Washington Lawyer

Books in the Law

From Washington Lawyer, February 2015

By Patrick Anderson and Ronald Goldfarb

Pay Any Price book coverPay Any Price: Greed, Power, and Endless War
By James Risen
Houghton Mifflin Harcourt, 2014

Review by Patrick Anderson

Pulitzer Prize-winning New York Times investigative reporter James Risen has written a disturbing backstage look at the war on terror, one that focuses not on soldiers and battles but on the little-known stories of bureaucrats, contractors, politicians, and assorted hustlers for whom the war became an orgy of corruption, greed, illegality, power seeking, and waste.

Risen believes that the George W. Bush administration, caught flat-footed by the 9/11 attacks, was all too willing to break laws and waste billions of dollars in an attempt to take the initiative against an unexpectedly resilient enemy. He is also scathing about Barack Obama’s role: “Obama normalized the post-9/11 measures that Bush had implemented on a haphazard, emergency basis. Obama’s great achievement—or great sin—was to make the national secrecy state permanent.”

Risen details how billions of dollars were wasted, stolen, or simply vanished in the early years of the war in Iraq. Billions of dollars in cash were given to American military officers, supposedly for rehabilitation programs, but often used as slush funds. Risen names two officers who, after returning to America, began depositing hundreds of thousands of dollars in hometown banks. Both were careful to deposit less than $10,000, the level at which banks must report cash transactions. Both came to grief because they didn’t know that banks are also encouraged to report lesser deposits they deem suspicious. Risen reports that between 2004 and 2008 there were at least 35 such convictions, but he says these were the small fry: “The biggest thieves have been far more elusive.”

Risen discusses the $1.6 billion flown by three Chinook helicopters to a Kurdistan bank in 2004—intended for “powerful leaders whom the Americans wanted to keep happy”—that was never seen again. Risen found one U.S. official who was concerned about the vanishing billions: Stuart Bowen, an associate counsel in the White House, was sent to Iraq to investigate financial abuses. But when Bowen took his job too seriously, his friends at the White House withdrew their support. When he tried to locate $2 billion believed stolen and hidden in Lebanon by Iraqi political leaders, Risen reports, the CIA wouldn’t discuss the matter, the FBI said it had no jurisdiction, and the U.S. ambassador in Lebanon wouldn’t let him into the country. The theft of billions of dollars in Iraq has been ignored, Risen argues, because the truth would embarrass too many people in high places.

In another chapter, Risen introduces “an overweight, middle-aged, incorrigible gambler” named Dennis Montgomery who advanced from the gambling tables in Las Vegas to a lucrative career as a technical genius who supposedly could bring al Qaeda to its knees. Aided by a friendly member of Congress, Montgomery began peddling “object recognition technologies” that he said could help the Air Force’s drone program by identifying individual faces on the ground. Even grander claims followed:

Montgomery . . . was able to convince the CIA that he had developed a secret new technology that enabled him to decipher al Qaeda codes embedded in the network banner displayed on the broadcasts of Al Jazeera, the Qatar-based news network. Montgomery sold the CIA on the fantasy that al Qaeda was using the broadcasts to digitally transmit its plans for future terrorist attacks. And only he had the technology to decode these messages, thus saving Americans from another devastating attack.

By late 2003, Montgomery convinced CIA officials that his technology could pinpoint specific airline flights to the United States from France that al Qaeda had targeted for destruction. Excited CIA officials took the news to President Bush, who ordered the grounding of numerous flights to the United States. But French officials, outraged to have had Air France flights canceled, demanded facts and concluded “that the whole thing was a hoax.”

In a chapter titled “Too Big to Fail,” Risen examines KBR, the Houston-based firm that became the military’s largest contractor for war-zone services. At its peak, KBR had more than 50,000 personnel and subcontractors working in Iraq. It proceeded to run up huge profits even as it beat back efforts by both government whistleblowers and private citizens to challenge its power.

Risen details three examples of KBR’s might. One concerned hundreds of huge “burn pits” that the company operated at bases in Iraq and Afghanistan, producing smoke that entered the lungs of hundreds of thousands of Americans. Dr. Steven Coughlin, an epidemiologist, was hired by the U.S. Department of Veterans Affairs (VA) to help run the largest health survey ever conducted of veterans of the two wars. He and other doctors found a clear correlation between burn-pit exposure and higher rates of asthma, bronchitis, and other respiratory damage. Coughlin considered this equivalent to the damage caused by Agent Orange during the Vietnam War, but the Pentagon and the VA resisted his findings for years.

