Mark Steyn on the Conrad Black trial and the problems with American jurisprudence, and the New Republic’s unfortunate anti-military piece this week.
HH: Of course, as we’re happy to do every single Thursday he’s available, we begin with Columnist To The World, Mark Steyn. You an read all of Marks work at www.steynonline.com. But if you go to www.hughhewitt.com, you’ll find I have linked his epic article on the trial of Conrad Black. Mark, good to talk with you.
MS: Hey, good to talk with you, Hugh.
HH: You know, I’m fascinated by this piece. I’ve read it a couple of times today. It’s really wonderful court reporting and writing. How long did this take to do?
MS: Actually, it took quite a long time, because it was pulled together in the sort of couple of weeks that the jury was deliberating. And in fact, I took off for Spain and a few other places in the course of that, so I had a few days away from Chicago to mull my thoughts. It’s very interesting, you know, because you’re a lawyer, and I guess you understand the American legal system. And I’ve always thought of it as vaguely similar to the ones that I grew up in, which is you know, Britain’s and Canada’s and Australia’s and Singapore’s and the Bahamas’, all of which are vaguely compatible. And lawyers often move around between those different systems with relative ease. But this seemed a very different legal system, the four months I was in Chicago.
HH: There’s a lot to talk about in this article. I’m going to go right to the central point, buried deep. Because the presumption of innocence which lies at the heart of English law is so corroded in modern U.S. jurisprudence that it seems entirely natural for the government to seize the proceeds of a crime before it’s been proved you’ve committed one. And I guess the backdrop of Nifong in the Duke, the Libby trial, the…Rush talking today about Michael Vick’s already been convicted, that that is, I think, the takeaway from the Conrad Black trial, there are lots of them, but one of them is the presumption of innocence is not really strong much anymore.
MS: No, and I think that is for particular reasons in the American system, for example, the reliance on plea bargains, which is an American phenomenon. British commonwealth countries, except, oddly enough, I think Pakistan, it’s not really a phenomenon, the idea that you roll everybody, you pressure people to turn state’s evidence or whatever, and in return for getting a three month or six month or two year sentence instead of thirty or forty or fifty years, and then in the end, they all agree to testify against the Mr. Big. That in itself, I think, is extremely bad. I also think this idea of the state seizing assets, as I said, which happened in this case, before it’s been proved you’ve committed a crime, Conrad Black, and it’s no secret, you know, he was my old boss and he’s a friend of mine, he sold his Park Avenue apartment. The government seized the $10 million dollars he got from the sale of that apartment on the grounds that it was the proceeds of a crime. Now that meant that he couldn’t afford to hire hotshot, fancy pants lawyers to defend himself against the accusation that this was a crime, because they’d seized $10 million dollars of his. And as it turned out, he was acquitted of this particular crime in Chicago, but apparently the United States government is still keeping the $10 million dollars, and has no plans to give it back to him. I find that extraordinary.
HH: It is.
MS: I think that’s the same kind of thing that would happen in Zimbabwe.
HH: It does smack of kangaroo justice.
MS: And I don’t make those comparisons lightly.
HH: Yeah, it smacks of kangaroo justice. My question is did Brendan Sullivan really say $25 million dollars?
MS: Yes, he did. And you know, he demanded $25 million dollars to take the case. Now I don’t know whether he…I occasionally do that if I’m asked to give a speech somewhere I don’t really want to give a speech. And I’ll ask for $25 million dollars, just because I don’t particularly want to give the speech, and it’s a good way of saying no. But in this case, I think it might be that he either just didn’t want to, or basically that is the kind of retainer that these guys operate on. And it’s not entirely clear to me what you get for spending that amount of money.
HH: Well that is, I think, the brilliance of this. I’m going to pass this out to my law students this year, because you shine a light on bad lawyering that often gets overlooked because journalists don’t recognize bad lawyering. But these two lead counsels come off, I mean, the guy’s a mob lawyer. You better have someone start your car, Mark Steyn…
HH: …because you’ve…he’s pretty much sliced and diced here. How could it have gone this badly wrong?
MS: Well, you know, I think there are things that…Conrad Black, for example, is probably ranks with me as one of the most pro-American non-Americans on the planet. And he had this noble idea that twelve good men and true would give him a fair hearing. What I think he didn’t realize were these particular features of American law. Another thing that struck me, for example, is the way every law in America is created by the legislature for a specific purpose, and then kind of metastasizes under ambitious prosecutors and court rulings to encompass anything you want it to. Conrad Black was charged with racketeering. You recall that the previous famous celebrity defendant in Chicago was Al Capone, who was a mobster who was convicted on income tax fraud.
