But for the time being, Henderson decided to pass. Under the Uniform Code of Military Justice a suspect had to be brought to trial within ninety days of confinement or the charges had to be dropped. Officially Lonetree had been taken into custody on December 24, so they were almost a third of the way through that period. At the rate the government was collecting evidence, and given the slowness of the classification process, he doubted the prosecution would be ready to proceed before the deadline. He was hoping either they would be unprepared to go to trial, which would give him added leverage to make an even better deal, or they would rush their case and make a mistake that would constitute grounds for dismissal.
At the very least Henderson wanted to wait until the Article 32 investigation was held. Often referred to as a “military grand jury,” an Article 32 was a hearing to determine whether enough evidence existed against the accused to refer the case to a general court-martial. Witnesses were called and statements considered, all of which offered the defense an important discovery opportunity. Waiting would enable Henderson to see just how strong the prosecution’s case was. And he was certain the deal would remain on the table for a while longer.
With these thoughts occupying Henderson’s mind, he received a telephone call at home one Saturday evening, and on the line was William Kunstler, the flamboyant civil-rights attorney who had made a name for himself defending minorities in high-profile cases. Kunstler said he had been contacted by Clayton Lonetree’s father and asked if he would participate in the defense of his son at the upcoming court-martial. He was calling to see if the major had a problem with that.
Though the call was unexpected, Henderson was not completely taken by surprise. He knew that the military justice system, in addition to providing a defendant with a military defense attorney, allowed him to request civilian counsel; in cases that generated notoriety this privilege was frequently invoked. And at first blush the idea of working side by side with a legal legend intrigued him. He even allowed the possibility that there might be an advantage to having Kunstler aboard, for just as he had suspected, the charges against Clayton Lonetree were making national news. There being a disciplinary rule that prevented military lawyers from using the press to influence a case, having an experienced, big-name attorney around who was willing to sound off in the press could be useful.
So Major Henderson had replied, “If it’s okay with my client, it’s fine with me. I’ll speak with him tomorrow.”
They talked a while longer—Kunstler asked a few legal questions, Henderson advised him to look into obtaining a security clearance because of the classified nature of the case—and the conversation ended on a pleasant note. But afterward, when he had more time to think about William Kunstler’s reputation for trying cases in the press and how that would play in a court-martial setting, the major began to experience second thoughts.
Abruptly he reached for the phone and dialed the number of the deputy staff judge advocate. Lt. Col. David Breme had been a military judge at Camp Lejeune in North Carolina, and Henderson recalled that Kunstler had once tried a case in front of him. He wanted to hear whether Breme thought Kunstler would be an asset or a detriment.
The deputy SJA was not one to mince words. William Kunstler did not so much put up a fight for his clients, he said, as put on a show for them, and the trial at Camp Lejeune was a case in point. It was a straightforward unauthorized-absence case—a black Marine deserted when his unit was sent to Beirut—but when William Kunstler entered the picture, it became something else. The Marine was now a Black Muslim who had refused to go for religious reasons.
“The government put on a prima facie case for his guilt, and Kunstler used the judicial system as a podium for his political beliefs, and I convicted the guy. Immediately afterward, on the steps of the courthouse, Kunstler announced to the press, ‘This only proves that a black man can’t get a fair trial from the United States military.’ That’s how he plays the game, Dave. And if he can’t be kept under control, you’re going to have a hell of a mess on your hands.”
That was enough good advice for Major Henderson. The next morning he visited Lonetree in the brig and explained what had happened and talked to him about this options. “It’s your call, Sergeant,” he summed up, “but I’d be less than honest if I didn’t tell you that I don’t think your best interests will be served by having Mr. Kunstler as your advocate in a military court.”
Lonetree listened carefully and in the end agreed. He authorized Major Henderson to decline William Kunstler’s offer of representation, and as far as the major was concerned, that was the final word regarding Kunstler’s involvement in the case.
The first Clayton Lonetree’s mother heard about any of this was when the phone rang in her Tuba City, Arizona, trailer a week into January. It was Craig, Clayton’s younger brother by two years, and he was calling from St. Paul. “You got a chair there, Mom?” he asked. “Well, you better have a seat.”
She thought he was joking, even when he enlarged. “It’s about Clayton. He got picked up for spying in Russia.”
“What are you talking about?” she demanded to know. “Who told you that?”
“A journalist called me this morning for a comment.”
After a silence during which the line seemed to go dead, Craig said, “Brace yourself, Mom. It’s going to be all over the news.”
Sally Tsosie was a full-blooded Navajo woman in her early forties, with a broad face, slightly slanted brown eyes, a wide mouth with full lips, and hair that was naturally black and thick, who had been born to the Two Waters Flowing Together clan in a hogan near Big Mountain, Arizona. It was a remote part of the Navajo Reservation, home to some of the most conservative members of the tribe, and she had been raised traditionally—helping her father, a stockman, move the herds and flocks with the change of season; babysitting her nine younger siblings while her mother wove rugs; learning the family history from her grandfather while brushing his long gray hair. But it was the U.S. government’s policy of moving young native people off the Reservation and into urban areas where they could be more easily integrated into the general culture that had determined her destiny.
She’d been eight when she was enrolled in a Reservation mission school run by evangelical Protestants, and three years there were followed by four more years at a boarding school in Brigham City, Utah, where she was occupationally trained as a film librarian. Upon graduation, she’d been given a train ticket to Chicago, where a job awaited her at Esquire-Coronet Films repairing documentary films, and where she shared an apartment with a Navajo girlfriend in a rooming house on the North Side of Chicago that was nicknamed Hillbilly Heaven for the white trash from Appalachia who shared the neighborhood.
Within a year she had met Spencer Lonetree, Clayton’s father. He was a Winnebago Indian, descended from an orphan who had been named after a solitary white oak tree that still stood in a field in Wisconsin; but although his heritage was native, the extent of his Indian upbringing had been the summers he’d spent hoop dancing at the Stand Rock Indian Ceremonial in Wisconsin Dells, a tourist trap and center of attraction for millions willing to pay to be entertained by Indian singers and dancers. He was an urban Indian raised in St. Paul and living in Chicago, where he was employed as the director of youth activities at the Indian Center.