hearing that there isn’t a single case where a FISA affidavit has been disclosed to a defense attorney.” Crawford grinned. “Maybe you’ll set a precedent. What else would you like?”
“I’d like to see the statements made by the four men who were arrested at FedEx Field.”
“I’m not at liberty to confirm or deny that such men exist.”
“Terry, pictures of the arrest have been on YouTube, Facebook, CNN, and every media outlet in America and abroad.”
“Then serve a motion for discovery on YouTube.”
“Cute, but you know this is bullshit,” Schatz said.
“Hey, I don’t make the rules. Call your congressman and get him to repeal FISA. Me, I’m just an employee of the federal government, and my boss tells me I have to follow the law, which does not allow me to confirm or deny the existence of these so-called arrestees.”
“Can you give me the names of their attorneys?” Schatz asked.
“I’m not at liberty to discuss that.”
“This isn’t a game, Terry. My client is facing serious jail time.”
Crawford sat up and leaned forward. His face was tight and his body language signaled that he had shifted from taunting Schatz to real anger.
“We lost three thousand people on 9/11. There were over ninety thousand people in FedEx Field on Sunday, and your client wanted to kill them all, so I won’t be too upset if he has to serve serious jail time.”
“You’re assuming he had some part in the plot.”
“Oh, he did.”
“You haven’t told me one thing that leads me to believe he was involved with the suicide bombers.”
Crawford got hold of his emotions and leaned back in his chair. “You’ll get discovery at the appropriate time and not a second before. If you don’t like my position, file a motion.”
Schatz looked as though he was about to say something else, but he changed his mind and stood up.
“Thanks for taking the time to see us,” he said.
“Sorry I couldn’t be more help,” Crawford lied.
Seconds after the door closed behind Schatz and Dana, Crawford broke into a huge grin.
“I hope you remember what you just saw, Miss Striker, because that is the way to kick ass and take names in the doing-justice business.”
Ginny nodded and kept her opinion of what she had just seen to herself. Everything Crawford had done went against her basic sense of fair play. She knew that Crawford had complied with the law, but the end result was that Schatz would have no information he could use to defend his client. Ginny had no sympathy for terrorists, but a court would have to decide whether Tolliver was a terrorist. What if he was innocent but he couldn’t defend himself because his lawyer had no information about his case?
Ginny was also upset by Crawford’s attitude. A man’s life might literally be at stake. Crawford was treating the case as if it concerned only him and Bobby Schatz, but the case really revolved around the ability of the government to prove Tolliver’s guilt beyond a reasonable doubt. Ginny was appalled by laws that hid evidence and begged for an unjust result and by a prosecutor who treated a matter this serious as a game.
“C an he do that?” Dana asked when they were out of the building and headed back to Schatz’s office.
“Oh, yeah. The federal rules are barbaric. Most prosecutors don’t follow them to the letter, but under them we aren’t entitled to see the statements of a witness until after he testifies, which means you probably aren’t going to have any time to investigate before I cross.
“Then there’s the Federal Intelligence Surveillance Act. The government attorneys go to the FISA court, which is made up of federal judges. Their proceedings are secret, and it’s almost impossible for a defendant to find out the basis for the search or even that a search occurred unless they decide to use evidence they got using the warrant. And even then, there’s a declassification process that can prevent a defendant from ever knowing the real basis for the warrant.
“What’s worse, the government is allowed to conduct searches and wiretaps under FISA without satisfying the normal Fourth Amendment requirement of showing probable cause that a crime has been committed when it’s trying to get a warrant.
“On top of that you have CIPA, the Classified Information Procedures Act, which sets out procedures when a defendant wants discovery of evidence that’s classified. The defendant can’t get classified evidence unless a judge finds that it’s relevant, and the judge makes that finding in secret. If the government objects after a judge finds the evidence is relevant, the court enters a nondisclosure order and tries to figure out an appropriate sanction for the government’s failure to disclose the evidence it’s decided is relevant to defending the case. And even when there is no nondisclosure order, the defense attorney can only see the evidence if he has a security clearance, and the defense attorney is usually prohibited from showing the evidence to the defendant. If the judge decides that the defendant can see the evidence, he provides it in a sanitized form like a summary or a redacted document.”
“What about the government’s obligation to give the defense evidence in its possession that can clear him?” Dana asked.
“In the Moussaoui case, the defense wanted to interview terrorists who were detained in U.S. custody outside the country to develop witnesses who would testify that Moussaoui’s involvement with al-Qaeda was limited. The court wouldn’t let the defense interview the potential witnesses. The best they got were summaries of intelligence reports they would have been allowed to read to the jury if the case had gone to trial.
“The whole thing stinks to high heaven, but our client is caught up in post-9/11 hysteria, and that gives a guy like Crawford an opportunity to trample on his rights that he’d never have if Tolliver were charged with bank robbery.”
“What are you going to do?” Dana asked.
Schatz shrugged. “I’ll scream and holler and file motions and hope that Crawford gets overconfident and screws up.”
Chapter Thirty-nine
The next morning, Ginny arrived at the DOJ bright and early. She was taking off her coat when Terrence Crawford pushed a multitiered cart into her office. Ginny was surprised to see her boss doing a job that would normally be assigned to a secretary.
“Great news,” Crawford said. “I was able to rush through your security clearance, which means you are now able to organize these top-secret files.”
Crawford scanned the office. When he spotted Ginny’s hole punch, he grinned maliciously.
“Good, good,” he said. “You’ve got a hole punch and I’ve provided you with binders and tabs. When you’ve got the case file organized, bring it to my office. Say by tomorrow afternoon.”
“Tomorrow, but…”
“No buts. There’s a team of lawyers waiting for this material. I imagine this job will evoke fond memories of your days at Rankin, Lusk-the all-nighters, the Saturdays and Sundays at the office when normal people were at the beach or lying around at home doing the Times crossword.
“Well, enough of this idle chatter. I’m taking up valuable time.”
Crawford sped away before Ginny could protest any further. She was appalled by the joy he seemed to take in her discomfort. What a prick! She wondered if Crawford had any redeeming qualities. She sure couldn’t think of even one.
Ginny walked over to the cart. Its three shelves were loaded down with banker’s boxes. In addition to the boxes, three-ring binders were stacked on the bottom shelf. Ginny counted twenty boxes in all. She lifted the cover of one of them. It was filled to the top with paper. She groaned. This was going to take forever; only she did not have forever, she had until the next afternoon.
The first thought that sprang into her head was coffee. She was going to need a lot of it. On the way down to the basement cafeteria, something occurred to her. Security clearances had been discussed by Ginny’s coworkers on a few occasions, and Ginny had the impression that they took a while to get. On the day Crawford moved her over to Counterterrorism, he had mentioned that he was going to try to expedite the process, but he seemed to