MS: Conrad Black, if you believe the government’s case, was guilty of income tax fraud, but they charged him as a mobster. That inversion tells you a lot about how American law has gone under the last 70 years. He’s also, he was successfully convicted of obstruction of justice. This is the first time that particular law has been applied extraterritorially, i.e. outside the United States, except with reference to witness tampering. In other words, if a witness escapes to Jamaica, and you have him whacked in Kingston, you can be charged with obstruction of justice or whatever there, if you try and prevent him from testifying. But aside from witness tampering, it’s never been applied extraterritorially, and I find it extraordinary that these laws can just kind of expand to whatever happens to suit a prosecutor’s fancy.
HH: You also got me to thinking, because it is sort of one of those rules that is very rarely broken, you don’t let your defendant take the stand. But you wonder if Scooter Libby and Conrad Black, and every other person, ought to go out there and let Conrad be Conrad, as you put it out there, let Libby be Libby, because you don’t want the other side, in this case, Patrick Fitzgerald in both cases, to define you down.
MS: Well, and I think in both cases, Scooter Libby, for example, I think wound up just being defined by the years of the anti-war left barrage against him. Nobody knew who Scooter Libby was. He was just the kind of insert name here. He was effectively a stand-in, he was the understudy for Karl Rove and Dick Cheney, and all the other guys that they wanted to toss in jail. And so I think it’s all very well saying don’t take the stand if it’s a murder case or whatever. But if it’s a case that’s essentially about your character and your integrity, then I think that it is a huge gamble not to take the stand in your own defense, particularly if you’re someone who, as in this case, you know, he was, Conrad Black, my boss, is a member of the House of Lords, he ran a Canadian newspaper group, I mean, it’s not clear to me that…you cannot even fit him into the sort of stock figures of central casting…
MS: …if you’re a Chicago jury. He’s just someone like, he might as well have landed from Planet Zongo.
HH: Well, that does come through, and in fact, I became interested, and interested in Conrad Black leading this. I knew he had a lot of newspapers, I did not realize he was, you know, it’s the time to save England kind of character, larger than life. How close of a friend is he?
MS: Well, you know, I would have said five years ago that there were a lot of people who were, had more well-thumbed pages in his rolodex. Now a lot of them have stopped calling, as a friend of mine wrote in a London paper the other day. Where are the presidents and lords when you need them? You know, he was a confidante of princes and prime ministers, and a lot of them aren’t returning his calls anymore. I’m happy to say, I’m happy to go on returning his calls, because I think particularly on this obstruction of justice charge for which he’s got 20 years, that is actually a miscarriage of justice, and I’m happy to do what I can to get that reversed.
HH: Well, as I wrote on my blog today, they better incorporate by reference the entire article into their appellate brief, because it’s very, very persuasive. Has he kept the same legal team for the appeals, which is a completely different set of talents?
MS: Well, he’s gone for the sort of specialist appeals lawyers. But you know…and I wish him well on that. As I said, I think given the fact that this obstruction charge is the first time it’s been applied extraterritorially, I mean, I find it very hard to see why a Canadian CEO, clearing out his office in Canada, can be obstructing justice in a U.S. criminal case which hasn’t even been charged yet. And that does seem to me, as you said, kangaroo court type stuff.
HH: Well now, given…I want to transition to talking about what the article means in terms of journalism, because I believe the byline’s become the brand here. How intensely interested was Canada in this trial?
MS: Well, for example, the last…that piece was written for MacLean’s magazine.
MS: I had dinner with the publisher a couple of days ago, and he told me that on the final day of the trial, MacLean’s recorded twice as many hits on the website as they ever have before since they launched that magazine. It’s a 100 year old magazine.
MS: It’s Canada’s Time magazine, basically. And they, I would say the same level of interest in the United Kingdom and various other parts of the commonwealth. I mean, it is something that people have strong views on. There was a TV show that sort of basically devoted every nightly edition to the trial, and came live from Chicago for the duration. So it was big up there.
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HH: Mark, I want to switch over to the New Republic and the story that they published this week, the Baghdad Diarist, the observer now revealed to be Scott Thomas Beauchamp, I guess is his name, a private, genuinely existing, but not quite certain about his allegations. What do you make of this mess? What do you make of the New Republic?
MS: Well, I think that this guy is a very strange guy. If you read his blog that he wrote up ’til about September, 2006, he apparently enlisted with the object of going to the Army, and going to Iraq, to gather kind of credibility for a subsequent career as a writer. And we can have arguments about whether that’s a good idea. I mean, clearly, it’s a sort of…it’s very enterprising of him to figure out such a strategy. But what it does do is it destroys the argument of that column he wrote. He wrote a column claiming that he abused a woman whose face was melted and burned and disfigured, and that somebody else wore a child’s skull on top of his head for a day, and that somebody else ran over a dog. And he said all these things were examples of how dehumanizing the war was. And he said to one of the other guys, did you run over dogs back home in Indiana, and the guy looked at him blankly. Well, one thing we do know is that this guy wasn’t dehumanized by war, because before he got to Iraq, on his blog he was writing, you know, war fantasies of the same luridness as he wrote in this New Republic piece before he’d ever set foot in Iraq. So it wasn’t the war that dehumanized him. He was writing these fantasies before he even got there. So I think in a sense, whatever happens, I do think it calls into question the basic premise of the New Republic’s piece.
