Extraordinary Rendition (32 page)

Byron knew these things could be taken from the safe deposit box, just as he had learned months ago that all of his diaries, bank statements, and tax returns had been removed from his office, just as his notes on the
Koran
given to him by Ali Hussein and the now-imprisoned Imam in Newark had been taken, just as the world he had created on his computer had been removed, just as the millions of dollars that fleetingly appeared in his bank account had been taken.

And just as the woman he loved had been taken.

And, finally, just as his place in the world had been taken.

As he gazed from his window at the cobblestones of the cold, wind-blown street, deserted except for a few parked cars on a frigid night in winter, he ran through a list of probable takers: Sandy Spencer, who had disappeared from his life as if Byron were a leper; Khalid Hussein, who Byron first believed was a tough but loving brother; the Imam, who looked like a caricature of a Muslim holy man; Jesse Ventura, whose scary intelligence was revealed in his eyes. Or Christina Rosario, whose presence, touch, smell, and energy had made him feel vital and loved.

And Byron Carlos Johnson thought:
What have I stolen from myself?

When he stepped back from the window, he saw the elegant image of himself in the glass. He saw, too, the dark, disfiguring bulk of the holster and pistol draped like a hump over his shoulder and left chest.

What the Christ am I thinking?

He removed the holster and pistol. He put on an overcoat and hat. He went out into the frigid streets with the holster and gun in a knapsack Christina had left in the apartment. As he approached the Hudson River, the wind, bred in Canada and sweeping across the vast country, flowed in an icy torrent from the New Jersey Palisades. It took his breath away.

Byron walked to the end of one of the derelict piers. With the knapsack in his right hand, he turned like an Olympic hammer thrower and sent it into the powerful black waters of the river. He wanted to expose himself naked to the danger he sensed everywhere in his world.

I
T WAS STRANGE AND unsettling to see six U.S. Marshals in combat gear and carrying M-16s standing at each door of the stately courtroom. Ali Hussein, in his baggy green jumpsuit, was visibly shaken as soon as he was brought into the courtroom. As he glanced at each of the armed men, the two female guards in blue blazers who escorted him released him from his handcuffs and took several steps back, as if to be out of earshot of whatever words Byron Johnson and his client spoke.

Byron had learned to judge the meaning of the expressions on Ali’s face, and Ali had become an expressive man after those first encounters in Miami, when his look was remote, almost inscrutable. Now, as he sat with Byron at the defense table, his expression was fearful.

“Why this?” he whispered, his voice almost inaudible, his breath with that sour smell that Byron had long ago recognized was the breath of fear.

“I don’t know, Ali.” He didn’t tell Ali that, when he arrived at the entrance to the courthouse, several plainclothes marshals had intercepted him and taken him to the back elevators that were reserved for judges and their staffs.

“Why are we here, Mr. Johnson?”

“I had a call from the judge’s law clerk an hour ago to tell me the judge was holding an emergency session. I wasn’t told why, I was home, and I’m here.”

To Byron’s left, Hal Rana leaned backwards, utterly at ease in his wooden chair at the prosecution table. There were three other government lawyers with him, a man and two women whom Byron had never seen. One of them stared at the bronze Great Seal of the United States emblazoned on the wall just above the judge’s empty bench. The others pretended to write on notepads.

The large room was utterly still. The windows faced north, overlooking the congested streets of Chinatown, the green dome of an old church, and, further uptown, the layered spire of the Chrysler building glinting in the crisp winter morning light.

At the sound of an invisible hand hitting the inside of the judge’s door and the intonation of the words “all rise,” the lawyers and Ali Hussein stood. Justin Goldberg, carrying a slim folder, walked briskly to his seat. A clerk announced the words “
United States of America versus Ali Hussein
.” Sid Rappoport, the court reporter, was poised above his keyboard like a pianist waiting for the opening cue.

“Good morning,” Goldberg said. “State your appearances, counsel.”

“Hamerindapal Rana, for the United States. With me are Special Assistant Attorneys Larry Goodman, Christine McGuire, and Dimitri Jones.”

“Byron Johnson for Ali Hussein, who is to my right.”

Goldberg glanced up. “Mr. Rana, let me start with you.”

Hal Rana remained standing, everything about his posture and expression relaxed.

“At the last session in chambers I directed the government to prepare and submit by yesterday a confidential memorandum
describing in detail the circumstances under which a video was made of the defendant, apparently as he was being interrogated. The video also depicted the defendant being placed, forcefully, in what appeared to be a bathtub filled with water. I required a description of who the participants were, where the video was filmed, when it was filmed, where the video was kept, how many copies were made, and the identities of the people who received it.” Justin Goldberg paused, staring at Hal Rana.

“We have reason to believe Mr. Johnson illegally obtained a copy of the video and distributed it to the media in violation of the court’s confidentiality order.”

Justin Goldberg’s voice was as precise and clear as usual. “Mr. Rana, my order was directed at you, not Mr. Johnson. I will deal with Mr. Johnson at an appropriate time.”

“I should alert the court to the fact that a grand jury is currently investigating Mr. Johnson for possible criminal activity in connection with this and other matters.”

“Let me say this one more time, Mr. Rana. My order was directed at the government. And I did not receive the report.”

Rana didn’t skip a beat. “Your Honor, the Office of Special Prosecutions has determined that the preparation of that report would entail the violation of highly sensitive national security directives.”

“What exactly does that mean, Mr. Rana?”

“The Justice Department has determined that national security mandates prevent us from providing the report.”

Crisply, Justin Goldberg said, “That fact, Mr. Rana, will have consequences.”

