Extraordinary Rendition (14 page)

Christina, although she was used to the focus that Carlos could bring to certain events, was aware of the special intensity in his expression as he watched the broadcast. The spell didn’t end when the report dissolved into a commercial for a cell phone service, an image of two cute, wisecracking girls talking into their phones in a restaurant as a trim, beautiful man walked by them, blessing them with an alluring glance.

“What’s the matter, Carlos?”

Instinctively he let go of the thought of telling her that these were the three stores that Hussein had carefully spelled out that morning.

Later, while Christina slept, Byron roamed his apartment, repeatedly gazing out the windows at the streetlights, the cobblestoned pavement, the many dark windows of the buildings in his neighborhood, and the white, green and blue lighting at the curved height of the Empire State Building.

That seductive and welcome sensation he had had before the news broadcast—that drifting toward a restorative sleep—was shattered.

“V
ERY WELL,” JUDGE JUSTIN Goldberg crisply said, “we have the court reporter here and we can start. As we do, I want to make the record clear that this is a special hearing in the case of United States of America against Ali Hussein. This proceeding is being held in my chambers, Room 1652, in the United States Courthouse at 500 Pearl Street, New York, New York. I have ordered that this be conducted as a sealed hearing in this case, which has been designated in the order of the president of the United States as a so-called Category 103 case under the Anti-Terror Executive Order 962.”

Dressed in an expensive business suit rather than his black robes, Justin Goldberg paused politely when the court reporter signaled that he was having a problem with the equipment on which he was transcribing the judge’s words. During that pause Byron Johnson leaned forward at the conference table in Justin Goldberg’s richly decorated chambers. As he watched Henry Jones, the court reporter, concentrate on the expensive equipment, Byron tried to control the steadily escalating anger he had felt over the last two days, an anger that deepened as he watched Justin Goldberg relish the studied, pontificating role he was playing.

On a business-like nod from Henry Jones, Goldberg continued. “I called this conference in response to a letter I received yesterday from Mr. Byron Johnson, the attorney for
the defendant, Ali Hussein. As soon as I received the government’s response, which was stamped ‘Confidential—National Security Material,’ I scheduled this conference and imposed the Category 103 designation. Mr. Johnson has been advised that, as a Category 103 proceeding, this conference cannot be disclosed to anyone. As a result, these proceedings are being held here, in my chambers, not in open court. The transcript is to be sealed. The court reporter is not to divulge the existence of this proceeding or the transcript to anyone. Until I make a further order, only Mr. Johnson, the United States Attorney’s Office, and I will have copies of the transcript. I want to make it clear that under the president’s executive order anyone who violates these conditions will be subject to the punishments spelled out in the executive order.”

Byron’s edgy impatience was plain in his voice. “Judge, I want the record to be clear, just as you want it to be, that I have no idea what the executive order says about punishments or anything else because it’s not published and not available. I’m being required to comply with something that’s a secret.”

“Mr. Johnson, isn’t it the case that my law clerk explained to you yesterday when I agreed to schedule this conference, at your request, that there is an executive order that applies to this case, that it is sealed, and that it in turn provides for the sealing of proceedings in this case in the event the Justice Department so requests and I so determine?”

“I heard that. He said that to me. I just want the record to be clear that I find this utterly unacceptable. My client is entitled to an open process. This should happen in court, with access by the press and the public. The process should not be governed by executive orders that are not published and are not available. I should not be subjected to the threat
of sanctions that apparently are spelled out in an executive order that no one other than the court and apparently some government officials are aware of.” He paused. “‘Kafka-esque’ doesn’t capture the full essence of it.”

Byron knew before he spoke, and saw as he was speaking, that Justin Goldberg’s fury would be intense but quiet. It was. “This conference does not need to be held at all. I have acted in response to your letter, Mr. Johnson. There are issues you want me to consider, isn’t that right, Mr. Johnson?”

Without answering, Byron stared into Justin Goldberg’s eyes. Goldberg, disengaging from the stare and turning to the court reporter, said, “If Mr. Johnson wants me to proceed, as he apparently does, to deal with the issues he raised, then I have to proceed, unless I am ordered by an appellate court to do otherwise, under the rules that apply in these new and unique types of cases. For the record, and I will not encourage Mr. Johnson to respond to this, he doesn’t have to represent this or any other client whose case happens to fall in the category covered by the executive order. There are other free lawyers who can be appointed to do this.”

“Let me say this again, Judge, so that on behalf of Ali Hussein I am as clear as you are: I have never been given a copy of this unpublished, unavailable executive order. If it provides for sealed hearings such as this, then my client and I object to it. We also object to potential sanctions for violation of an order whose terms we do not know.”

“Do you want to have this hearing, Mr. Johnson, or not? I have other business I can attend to.”

“Judge, my client is even now being threatened and physically harmed in prison just two blocks from this courthouse. Government agents are visiting his cell at night. I have reason
to believe my conversations with him are monitored and recorded. All of that and more is spelled out in my letter. I think that is the kind of business the court should attend to.”

Goldberg was a very smart and very adroit man. If Justin Goldberg wanted to see to it that Ali Hussein was convicted of terrorism and money-laundering and sentenced to death, then Justin Goldberg knew that he had to craft a record in this case that would appear balanced, proficient, and competent enough to survive the scrutiny of appeals. So Byron wasn’t surprised when the judge said, “We’ll move forward in an orderly way, then. I can state for the record that it is clear that Mr. Johnson has been advised that the executive order provides among other things for the imposition of criminal contempt on anyone who violates the terms of the confidentiality that now attaches to this particular phase of the case. I am certain everyone else in this room is aware of the conditions of confidentiality and the sanctions for violations. Now I want to have everyone’s appearances so that the record is clear as to who is in this room. You go first, Mr. Johnson, since you already have.”

