Christina was strong and perfectly built, and it was an exciting pleasure to watch her as she ran, stretched, and hit the ball. But more fascinating and exciting to Byron was the nape of her neck. She wore her black hair in a tight knot. Loose tendrils of hair fell to the sweating skin on the back of her neck. That sight overpowered him. His lust was intense.
Byron Johnson had never felt as uneasy in a courtroom as he did now. It was late on a Friday afternoon in Miami. The hearing had already lasted more than an hour, and the visible impatience of United States District Judge Ursula Betancourt was dripping from every haughty, weary-sounding word she uttered.
“Mr. Johnson, you still haven’t given me a single statute, rule, or precedent for the order you’re now requesting.”
For years, Byron, as a lawyer for clients in big corporate cases had on his side what he knew was the competitive advantage in a legal system weighted heavily in favor of the interests he represented. He had spent a career defending corporations accused of antitrust violations in an era when more and more federal judges rejected antitrust claims more and more often. And he had also spent years defending companies accused of securities fraud when rule after rule steadily undermined the pursuit of those claims. In the fields of Byron Johnson’s expertise, it was simply the case that laws passed over the last three decades and the conservative judges appointed since Reagan became president-even the judges appointed by Clinton and Obama-made it easy for Byron Johnson and other big-firm lawyers to protect the companies and executives they represented. The law, as it had come to exist, simply operated in their favor. The conservatives had gradually occupied the field.
Byron Johnson was standing at the podium. “Judge, there are constitutional issues that make these new laws on detention suspect.”
“Detention, Mr. Johnson? Do you mean the new laws on terrorism?”
“I don’t want to debate semantics, Judge.”
“Semantics? I’m looking at the title of the new law. It says ‘terrorism,’ doesn’t it?”
“That word isn’t used in the Constitution, Judge.”
Judge Betancourt was forty-two years old, appointed to her lifetime position by the second Bush. She had very black hair and that aristocratic Hispanic look that Byron Carlos Johnson’s own mother had. Byron thought that she could easily have been one of the associates or young partners in his firm; in fact, he knew from what Christina Rosario had reported to him after an Internet search that this young judge had worked as a lawyer in a Republican law firm in Miami, a firm to which SpencerBlake had often referred clients. The anonymous Internet entries by lawyers who knew her said she was smart, autocratic, often courteous to lawyers who practiced the same kind of law she had spent her career in but icily skeptical of lawyers who represented plaintiffs or criminal defendants.
“Mr. Johnson, what is it that makes you think your client is even entitled to constitutional protection?”
He had been waiting for this question since the day he first decided to file a challenge to Ali Hussein’s interminable imprisonment, his solitary confinement, his claims of torture during his years overseas, and the strict time limits imposed on his meetings with Byron. He had asked Christina to research precisely the question Ursula Betancourt was now asking: did the Constitution give Ali Hussein as a foreign national arrested overseas the right to a speedy trial, to effective representation by a lawyer, to freedom from cruel and unusual punishment and to other constitutional guarantees? Christina reported back to him that there were no decisions at any point in the last hundred years that definitively answered that question.
Byron was evasive, hoping to re-frame the conversation. He said, “Mr. Hussein was a legal resident of the United States.”
“Don’t you think I know that? I did read your papers. Now get back to my question.”
“Anyone arrested in the United States has a right to due process.”
“But he was arrested in Germany, wasn’t he?”
“He had a right to return to the United States.”
“But he didn’t, right?”
“He was arrested in Bonn before he could do that.”
“What’s the significance of that? He was carrying a Syrian passport. He could have intended to use it. He could have seamlessly gotten back to Syria.”
Byron had been involved in hundreds of these jousting contests with judges. Many of them enjoyed the back-and-forth and the sophisticated spontaneity of the game. Even Byron often enjoyed it. But this judge, he sensed, had a stinger in her tail.
“There’s absolutely no evidence in the record that he intended to leave the U.S. permanently,” Byron said.
“He wasn’t just arrested out of thin air because the agents enjoyed the sport of seizing people in Bonn, Germany. Perhaps your client had wind of the posse chasing him and left here under the guise of going for a business trip to Europe.”
“Judge, he has a wife and children in this country.”
“He does, Mr. Johnson? And how do I know that? Because you tell me so?”
“He told me that. I see that as a reliable source of information.”
Her expression conveyed her skepticism. “Really?” She changed the subject. “He’s been designated an enemy combatant, hasn’t he?”
“He could have easily been designated Attila the Hun.”
She sharply slapped the wood on her bench. “I would expect more from you, Mr. Johnson, than a facetious comment.”
When was the last time, Byron wondered, that a judge had scolded him? He couldn’t remember. It may never have happened.
“It’s a strange constitutional world, Judge, in which the United States Government has the right to hold a person indefinitely, without charges, in what have been intolerable conditions of confinement, just by giving him a label.”
“But Congress decided to pass a law that gave the government the right to do that, and the president signed that law.”
“Judge, let’s face reality here. This is a regime in which the government has in effect suspended habeas corpus and negated the constitutional rights to trial, due process, and freedom from cruel punishment.”
“There you go again, Mr. Johnson. Those are grand sentiments. I don’t see any decree from the president suspending habeas corpus. And you haven’t shown me why Congress and the president are not entitled to treat this person you say is your client in precisely the way it is treating him.”
“Judge, the chair beside me-the chair in which every federal prisoner has a right to sit during a vital hearing-is empty.”
“It’s empty, Mr. Johnson, because the law says the government doesn’t have to bring him to court if the government decides that it’s a risk to security to have him here.”
“Where does this all end, Judge? We are in entirely new and dangerous territory. What if the government simply issues an order saying that Mr. Hussein is guilty and has been sentenced by the Justice Department to life in prison?”
She waved a dismissive hand. “Keep yourself to why you forced us to be here, Mr. Johnson. You filed a motion that frankly I consider frivolous. Don’t waste my time with what could be or might be in a world that might have been or may never come to be.” She paused. The air conditioning in this windowless, wood-paneled courtroom in Miami was cold. “I have to tell you, Mr. Johnson, that for a lawyer of your long experience I frankly think that these motions you’ve filed are frivolous.”
Frivolous. It had become a loaded word over the last twenty years in the world of federal litigation. Calling a lawyer’s motion frivolous often led to imposing big money penalties on the lawyer as well as the professional stigma of having been sanctioned for what was called frivolous conduct. Byron flushed at the use of the word, which he had sometimes in the past invoked against an opposing lawyer but which had never been turned on him. Ursula Betancourt was threatening him, and even in the artificially cold courtroom he experienced a sweaty sense of frustration and now, with the use of the word frivolous, a sharp pang of resentment. For the first time in his career, he was no longer, he realized, a select member of the choir.