Extraordinary Rendition by Paul Batista

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 longexperience 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