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.
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:
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.
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, [the main character] 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.
Published by Astor + Blue Editions LLC, 2013