Constitution is a wonderful thing. But it should not be used to strip the government of its ability to protect the United States from foreign enemies, including terrorists.
“Mr. Madison is correct in his assertion that the original basis for the wiretap on his client’s phone was the mosque’s suspected support of Hezbollah. I will not apologize for a government that conducts surveillance on those suspected of supporting terrorist organizations. Reduced to its simplest form, Mr. Madison’s argument is this: You tapped my phone because you thought I was in league with terrorist organizations. As a result, you discovered that I ordered honor killings of Muslim women. Therefore, you should throw out the evidence.”
When phrased that way, it sounded ludicrous even to Alex.
“In other words, suspected terrorists can get away with murder so long as their crimes are not technically terrorism,” Taj Deegan continued. “I’m pretty sure that’s not what our founding fathers had in mind when they passed the Bill of Rights.”
The prosecutor reminded Rosenthal about the war on terror and the numerous court decisions upholding various provisions of the Patriot Act. She must have said the word
terrorism
fifteen times,
justice
ten times, and the phrase
law and order
at least five. After she finished by asking Judge Rosenthal to uphold every single provision of the Patriot Act, Alex half expected “Yankee Doodle” to start playing.
Instead, the judge announced a ten-minute break.
* * *
Ten minutes turned into twenty, and Alex figured the judge must have had time to burn through at least three cigarettes. During the wait, Khalid told Alex that his argument was “compelling.”
Nara pulled Alex to the side. “We’re going to lose, aren’t we?”
“Probably.”
Alex was right. Judge Rosenthal returned to the bench, posed for the media camera, and promptly denied the motion to suppress. He reminded everyone that the country was still at war with terrorists. He held that the Patriot Act contained adequate safeguards to ensure that the CIA and Justice Department did not go overboard in their surveillance and searches. He even added a bonus that Taj Deegan had not requested—saying that the honor killings in this case might themselves be acts of terror. He didn’t just rule against Alex’s motion; he annihilated it.
The day could have been a complete loss. But Alex had one more trick up his sleeve.
“Is there any other business for the court?” Rosenthal asked. It was meant to be a rhetorical question; his gavel was already raised, ready to come down and signal an end to the proceedings.
Alex jumped to his feet. “Actually, there is one thing.”
Judge Rosenthal sighed and laid his gavel down.
“Since the court has just held that wiretaps under the Patriot Act can be used against my client, I am requesting a subpoena to the Department of Justice to reveal any phone conversations, text messages, or e-mails they might have obtained under that same act for Fatih Mahdi’s phone and computer.”
From the look on the judge’s face, Alex’s maneuver had caught him totally off guard.
Take that!
“If surveillance under the Patriot Act can be used to convict a defendant,” Alex continued, “then certainly that same defendant is entitled to surveillance under the act if it might prove his innocence.”
Taj Deegan sprang up. “We don’t even know if there is any such surveillance.”
“Let the Department of Justice tell us that,” Alex responded. “All I’m asking for right now is a subpoena that would allow me access to such surveillance if it does exist.”
“That might compromise national security,” Deegan countered. “That’s the whole purpose of the act.”
“Then I’ll agree to a confidentiality order so that only my client and I can look at the information,” Alex suggested. “I’ll clear it with the court before I use any of the information at trial.”
The lawyers both paused, and all eyes turned toward Rosenthal. Stymied, he did what judges do when they have no idea how to rule. “That’s an interesting issue, Counsel. I’ll need both sides to submit any authorities they want me to consider within seven days. I know the trial is scheduled to start on the third of December. I don’t intend to postpone the case based on this last-minute request. But I’ll need some time to research this point.”
This time, Rosenthal didn’t ask if the lawyers had any other business. He banged his gavel and called it a day.