“Byron Carlos Johnson, for defendant Ali Hussein.”

“Hamerindapal Rana, Executive Assistant U.S. Attorney for the Southern District of New York. With me is Arlene Berg, also an Assistant US Attorney.”

Three men sat along the same side of the table with Hal Rana. Byron glanced at them, expecting each of them to speak. None of them did. One of the men was in a blue business suit and had a dapper moustache. Justin Goldberg said, “Mr. Rana, I understand that the three gentlemen with you are federal agents, is that right?”

“They are.”

Goldberg nodded. “Very well.”

“Judge,” Byron said after a pause in which it became clear the men weren’t expected to identify themselves, “what are their names and what agencies are they with?”

“Under the terms of the executive order they are entitled to be here.”

“And my client and I are entitled to know their names.”

“No, you’re not.”

Byron Johnson was steadily letting go of all the trappings, rules, customs, taboos, and tacit understandings by which he had lived his professional life. One abiding custom of the kind of big-firm, big-company corporate litigation he had practiced was that you didn’t confront a judge, you didn’t challenge or embarrass him or her, you acted at all times to preserve the collegial demeanor, you didn’t shout, you didn’t snicker, you didn’t dissent, you didn’t complain, you laughed when the judge laughed. Byron had often called it the “sycophant system of justice.” Byron long knew that for lawyers like those he associated with, this was a channel that led to success, reputation, and prestige.

“There is a rich irony in that,” Byron said. “My client isn’t allowed to be here, at a conference that involves his safety, and three unidentified men can bring themselves to the table and I’m not allowed to know who in the world they are.”

Even the agile, supple-minded Justin Goldberg was silent for a moment as he absorbed what Byron had just said.

“You know who they are, Mr. Johnson. They are federal agents.”

Byron raised his hands, palms up, a gesture of mock understanding.

Like an acolyte, one of Justin Goldberg’s law clerks placed neatly in front of him what Byron recognized was a copy of his own letter and what he assumed was Hal Rana’s letter in response. He hadn’t been given a copy of that letter. It was a single page and contained, Byron imagined, just a terse statement that his own letter raised national security concerns.

Byron was right.

“Let the record reflect,” Justin Goldberg said, like an overly formal British actor reading a script, “that the court has in front of it a letter dated yesterday from Mr. Johnson raising issues about the conditions of his client’s confinement and concerns about alleged violations of his client’s confidential attorney-client relationship with him. The court has also received a letter from the United States declaring that, pursuant to Executive Order 962, the subjects raised by the Johnson letter implicate national security interests.”

Into the pause Byron said, “What does that mean?”

Justin Goldberg had a neatly carved profile. Byron was able to stare at the profile because the furious judge was no longer even glancing at him. Goldberg knew that the only important part of this conference was the clarity of the printed record that would reveal itself in the typed transcript that Henry Jones, that almost invisible presence, was preparing. That typed record didn’t reflect nuances, gestures, or attitudes—the elements that gave a conversation meaning. Goldberg, whose small hands were visibly trembling with anger, chose his words carefully so that the cold written transcript would later read with formal precision.

“The presidential executive order makes it crystal clear that federal judges do not have the authority to review precisely
those issues the defendant wishes to bring to the court’s attention. Like any federal judge, I lack the authority under the order to review the circumstances under which this defendant is held.”

“Judge, we’ve cited cases in our letter in which federal judges have done precisely that—authorized investigations into whether the government, through agents acting at the request of federal prosecutors, have attempted to interview defendants who are in prison awaiting trial.”

Justin Goldberg simply continued dictating. “I have reviewed all of the relevant executive orders, as well as orders issued by the National Security Court, and I find that any steps I might take to inquire into the matters this letter has raised would be unauthorized.”

“My client has been, and I believe is now being, tortured. That can’t be allowed to happen.”

Still not turning to Byron, Justin Goldberg continued: “The relevant rules mandate that judges abstain from even considering where prisoners such as defendant Hussein are held, how they are confined, what they read, who observes them, who speaks to them, and even how frequently they are permitted to bathe.”

Byron did not intend to stand down. “I’m raising, so that the record is clear for whoever might review this transcript in the future, issues that relate to his physical survival, to his mental well-being, and to his dignity as a human being. He has been the victim of practices like waterboarding, physical abuse, sleep deprivation, and continuous playing of loud rap music with obscene lyrics that are offensive to his religious beliefs, and these practices are continuing.”

Intently, Justin Goldberg went on: “As to the other branch of Mr. Johnson’s letter—an unsupported suggestion that his conferences and communications with his client are being tapped or intercepted, monitored and recorded and videotaped—this, too, under the relevant orders is beyond the court’s ability to consider or evaluate. A federal prison for a defendant in Mr. Hussein’s position is not a place in which he is entitled to any expectation of privacy or privileges. Mr. Johnson still has every right to meet with and speak to his client, and his client if he wishes has every right to speak with Mr. Johnson about any subject relating to Mr. Hussein’s defense of these charges. Mr. Johnson and his client must decide how they wish to proceed and what they wish to say during those encounters. Only discussions between them that relate to legal advice and legal issues are protected by the attorney-client privilege. If they discuss non-legal issues, then they talk at their peril.”