Decency (17 page)

“No. Which leads me back to the firm. Bonnie, did you mention the client’s name to anyone?”

“No, of course not.”

“I didn’t think so but I had to ask.”

“That’s fine, no offense taken.”

“So, Abe, someone with enough of an interest in the case and the capability to get information about it is getting some pretty closely held details. I don’t know who, or how, other than the obvious, the NSA itself could be watching.”

Abe said, “Here’s my take. The media storm over NSA ‘warrantless eavesdropping’ was mostly political. The court cases proved there was no legal merit. And with a different party in the White House now, NSA still does exactly the same thing, and there isn’t a peep about it. Beyond that, it’s hard for me to see how this would be a big enough deal for NSA to spend resources watching us. Besides, they aren’t allowed to gather information on U.S. citizens in the U.S. without a court order. But the real kicker is I don’t think NSA, or any other agency, would let us know they have the information.”

“Exactly.”

“‘Tis a puzzlement.”

“Funny you should say that. He said I was, quote, entering Wonderland, where nothing is as it seems, unquote.”

“What did he mean by that?”

Kelly shrugged
who knows
. “But he acted as if he was trying to warn me of unexpected things. He said to watch out for allegations that the Pierce’s daughter was a traitor, his word, and for me being implicated in her death.”

“That’s quite a stretch.”

“He wanted me not to take it as a threat. In fact, he said pursuing the matter could do ‘great good.’”

“Odd…”

“Yeah. But the problem is, assuming we are as transparent as he makes it appear, what do we do about it?”

“Lowest seniority first, what do you think, Bonnie?”

“Mr. Kramer, my thoughts are we don’t have too many choices. NSA has the capability to obtain the information that this man said he had, so they can’t be eliminated. On the other hand, we have a client and have to pursue that client’s interests, regardless of whether we can do much about the leak, or whatever it is.”

“Okay. Kelly?”

“I believe we have to do something to try to find out about this guy. Though, I don’t know what that might be.”

“I agree with that too. There is one other option. We should take it up with all of the partners. It might be time we upgrade security around our computers and communications systems. I don’t mean to belittle the problem, but when you get right down to it, anyone who is a reasonably good hacker could have gotten into our systems and discovered that we represent the Pierces in the matter of the death of their daughter. The content of the e-mails on the subject would tell them that. Consequently, everything he knew could be learned that way. So, it’s just possible he’s nothing more than a high tech snoop who got lucky. But, that means any of our cases could be subject to the same eavesdropping and that’s not good for our clients.”

“Guess that’s it for now. I’ll keep you posted.”

“No need to. It’s your case. But glad to help if I can.”

Tom, this is just great! We have no documents. We have no witnesses. In short, we have no real case. And still someone has already gotten wind of it and suggested it could be a hazardous enterprise.

Got to make some progress, at least. Probably should warn the Pierces to watch for anything suspicious. Doing that without either alarming them or giving them unfounded encouragement is going to be difficult.

“Jannie! Have their daughter’s papers arrived from the Pierces yet?”

“They should be here this afternoon.”

“Thanks.”

…better check on Bonnie’s progress…

Kelly punched the intercom, “Bonnie, you there?”

“Yes, Ms. Hawkins. What can I do for you?”

“Could you come up for a while?”

“Be right there.”

After just a minute she knocked on the door.

“Come on in. How are you doing on the deadlines I asked you to look up?”

A puzzled look clouded her face.

“I sent it to you by e-mail the day after you asked for it. Did I not address it right?”

“Uh-oh, you’ve found me out. I’m not a good e-mail checker.”

Clicking on the e-mail screen, there it was.

“I’ll print it out.” The printer hummed. “While it’s printing, can you tell me what it says?”

“Sure. Generally speaking the Nebraska lawyers’ memos were spot on.

“For the FTCA, we have to sue within the applicable state statute of limitations and we have to get the administrative claim submitted and acted on first.

“For the FECA we have no deadline on submitting the claim - other than the state statute of limitations - and we have no right to sue other than for wrongful denial of a claim.

“The Whistleblower Protection Act is no help in this case. The whistleblower statute does not extend to disclosures involving classified information. In fact, intelligence agency employees can’t even ‘write their Congressman’ the way other Americans can. They have to take the matter up through the agency itself, using the agency inspector general. You can imagine how readily they would want to do that.

“The Maryland statute of limitations is three years for wrongful death or any other action for which no other statute of limitations applies, and consequently it applies to constitutional tort causes of action.

“And, under the Privacy Act it’s a little complicated but generally the limitations periods don’t start running until the request for access to records or to correct them is made and denied or deemed denied.”

The e-mail finished printing. It was six pages of single spaced, citation-studded, legal analysis. “A glance revealed it appeared to be complete and the conclusions as to each possible basis for making the Pierces’ claim were as Bonnie described them.

