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this again, Judge, so that on behalf of Ali Hussein I am as clear as you are: I have never been given a copy of this unpublished, unavailable executive order.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.