Meanwhile, KBR was fighting back against veterans seeking damages for health problems caused by the pits. A federal judge in Maryland dismissed a class action suit, ruling that since KBR was working on behalf of the government, it could not be held liable to the soldiers. By then Coughlin, having been charged with insubordination by his superiors at the VA, had resigned.

Cheryl Harris was told in 2008 that her son, Army Staff Sgt. Ryan Maseth, had been electrocuted while taking a shower at his base in Baghdad. The Army was vague about the details, but Harris’s quest for the truth led to KBR, which was responsible for maintenance and repair at her son’s building and thousands of others. Harris found enough evidence that KBR had failed to maintain the building properly to force the Army to launch a probe that resulted in her son’s death being listed as negligent homicide.

But charges were not pressed, and later Army lawyers told Harris that the cause of death had been changed back to accidental. One Army official told her privately that if she wanted justice, she would have to go to court. Harris brought a wrongful death case against KBR. A federal judge dismissed her case, but an appeals court reversed the dismissal. Early in 2014, KBR appealed the case to the U.S. Supreme Court.

KBR faced another adversary in Charles Smith, a civil servant who supervised the Army’s contracts with companies that provide services to troops overseas. Under the terms of its contract, KBR would be reimbursed for all its costs only after they were approved by the Army. But when Smith demanded justifications of its cost estimates, KBR said the war zone was too chaotic to provide them. When Smith threatened to stop payments, the Army fired him. Risen often cites the desire of high-ranking military officials not to offend KBR and other contractors whom they view as potential post-Army employers.

Risen’s discussion of the United States’ use of torture—embraced by U.S. officials from President Bush on down but delicately renamed “enhanced interrogation”—begins with the story of a soldier named Damien Corsetti who was assigned to be an interrogator at Abu Ghraib, the notorious prison outside Baghdad. Corsetti was given little training, but was told that the men he would question were not prisoners of war but “enemy combatants,” and, thus, did not have the protections of the Geneva Conventions. He would later admit to inflicting a great deal of physical and mental abuse on prisoners, although he hated what he was doing and soon was smoking hashish to ease his own pain, sometimes sharing it with the men he was torturing.

After torture became an issue, Corsetti was among the enlisted men brought to trial. A military jury acquitted him of all charges after less than a half-hour’s deliberation. Risen suggests that the jury was telling the Pentagon and the White House to stop scapegoating the little guys. Corsetti returned to civilian life a heroin addict. He was eventually admitted to a VA hospital for PTSD and classified 100 percent disabled.

Risen takes a long, scathing look at those at higher levels—including the CIA, the U.S. Department of Justice, and the White House—who knew that torture was both illegal and ineffective but bowed to the wishes of the president and his senior advisers. He credits Justice Department lawyers with helping to create the myth that “enhanced interrogation” was somehow not torture, although the same methods were involved, if usually denied.

Risen’s chapter on domestic surveillance by the National Security Agency (NSA) showcases three heroes: Bill Binney and Tom Drake, both NSA officials, and Diane Roark, a staff member for the House Permanent Select Committee on Intelligence.

Before the 9/11 attacks, Binney was working to improve NSA’s fragmented system for organizing intelligence. He intended to create a system with built-in protections against illegal domestic surveillance. But after 9/11, Binney was told that the new system should permit the warrantless wiretapping of Americans that the agency’s lawyers had earlier warned against. When his objections were ignored by his superiors at NSA, Binney took his concerns to Congress, in the person of Diane Roark, who after years with the Intelligence Committee knew exactly what was legal and not legal at NSA.

“What he told me shocked me,” Roark told Risen. “I thought this was a rogue operation, I couldn’t believe this was approved, because it was clearly illegal and unconstitutional.” An alarmed Roark wrote top aides to the senior Democrat and Republican members of the Intelligence Committee to warn “that an illegal operation was under way at the NSA.” A senior Republican staff member warned her never to mention the matter again.

Finally, Roark obtained an interview with Michael Hayden, who headed NSA, and pressed him on why NSA and the White House had ended the restrictions on domestic surveillance. Risen reports, “Hayden told her that the lawyers had approved the warrantless wiretapping program based on the president’s wartime powers as commander in chief. He added that even if the secret program ever became public, he would still ‘have the majority of nine votes.’ Roark took that to mean that Hayden believed that a majority of the Supreme Court would back him and the Bush White House in a constitutional showdown.”