“Good, Bonnie. So your take on the best chance of success at staying in court is the constitutional tort theory?”

“Yes. The torture statue doesn’t help at all because it only applies to in custody situations and specifically says it does not provide a civil cause of action. As to wrongful death, we have a problem as to causation. Even if we assume that the case shapes up as abusive psychological evaluation, there is no connection between that and death absent something like stress induced heart attack. We can frame it as an unconstitutional deprivation of liberty, in the sense of the right to be free from emotional abuse. Or deprivation of life either in the full sense of taking life, or in the sense of living free from abusive government action.”

“Under the Fifth Amendment? As I recall there aren’t many successful Fifth Amendment constitutional tort cases. Most of the successful ones are First and Fourth Amendment claims.”

“It’s just my sense that deprivation of liberty ‘without due process of law’ captures the essence of what we might be able to sue for. In other words it doesn’t take a whole lot to see government ‘brainwashing’ as inherently wrong and not something government should have the power to do.”

“I’m concerned we may be borrowing trouble. For example, as I recall, constitutional tort suits are against the individual, not the government
per se
, even though the Department of Justice usually provides representation. Also, they can raise the qualified immunity defense that there has to be evidence the individual knew they could be violating a specific right at the time of the incident. It’s a tough burden. Qualified immunity also cuts off discovery. We have to get enough evidence of guilt before we even get to ask for discovery or we’re out of court.”

“I always come back to this, if there isn’t a right to be free from this abuse we’re no better off than a dictatorship.”

“I like your instincts. There’s still a ton of problems in getting from here to the jury.”

“Evidence.”

“Exactly. We don’t have any. And we’re trying to pin a heinous act on someone, whoever it is, who is not only highly trained but who passed several times more scrutiny, just to get their job, than most people ever face.”

“Well, there is one possibility.”

“Let’s hear it.”

“There is a group dedicated to supporting whistleblowers. They call themselves the ‘Whistleblowers of America,’ or ‘WHOA.’ Get it?”

“Clever.”

“I don’t know much about them. I suspect though that they are used to being regarded as kooks. At least they might have contacts with people who have had similar experience inside the NSA.”

“Are you volunteering to get what you can through them?”

“Honestly, I had assumed you would not put me in that kind of ‘outside the firm’ role. But, sure. It would be more interesting than law library research.”

“Okay. Be very careful and discreet. Just say we are trying to find anyone who has had experience inside NSA. We don’t want the word to spread that we are actually trying to develop a case.”

“Okay, can do.”

The maître d’ of the restaurant in the Ramada Inn near the Baltimore-Washington Airport looked up from his seating chart.

“Good evening, is there a reservation?”

“We are here to meet Mr. Thompson. Has he arrived?”

“Yes, are you Ms. Hawkins and Ms. Cummings?”

“That’s correct.”

“Please follow me.”

The man looked harmless. He had insisted to Bonnie on meeting him here because it was a public place. He said he would not disclose his true name, simply ask for “Mr. Thompson.” Having found him through the whistleblower group it was completely uncertain what to expect.

A burly Celtic with close-cropped, wiry red hair, he wore tortoise-shell style rims on his bifocals. His blue eyes came to an alert, expectant gaze at his visitors.

The maître d’ showed the table and stepped away.

“Mr. Thompson, I’m Kelly Hawkins. This is Bonnie Cummings. Thank you for meeting with us.”

“It is my pleasure.”

The rolling “r” in “pleasure” betrayed an almost certainly Scottish burr. The handshake was a vigorous pumping.

As the group settled down into their chairs, Bonnie took out her legal pad and his eyes darted at it, a hint nervously.

“Mr. Thompson, we’ll need to make notes. If you like, you can read them in their entirety when we finish.”

He eased back in his chair, still cautious. “Thank you, I hope not to be too guarded. But when you’ve been through what I have, you…well, I’m sure you know.”

“To be honest, Mr. Thompson, I don’t know. Even more importantly, please don’t assume I know anything. We’re here to learn.”

“Fair enough. I just thought you would have an idea how NSA operates from the mere fact you’re a lawyer trying to get information about it.”

Bonnie interjected in a smooth, reassuring voice.

“Mr. Thompson, you were kind enough to tell me on the phone that you have had a psychological evaluation at NSA. That is relevant to our interest. However, we don’t know much more than that.”

“Of course, of course. Well, first things first. I’ll answer your questions without giving any information that could identify me or anyone else. That is, assuming the information you ask about is not what they can fire me for discussing. I can’t take the risk of talking about that. If we get to where you need more specific information I will have to have legally binding protection from disclosure, attorney client privilege or whatever is appropriate.”