Joint Review of “Extraordinary Rendition” by Paul Batista

What would it be like for an American lawyer to have the job of defending an accused enemy of the state in a dictatorial country? It would be much like fictional Byron Carlos Johnson’s undertaking in Paul Batista’s Extraordinary Rendition, except Johnson was working in the United States of America. Post 9/11, there were many changes in the legal system in response to concerns for national security, including establishing a new category of “enemy combatants,” whose rights are extremely limited. Batista’s novel takes this factual state of affairs somewhat further.

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Byron Johnson is a successful partner in a large New York law firm. He has been asked to represent Ali Hussein, a suspected Al Qaeda money manager. Hussein has been the subject of “extraordinary rendition,” the practice of sending prisoners to countries that allow torture of those prisoners. Hussein was held and routinely beaten for several years in various countries, but has not been charged with a crime, and has not been allowed to see any visitors.  The U.S. government has finally decided to bring Hussein back to the US. for trial.  Johnson accepts the case on a pro bono (without charge) basis. The government allows Johnson to speak to Hussein, but only for very brief meetings.   

Johnson is not even told what the charges are against Hussein.  The government insists that Johnson should just get Hussein to confess, because the need for “national security” overrides any democratic principles relating to the rights of the accused. But Johnson wonders:

…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 a freedom from cruel and unusual punishment and to other constitutional guarantees?”

It’s a reasonable question, but the answer is fairly clear: No.

Johnson’s work on behalf of Hussein begins to take so much time (on a non-paying) basis that for this and a few other reasons his partners expel him from the firm.  Nevertheless, he soldiers bravely on with the assistance of Christina Rosario, a beautiful Columbia law student who had worked for his firm as a clerk the previous summer.  Johnson’s burden is greatly increased because, not only is he not given a copy of the indictment, he is also denied access to the government’s evidence due to “national security” concerns.  

[The state secrets privilege is a common-law evidentiary rule that permits the government “to block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security.”  (Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983)  The Department of Justice (DOJ) under George W. Bush radically expanded the use of the state secrets privilege, transforming the privilege, according to critics, into an alternative form of immunity that shielded the government and its agents from accountability for systemic violations of the law.]

Johnson enlists the aid of Simeon (“Sy”) Black, a free lance reporter closely modeled on Seymour Hersch.  Through Black’s contacts, one of whom is a very competent private detective, Johnson learns a great deal about some shadowy (presumably CIA and Department of Homeland Security) thugs who are dictating case strategy and management to the government’s lawyers.  

All of the people helping Hussein come into danger themselves, as the tension ratchets up for a riveting conclusion.

Separate discussion by Jim and Jill:

Jim:

One one hand, the novel does not exaggerate its depiction of the legal rights of “enemy combatants,” which are virtually nonexistent.  Enemy combatants can be held as prisoners of war until the war has ended.  But of course a critical question is, how will we know when the war on radical Islam has “ended”?  As the situation stands now, these “enemy combatants” are not entitled to the protections of the Geneva Conventions, which apply only to recognized (uniformed) armed forces of legitimate states.  The government may, but does not have to, try them for a crime. (Just because you’re a “criminal” doesn’t mean you are not also an “enemy combatant.”) It may do so if it thinks it has a good case that can be presented without jeopardizing important national secrets.  Otherwise, enemy combatants just have to wait in limbo (or very uncomfortable confinement) until the government is convinced that the “war on terror” has concluded.

On the other hand, Batista’s story does not ring true in two important respects.  

First, in the book, the government blatantly attempts to suborn the attorney-client relationship by strong-arming Johnson to turn on his client to obtain information.  That seems unlikely to me.  The government will put a lot of pressure on a lot of people, and it may make it very hard for defense attorneys to obtain information, but I am not aware of any accusations of the government trying to induce a lawyer to turn on his client.

Second, the non-lawyer government agents in the book are almost cartoonish Stalinist-like goons.  In real life, they might even assassinate the likes of Ali Hussein, but they rarely if ever are known to go after (in a physical way) journalists or legal staff for representing the accused. 
 
Batista is an experienced criminal defense lawyer, and his sympathies for the accused come through clearly in this book.  His novel can be read as a moderately far-fetched, chilling tale or as a pointed indictment of the current American legal system as applied to suspected terrorists.   I prefer to read it as the former, and give the author some poetic license. 