After Roark retired, another NSA official, Drake, took up the fight, only to be assured by the agency’s acting general counsel that the domestic surveillance program was legal, approved by the White House, and none of Drake’s business. But the issue would not die. Concerned Justice Department lawyers began to raise questions and threaten resignations. This led President Bush to agree to a supposed compromise on what could be gathered; this, Risen says, eased some consciences but in truth came to nothing.

By October 2004, Risen and fellow Times reporter Eric Lichtblau had prepared a story on NSA’s warrantless wiretapping, but when they showed an advance copy to NSA officials, the White House brought intense pressure on the Times to kill the story, which officials insisted would gravely damage national security. The story was killed.

Risen took leave to write a book. When it was completed, he told his editors that it would include what he knew about the NSA’s domestic surveillance program and about the paper’s bowing to White House pressure. The editors were furious, but, unable to stop the book, the Times ran the story in December 2005, creating a firestorm of controversy at the news of the government spying on its own citizens. Risen’s book, State of War: The Secret History of the CIA and the Bush Administration, was published in January 2006.

The Bush administration responded by launching an investigation into suspected leakers Binney, Drake, and Roark, all of whom had their homes raided by the FBI.

In time, the government focused on Risen himself.

In the summer of 2007, the Justice Department began a criminal investigation into his book’s “unauthorized disclosure of classified information.” Risen refused to cooperate with the investigation and eventually was summoned to testify in the trial of a former CIA employee whom the government charged with passing classified data to him.

Risen refused to testify, and the trial judge agreed to quash the subpoena, but that decision was reversed by a 2–1 ruling from a panel of the U.S. Court of Appeals for the Fourth Circuit. In June 2014, the Supreme Court refused to hear Risen’s appeal.

Risen, like other reporters before him, has said that he would go to jail rather than reveal a source. Attorney General Eric Holder has said in the past that he would not force any reporter to go to jail for doing his job. In December 2014 the government prosecutors said they wanted to ask Risen questions, but would not ask him to reveal his source. A meeting was scheduled for early January to clarify what questions they wanted to ask and whether Risen was willing to answer those or any questions. Pending that meeting, Risen’s fate remained uncertain as of this writing.

Risen calls Pay Any Price his answer to “the government’s draconian efforts to crack down on aggressive investigative reporting and suppress the truth in the name of endless war.” His book is the story of a government out of control. It’s also American reporting at its finest. There are people in its pages who belong in jail, but the man who wrote the book is not among them.

Patrick Anderson, a novelist and journalist, reviews fiction regularly for The Washington Post. 

Gray Mountain coverGray Mountain
By John Grisham
Doubleday, 2014

Review by Ronald Goldfarb

“Life could be hard in the coal fields.”

John Grisham, the prolific bestselling author of 27 novels, and several other books, mixes skillful storytelling with lawyer adventures, a combination he has successfully plumed for decades. His last book, Sycamore Row, was his best, and a hard act to follow. Gray Mountain, while not as good, is sure to be a best seller, coasting on the draught of Grisham’s brand and his keen eye for presenting a legal thriller.

In Gray Mountain, Grisham presents a landscape of lawyering possibilities in a rookie lawyer’s unexpected travels from a boring and tedious associateship in a big firm in New York City to an unpaid internship in a small town general practice in rural Virginia. The central character, Samantha Kofer, goes through a culture shock when her firm reluctantly releases many of its lower-level employees due to a recession-caused cutback. Samantha accepts a job in a legal aid clinic in Brady, Virginia, a holding pattern in her career, an interruption she expects to be short-lived.

Work in southwest Virginia wasn’t in her life plan. Her father is a disgraced but still active class action lawyer who arranges funding of national litigation for a piece of the profits. “I play matchmaker between the guys with the cash and the guys with the cases,” he tells a young activist lawyer. He is divorced from Samantha’s mother, a veteran U.S. Department of Justice business lawyer. Samantha is not a chip off the family block, and her relationship with them is strained.