HH: Yeah, the…my friend and yours, John Podhoretz is arguing now the only issue was and remains whether the stories Beauchamp told us in his diarist were matters of fact or embellishment of tales he heard around the base, or were invented out of whole cloth. That’s the key issue, but I think the bigger issue for the magazine is why they ran it, and what their editorial standards are, Mark Steyn.
MS: Yes, and I think that definitely does come into play, Hugh, in that there is, there is simply more to it than just a guy discovering that war does terrible things to people. I mean, clearly it accorded with a particular view of the New Republic. And I find this very sad, you know, because the New Republic has actually been one of the saner voices on the center-left in this last four or five years, and I find it very sad that in fact, they should wish to characterize the military by the standards of this rather strange creative writing class alumnus.
HH: Now I made the opinion known today that I think the New Republic is anti-military, because pro-military magazines would not publish something like this, that its intention was not to entertain, but to characterize and inform people’s opinion about the military. And is that fair, in your eyes?
MS: Well, I think a lot of people do not understand the military, and they don’t want ot understand it, and that’s why you have this thing, you know, they’re children, or refer to them as your children in Iraq, your children. And you’re talking about people in their 20’s and 30’s and early 40’s. And they’re not children. They’re grown up. They’re often, you know, they’re actually in middle age, technically, going by American life expectancy, some of them.
MS: So they’re not children. And the other thing you have is they’re sort of victims. I mean, I’ve had a ton of mail today saying oh, yeah, Steyn, you mock this guy, even though he’s been dehumanized by the war you’ve supported by Bush and Cheney. This is what it drives them to. Well, that is nonsense. That is nonsense. War has a different effect on all kinds of people. Terrible things are done in every war. Terrible things are done by Americans, and by all the good guys in every war. But the vast majority of armed forces in the armies of civilized countries behave in an honorable way. There is a reason why you can persuade Americans and Canadians and Britons to talk about what went on in the war, and more of them will open up and talk about it, than you can when you ask Germans or Russians or Japanese of a similar age.
MS: Because septuagenarian and octogenarian Russians and Germans and Japanese, a lot of them did terrible things, and witnessed their comrades doing terrible things. And that is not generally the rule of the British, the Canadians, the Australians and the Americans. So I think, simply as a proposition, the idea that this is of general value, this piece he wrote, is absurd. And it’s even more absurd when you realize he was writing these fevered fantasies long before he set foot in Iraq.
HH: Now I have a theory, and I’ll try it out on you, which is that the anti-war left is panicked, and the symptoms of that panic are showing up all over…the attack on General Petraeus for appearing on my show, the defense of the New Republic for rushing this into print, the defense of the private who wrote it, even if it’s not fabricated, but more so if it is, and the Senate, Harry Reid blocking border security last night, coming back and allowing border security this morning, I think they’re acting as though they realize the surge is working, and they’re way out on a limb which is about to crack, Mark Steyn.
MS: Yes, I think in a sense, they’ve been misled by the numbers, by the fact that you know, Bush and the Iraq war, support for both of them is in the basement. It’s in the basement, I think, for two reasons. Obviously, there is a substantial portion of the American people who thinks the war is wrong, we should have never gone there, and they want to lose the war because they think it will be Bush’s defeat, not America’s. But there are an awful lot of people who have been checking out on this war, because they believe in winning the war, and they’re actually ashamed by the tone that comes from the political class in this country, which gives the impression on cable news 24/7 that it’s only interested in kind of fighting the war long enough to find a discreet way to quietly withdraw without it causing them political damage. In other words, I think Americans get behind this war when we’re on the offense, and we’re clearly in it to win, than when it’s just the sort of being for it rather sort of in a desultory and defensive fashion. And I think that’s where their problems with Petraeus and what’s happening in Anbar Province and parts of Baghdad is beginning to panic them, as you say.
HH: Victor Davis Hanson often comes on and reminds people about the summer of 1864. Prior to that, Lincoln was in terrible shape, politically. The war was stalemated. He found a commander and turned it around quickly. Do you think we might be in that same situation a year from now?
MS: Well, I think this is slightly different in that when you’re fighting the Civil War, you know, you’re up against an enemy that are, you know, in that case, your fellow Americans. And you kind of more or less know what the rules are. A lot of the problems we’ve had in Iraq, and in this broader struggle is that faced with an enemy that is depraved, we sometimes recoil from ruthlessness. I believe it’s possible to fight a war tough and hard and ruthlessly, but honorably. And generally speaking, successful wars are prosecuted ruthlessly, but honorably. That doesn’t mean you go around wearing children’s skulls on your head, and killing dogs in residential neighborhoods, and sneering at disfigured women. But it does mean that when you’re in a fight, you recognize you’re in a fight, and you fight it to the highest standards of the country you represent. But you’re going in there determined to win.
End of interview.