Jill:

In general, I found the depiction of lawyers to be very good.  I also liked the author’s very apt description of “the sycophantic system of justice” by which lawyers and justices interact with one another.   But I thought the parts involving sexual encounters were cringe-worthy.  This passage, for example, sounds as purple as anything in a bodice-ripper:

Christina looked up at the handsome ridges of his face – the taut cheeks, the sloping forehead that reminded her of Cary Grant’s, the hazel eyes, the high cheekbones – as he in turn stared down at the beauty of her unblemished face and shoulders, the alluring contours of her breasts, and the tautness of her young stomach.”

My own stomach almost emptied at that last part.  I think the author should stick to describing law firms and legal procedure.

I agree with Jim that it is unnecessary to turn government agents into caricatured goons to establish the potential for abuse of the law.  As the great legal scholar Robert M.Cover wrote:  “Legal interpretive acts signal and occasion the imposition of violence upon others:  A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. … Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.”  (Robert M. Cover, “Violence and the Word,” Yale L.J. 95:1601, 1601.)

In addition, there are enough sufficiently frightening legal issues that have arisen from the matter of abducted terrorists without the need to add the cardboard bad guys.  The Executive Branch continues to argue (just as was true in the book) that victims of the “extraordinary rendition” program should not have their day in court.  As Ben Wizner, staff attorney with the ACLU National Security Project, observed, “The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions.” The DOJ continues to assert the “States Secrets Privilege.” Whistleblowers, like the characters of the lawyer Johnson and Sy Black, continue to be the focus of government wrath, rather than those whose illegal deeds have been exposed by them.  In addition, even two senators from the Senate Intelligence Committee claim “the Justice Department had secretly interpreted the so-called Patriot Act in a twisted way, enabling domestic surveillance activities that many members of Congress do not understand.” 

As for acts of torture, documents indeed have revealed that hundreds of detainees in U.S. custody in Iraq, Afghanistan, Guantanamo Bay, Cuba and secret prisons around the globe had been abused, tortured and even killed by government agents using coercive interrogation tactics secretly authorized by the Bush Administration.  There is no way to know if these practices have continued.  At the same time however, as Jim points out, there has been no suggestion that such practices have ever been used against people involved in trying to protect and/or defend the victims of such abuses.  The abuses that have been documented are horrific enough without adding elements to the story that may cause people to doubt all of it.

Finally, Johnson’s initial question, about Hussein’s rights versus the government’s sometimes overzealous concern for national security, never gets answered.  To be fair, it has never been answered by this country, either.

Evaluation: As can be discerned in the Discussion Section, Jim and I each had fairly similar reactions to this book. In brief, we thought the legal portions were well done, the caricatured bad guys unnecessary, and that the “romantic” scenes should have been omitted, or at least, rewritten.

Rating:  3.25/5

Published by Astor + Blue Editions LLC, 2013

August 24, 1954 – President Eisenhower Signs The Communist Control Act Into Law

On this day in history, President Dwight Eisenhower signed legislation outlawing the Communist Party of the United States.

President Eisenhower in 1954

President Eisenhower in 1954

Eisenhower issued a statement upon signing the act that began:

The American people are determined to protect themselves and their institutions against any organization in their midst which, purporting to be a political party within the normally accepted meaning, is actually a conspiracy dedicated to the violent overthrow of our entire form of government.”

Certainly the U.S. was concerned about plots to overthrow governments. In 1953, the CIA was instrumental in inciting the coup that overthrew the Prime Minister of Iran, Mohammad Mosaddegh. (The CIA acknowledged its role sixty years later.) Mossadegh had sought to reduce the semi-absolute role of the Shah granted by the Constitution of 1906, thus making Iran a full democracy, and to nationalize the Iranian oil industry. Not acceptable, as far as the U.S. was concerned. (It was this action that eventually culminated in the Iran Hostage Crisis of 1979.)

Former Iranian Prime Minister Mohammad Mossadegh steps off a plane in late August 1953. He was imprisoned for three years and put under house arrest until his death in 1967.

Former Iranian Prime Minister Mohammad Mossadegh steps off a plane in late August 1953. He was imprisoned for three years and put under house arrest until his death in 1967.

In June of 1954, a CIA covert operation deposed President Jacobo Árbenz Guzmán of Guatemala. The government was in fact the most democratic the country had ever had, but the president expropriated 234,000 acres of land owned by United Fruit, not offering “adequate” compensation to the company. Also not acceptable.