In her prior legal life, Samantha never had been in a courtroom, nor faced real life problems of people in distress as she would in Brady—rancorous will feuds between angry family members, rough FBI investigators, poor people unable to cope with the oppressive vicissitudes of their stressful lives, creepy corporate lawyers, and exploitive corporate managers. But more dramatic is her exposure to the dangerous world of strip mining coal in Appalachia, “where laws are often broken, rules are ignored, regulations are flouted, communities are divided, and the land itself is under attack from Big Coal,” as Grisham’s publisher synthesizes the story.

Surprisingly, after her sudden switch of lifestyle, Samantha feels freed from her slavish, meter-running job as a well-paid associate in “the awful world of Big Law.” She was, she realizes, fearful of waking up at 40, single, and having wasted her youth. She finds a job through her firm’s human resources department with the Mountain Legal Aid Clinic, a low-budget, free legal service operation for low-income clients. Its office is housed in an abandoned hardware store in Brady—population 2,200—in southwest coal country, “about three hundred miles away in distance and a century in time.” Its staff: “another attorney, a paralegal, a receptionist, all women.” Samantha’s down-to-earth new boss promises her skeptical rookie assistant, “You’ll catch on quick, and you’ll love it because you’ll be helping people who need you, people with real problems . . . we love our clients and they love us.”

Samantha quickly gathers a bunch of walk-in clients, people with “nothing but hard luck and misery.” She wings it, knowing nothing about the issues they bring to her, wary of her role, and afraid of going to court. In a few months, Samantha is “drained from the shock and fear of looking at the emotional wreckage of real humans, desperate people with little hope and looking to her for help.” Gradually, she grows into her work, comes to enjoy her role, and even wins her first case in court, a small matter by Wall Street standards, but one that fills her professional soul with a sense of accomplishment. And, yes, there is a love interest—well, maybe not love, but sex.

The parallel story, one that Grisham tells with informed precision, is the brutal impact of strip mining on the environment and economy in that part of America. It is a dangerous world of labor troubles, violence, corruption, and human degradation. The regulators are too cozy with the coal companies. Grisham tells that story through the antics of the colorful and fearless trial lawyer and his adventurous brother who draw Samantha into their world where “the coal companies run roughshod over the land and the people because they have the money and the power . . . destroying our mountains, towns, culture, and lives.”

The best part of Gray Mountain is the passion of Samantha’s lawyer friend who fights the good and tough fights, in court and out, battling to even the contrast between “the beauty of the ridges against the poverty of the people who lived between them.” “He wins and he loses, but he is always on the attack.” His roots are in Gray Mountain. Here, Grisham’s literature is best, and readers will be edified by the characters’ stories. Samantha’s trial lawyer instructor tells her, “Life near a strip mine is never dull. The ground shakes and cracks foundations. Coal dust fills the air and blankets everything. The well water turns orange. Rocks fly all the time . . . It’s an ongoing rape of the land, a new assault every day.”

Samantha is drawn into their no-holds-barred court battle reluctantly, but she learns from her mentors that “a license to practice law is a powerful tool when it’s used to help little people.” Grisham explains the many ways the coal mining industry exploits the non-union workers—ignoring dangerous work conditions, fighting legitimate claims, polluting local water supplies, covering up their misdeeds, funding hospitals and courts to ensure they are given preferential treatment. Samantha’s work on behalf of those little people, particularly one who is devastated by the black lung disease that is endemic in coal mining areas, changes her life.

Everything comes crashing down in an exciting ending I won’t disclose. The battle between the “good guys” and the “bad guys” comes to a dramatic conclusion in and out of court. Samantha’s life is changed: “As a lawyer, she had never felt so worthy. As a person, she had never felt so needed.” She now must face her essential life decision: return to her faster, richer life in New York, or become a part of the challenging if isolated life in Brady. As one of Samantha’s friends in Brady wisely puts it to her, “Who’s smart enough to plan the rest of their life?”

Laurence Leamer’s recent nonfiction book, The Price of Justice, describes coal mining life and politics through the lens of a landmark U.S. Supreme Court case. Grisham presents it in a fictionalized story that the general public, not likely to pick up Leamer’s book or examine at the legal cases on the subject, is likely to read and understand. Gray Mountain tells the story of the vagaries of Big Law and Big Business in high-stakes legal battles, along with the everyday causes of local public interest lawyers who are up close and personal with their clients fighting for a measure of justice to simply survive. Grisham teaches as he entertains.

Ronald Goldfarb is a Washington, D.C.- and Miami-based attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. E-mail him at rlglawlit@gmail.com.