“It won’t have any impact on the evidence the prosecution will present at trial.”

“And why is that, Mr. Rana?”

“We never intended to use the tapes at trial.”

“And I take it that’s why the video was never turned over to the defense, correct?”

“Correct. Even if Mr. Johnson had the tape, it would not help his defense. His client made no statements at all on the video, certainly no statements that could incriminate him.”

“Mr. Rana, Mr. Rana,” Justin Goldberg said, “I know Mr. Johnson’s client made no statements on the video. I’ve watched it several times. Did you expect him to speak when his head was under water?”

Remaining as still as possible, Byron Johnson began to allow himself the belief that Justin Goldberg—mercurial, disciplined, and a slave to the privileges of rank and power—was capable of courage and independence. But Byron had been in this business long enough to know that people like Justin Goldberg were not selected as federal judges because they had demonstrated in their earlier careers signs of dissent or rebellion or tendencies to do the unexpected, the unpopular, or the unconventional. Justin Goldberg, as Byron knew, had a quick and subtle intelligence and enjoyed fencing with lawyers, and this dressing-down of the stately Hamerindapal Rana might be just a performance.

“Can you explain to me,” Goldberg said, “how complying with my order for a description of the source and nature of this video poses national security concerns?”

“A report will likely endanger United States agents.”

“How is that? The report is for me, not for Mr. Johnson or for public distribution.”

“Judge, I am simply delivering a decision that I’ve received from the highest levels of the Justice Department and Homeland Security.”

“But you’re the lawyer in front of me, Mr. Rana, not the Attorney General or the head of Homeland Security. I issued an order, you have told me that order will not be complied with, and I am telling you there will be consequences.”

“Again, Judge, national security requirements complicate all cases like these.”

“Don’t lecture me, Mr. Rana. Let’s put aside the brutality of the tape. Mr. Johnson repeatedly asked—and the requests were reasonable—for copies of any videotapes, recordings, or written transcripts in which his client appeared or spoke or gave statements. And
you
repeatedly told him and me there were none.”

“I did not know about the video.”

“That doesn’t matter, Mr. Rana. And don’t play games with me. When Mr. Johnson asked for videos, recordings, and transcripts, he wasn’t asking
you
personally for them. He was asking the government.”

“No one told me about a video.”

“Enough of that, Mr. Rana. Let me see if I understand. I directed that the government prepare a written report, I laid out what it should address, and I required that it be delivered to me by a certain date. That date was yesterday. And as of today, I’ve been informed that the government will not comply with that order. Is that not the status?”

“It is, but the record should be clear that it is not defiance of the order but national security concerns that have brought this about.”

“Mr. Rana, at the moment I’m concerned about the status, the objective facts, not the reasons. Order, schedule, non-compliance. One, two, three.” He paused, a look of intense annoyance on his face.

Hal Rana said, “In cases like this, there are always going to be complicating factors that don’t arise in ordinary criminal cases. One of those factors is national security.”

“And another factor, Mr. Rana, is to do justice.”

“Certainly, and justice for the United States as well. A jury will need to decide what this defendant did and either convict him or acquit him.”

“And what is my function, Mr. Rana? Is it my role to let you present any evidence you want to present, and let you withhold any evidence you don’t want to present?”

Byron knew that Hal Rana was a flexible and adept lawyer, and Rana now demonstrated that again. “That certainly is not the case, Judge. You have already taken an active role in charting a course for this unusual and very important case. We believe a means can always be crafted to give the defendant a fair trial and safeguard national security interests.”

Byron, impressed by Rana’s well-tempered agility, decided to hold back. He was tense. Ali Hussein was even more tense, a taut presence at Byron’s side. Byron hadn’t looked at Ali; he was entirely riveted to the exchange between Justin Goldberg and Hal Rana.

“I’m not about to engage you in that, Mr. Rana. The correct way to have done this was for the government to have advised me that this video existed. In other words, for the United States to have taken the initiative in disclosing this, and then to have presented in an orderly way the national security concerns that you have.”

“Again, it was never our intention to use the video at trial.”

“Let me make this clear to you, Mr. Rana, so that you can take it back to your supervisor. There may not be a trial.”

“We don’t believe Mr. Johnson’s client will plead guilty.”

Byron felt an almost unbearable anticipation. He stared at Justin Goldberg. He waited for the words that would surely follow Goldberg’s pause.

“That’s not what I mean, Mr. Rana, and you know it. Whether Mr. Hussein pleads guilty or continues to maintain that he’s innocent is up to him. I know nothing about that. What I do know is that I’m considering and will consider appropriate sanctions for the government’s failure to disclose the video and failure to comply with the order to produce the report that was due yesterday. You didn’t even give me the courtesy, Mr. Rana, of notifying me in writing yesterday that no report would be filed.”

“We apologize.”

“Don’t apologize. Apologies are a waste of time. I’m prepared to give the government two more days to file the report I required, and it can include any national security concerns the government may claim. It may be that the government could avoid the sanctions I’m considering if it takes this last opportunity to obey my orders.”

“Sanctions?” Hal Rana asked.

Byron had heard the word
sanctions
invoked so often against him during the long life of the case that for a second he thought Justin Goldberg was now speaking to him.

“Yes,” Justin Goldberg said, “sanctions. And what kind of sanctions, Mr. Rana, will depend in part on what your report says, if you take the opportunity I’m giving you. I can’t sanction you personally, Mr. Rana. I can, however, sanction the government. One alternative is to preclude the use at trial of some or all of your evidence. Another choice I have is to
dismiss the case for prosecutorial abuse. Or I could just reprimand the government.”