Jacobo Árbenz Guzmán went into exile after the coup and died in Mexico in 1971.

Jacobo Árbenz Guzmán went into exile after the coup and died in Mexico in 1971.

In other words, you could overthrow a democracy if it did not allow the U.S. to dominate the country, but in any event, it would be preferable if you let the U.S. take care of the matter.

You can read the text of The Communist Control Act here, and you can read President Eisenhower’s entire speech here.

“America Is Not For Black People”

This excellent article by Greg Howard is worth bruiting. Howard argues that what happened in Ferguson, Missouri “is about so many second-order issues—systemic racism, the militarization of police work, and how citizens can redress grievances, among other things…”

He further maintains that:

[A]rguing whether Brown was a good kid or not is functionally arguing over whether he specifically deserved to die, a way of acknowledging that some black men ought to be executed. … To even acknowledge this line of debate is to start a larger argument about the worth, the very personhood, of a black man in America. It’s to engage in a cost-benefit analysis, weigh probabilities, and gauge the precise odds that Brown’s life was worth nothing against the threat he posed to the life of the man who killed him. It’s to deny that there are structural reasons why Brown was shot dead while James Eagan Holmes—who on July 20, 2012, walked into a movie theater and fired rounds into an audience, killing 12 and wounding 70 more—was taken alive.”

You can read all of this thought-provoking article here.

America’s Top Corporate Tax Avoiders

Bernie Sanders, the longest serving independent member of Congress in American history, was elected to the U.S. Senate in 2006 after serving 16 years in the House of Representatives. His priorities include addressing the widening income gap in America (greater than at any time since the Great Depression), global warming (the existence and/or seriousness of which is denied by many members of Congress), universal health care, more equitable access to higher education, and improved support for veterans, inter alia.

Senator Bernie Sanders

Senator Bernie Sanders

Pursuant to his attempt to promote awareness of the problems with the income gap in the U.S., he has posted on his website a list of the top ten corporate tax avoiders, with facts and figures for each company.

The list includes General Electric, Boeing, Verizon, Bank of America, Citigroup, Pfizer, FedEx, Honeywell, Merck, and Corning.

It should be noted that Bank of America and Citigroup both benefitted from the fiscal bailouts during the financial crisis.

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About Bank of America, Senator Sanders reports:

    Bank of America received a $1.9 billion tax refund from the IRS in 2010, even though it made $4.4 billion in profits and received a bailout from the Federal Reserve and the Treasury Department of more than $1.3 trillion.

    In 2012, Bank of America operated more than 300 subsidiaries incorporated in offshore tax havens like the Cayman Islands, which has no corporate taxes.

    In 2012, Bank of America stashed $17.2 billion in offshore tax havens to avoid paying U.S. income taxes. Bank of America would owe an estimated $4.3 billion in federal income taxes if its use of offshore tax avoidance strategies were eliminated.

    Last year, Bank of America CEO Brian Moynihan made $13.1 million in total compensation, but he wants to raise the eligibility age for Medicare and Social Security to 70, and make significant cuts to Social Security as a member of the Business Roundtable.

A look at data relevant to Citigroup is similarly egregious:

    Citigroup made more than $4 billion in profits in 2010, but paid no federal income taxes. Citigroup received a $2.5 trillion bailout from the Federal Reserve and U.S. Treasury during the financial crisis.

    Citigroup has established 427 subsidiaries incorporated in offshore tax havens.

    In 2012, it stashed $42.6 billion in offshore tax havens to avoid paying U.S. income taxes. Citigroup would owe an estimated $11.5 billion in federal income taxes if its use of offshore tax avoidance strategies were eliminated.

    Michael Corbat, the CEO of Citigroup, made more than $17.6 million in total compensation last year.

You can read about the rest of the corporations he lists, here.

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August 16, 1819 – The Peterloo Massacre

On this day in history in Manchester, England, cavalry from the British Army charged into a crowd of some 60-80,000 people assembled to demand the reform of parliamentary representation.

The army’s attack managed to disperse the crowd, but some 11-15 were killed and between 400 and 700 people were wounded. The true number of wounded is unclear because many of the wounded hid their injuries for fear of retribution by the authorities. It is known, however, that at least 168 of the casualties were women, four of whom died either at St Peter’s Field or later as a result of their wounds.

1819 depiction of the charge of the Manchester Yeomanry on the unarmed populace in St. Peter's Fields, Manchester.

1819 depiction of the charge of the Manchester Yeomanry on the unarmed populace in St. Peter’s Fields, Manchester.

Peterloo’s immediate effect was to cause the government to crack down on reform, with the passing of what became known as the Six Acts. (You can read the text of these Acts here.)

This new legislation labelled any meeting for radical reform as “an overt act of treasonable conspiracy.” The legislation was passed on December 30, despite the opposition of the Whigs. (Apparently the fight over passage of the acts fills almost sixteen hundred pages in Hansard’s Register!)

[N.B.: Hansard is the traditional name of the verbatim transcripts of Parliamentary Debates in Britain and many Commonwealth countries. It is named after Thomas Curson Hansard (1776-1833), a London printer and publisher, who was the first official printer to the parliament at Westminster. ]

The acts were aimed at gagging radical newspapers, preventing large meetings, and reducing what the government saw as the possibility of armed insurrection.

Because of Whig opposition, as well as calmer conditions in Europe, the Six Acts were eventually dropped.

August 13, 1784 – The India Act Extends Britain’s Control Over India

On this day in history, an Act of Parliament in Great Britain provided for more government control over the affairs of India, which previously had been mainly in the hands of the East India Company.

The East India Company was founded in 1600, when Elizabeth I granted a company of 218 merchants a monopoly of trade to the east of the Cape of Good Hope, although it ended up trading mainly with the Indian subcontinent. The Company began to establish factories in India and eventually accounted for half of the world’s trade with India. Faced with the “opportunities” afforded by weak and dispersed rule in India, the Company became increasingly ambitious and powerful, eventually coming to be the de facto ruler of large areas of India by distributing bribes, negotiating treaties with local rulers, assuming administrative functions, and using its own private armies to exercise military power. Company men themselves became “princes” of India.

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A significant increase in the Company’s influence followed a military action in 1757 (The Battle of Plassey), which established Company rule in Bengal, producing a guaranteed income from Bengal’s taxpayers. The Company used this revenue to expand their military might and push the other European colonial powers such as the Dutch and the French out of South Asia. However, it also dragged the Company even deeper into the business of government, with revenue replacing commerce as the Company’s first concern.

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By 1772, however, the Company was seeking loans from the British Government to stay afloat. A famine in 1770 had wiped out a third of the population of Bengal, reducing local productivity and depressing the Company’s business. Government inquiries revealed corruption and mismanagement. In 1773, Parliament passed the Regulating Act, which established regulations “for the better Management of the Affairs of the East India Company, as well in India as in Europe”. As The Economist observed: “The government subjected the Company to ever-tighter supervision, partly because it resented bailing it out, partly because it was troubled by the argument that a company had no business in running a continent.”

The Regulating Act —although implying the ultimate sovereignty of the British Crown over these new territories — asserted that the Company could act as a sovereign power on behalf of the Crown. However, the imprecise wording of the Act left a number of problems unresolved.

William Pitt’s India Act of 1784 established a Board of Control in England both to supervise the East India Company’s affairs and to prevent the Company’s shareholders from interfering in the governance of India.

A governing board was created with six members, two of whom were members of the British Cabinet and the remaining from the Privy Council. The Board also had a president, who soon effectively became the minister for the affairs of the East India Company. The constitution set up by Pitt’s India Act did not undergo any major changes until the end of the company’s rule in India in 1858.

You can read the text of the India Act of 1784 here.

August 9, 1961 – President Kennedy Nominates First Black For Federal Judgeship in the Continental United States

On this day in history, President John Kennedy nominated James Benton Parsons as United States District Court Judge for Northern Illinois. At the time, Judge Parsons, a native of Missouri and the great-grandson of enslaved people, was serving as a judge on the Superior Court of Cook County, Illinois. The Senate confirmed the nomination on August 30, 1961, making Parsons the first African American federal judge in the continental United States and the first African American federal judge with life tenure. Prior to his appointment, African Americans had been appointed solely to fixed judicial terms on the United States District Court for the Virgin Islands.

In 1992, after 30 years of service, Judge Parsons retired from active trial duty. He died in Chicago, Illinois, the following year, at 81.

Judge James Benton Parsons

Judge James Benton Parsons

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