Conrad Black

by A Matter of Principle

  Now the libel suits from 2004 based on the accusations in the Special Committee report, commissioned by Breeden and signed by most of the directors, were reaching the point of depositions. I couldn’t wait to get everyone, especially Breeden, under aggressive questioning. This process was held up now only by the last fling of the libel defendants, before the Supreme Court of Canada, that I had no right or standing to sue in Canada and was merely jurisdiction-shopping, a fatuous argument that had been dismissed by the Superior and Appeal Courts in Toronto, settlement discussions now increased to ramming speed. (I was the only person in history, for a few months, to be simultaneously before the Supreme Courts of Canada and the United States.) Despite the efforts of the other side to dismiss our action as frivolous, my constant response that in that case, let us resolve the other actions that were at issue, and try the libel case, quickly brought them back to what I had always predicted: their absolute inability to face intense questioning on the allegations in the infamous Breeden Report and the shameful derelictions and financial disaster of their own administration of the assets whose control they usurped and milked for $300 million for themselves while vaporizing $2 billion of the savings of the average shareholder whose interests they were supposedly promoting.

  They wobbled and jerked the line, but it was a very unconvincing negotiation. In the end, they conceded a $6-million cash payment to me in respect of the libel action, a significant part coming from their own pockets, as well as $6 million more, almost all to me, in respect of the original phony Breeden action of January 2004, the Interpleader action on division of insurance money, and the feeble effort to take back some of my indemnified legal payments. It was a rich and savoury victory.

  In New York, I finally enjoyed talking face-to-face with the friends who had helped me through these very trying times, with their emails, visits, and supportive blogging and writing on my case. Among these were Roger Hertog, Seth Lipsky, the Podhoretzes, Roger Kimball, The National Review people and other writers and business people with whom I shared an enduring spirit of comradeship, whom I admired, and to whom I was grateful.

  A pleasant and unexpected dividend was a very direct and rather affecting peace overture from Henry Kissinger. He invited me to dinner at his home and we went over it all, briefly and, of course, unrancorously. I told him that I thought he was largely responsible for the myth that I could have settled matters easily at the outset, a fraud of Breeden’s, and that because Breeden had the upper hand, he had rather uncritically accepted Breeden’s version of why our discussions had broken down in 2004. I didn’t blame him for not wanting to become involved and never asked him to, but I thought he owed me a better hearing, and at least benign neutrality. I understood how threatening Breeden could be, and how cautious the advice of Saunders would certainly be, and I knew from many years of observation and discussion with Richard Nixon and others that Henry’s technique in such matters was to go to a neutral corner and stay clear of the fracas, and see what could be put together later.

  I volunteered that it was not my place to remonstrate with a man of his stature at his age on a modus operandi that had obviously served him well in great and world-historic matters, whatever my disappointment in this small case. And I volunteered that I did not believe the claim of the FBI that he had said that he believed me guilty as charged, because I had learned how unreliable the assertions of agents of that Bureau were apt to be. My only litmus test at this point, I told Henry Kissinger, was that if he actually believed that I had committed crimes, we would not be able to repair our relations. If he did not, and could tell me that, privately and without any request by me for a hint of explanation, much less apology; I suggested we put it all behind us and not speak of it again. This is what happened. He telephoned Barbara a few days later, who was astounded to hear from him, and had more difficulty than I did in getting over our differences. He and I soon settled back into the frequent telephone and dinner conversations of historic and international affairs of olden times.

  For the rest of social New York, the habitués of the boxes at the Metropolitan Opera House and the most exalted socioeconomic echelons of the Style section of the Sunday New York Times, I met, quite cordially, in passing with many of them. There were many smiles and kisses, a few small dinners, and I was glad to see them again, but it was over. Our lack of interest is mutual, and, I think, not spiteful or antagonistic. One grows apart. I was glad to have seen them up close, and a few remain good friends, but they and I have moved on in different directions. In one case, I unguardedly got off my chest a few reflections on America that were, in the abstract, excessive, though not inaccurate, and I apologized for them. My apology was accepted, but the relationship was strained. It was the last occasion where the prolonged process of disengaging from the United States, a country I had so admired, and by which I had been so disappointed and offended, was painful. I would like to return to New York some day, and friends are already considering how to facilitate that. I will miss it, as anyone would.

  In all that has happened, these are not great sorrows, just the gentle melancholy of autumn, as one prepares for another season in another place. There are only a few of these prominent New Yorkers whom I remember with any hostility, and I have been grateful to find that time heals most wounds. These will not linger long, and some brilliant friendships remain. As we prepared for the resentencing hearing in Chicago, the U.S. Probation Office produced a very supportive report that clearly raised the question of whether I had ever really been guilty of anything and strongly recommended release for time served. My friends in Coleman had provided a herneating mass of supportive letters and emails and even the correctional personnel had spoken positively. The prosecution is accustomed to the Probation Office parroting its position and was so startled by this turn of events that it extracted two affidavits from Coleman personnel, one a vocational training person and the other a unit manager, that retailed false tittle-tattle, and in one case contradicted what the affiant had said to the Probation officer. We challenged this and demanded subpoenas for these people and the relevant correspondence, and the prosecutors sped backwards like alarmed canaries, claiming that they were not trying to contradict what the inmates and personnel had said in my favour. I now knew the prosecutors and their techniques so well that I was not surprised by their small-minded attack even on my life as a prisoner, with incredible affidavits, one contradicting a signed statement from the affiant, and by their cowardly retreat when buried under a tidal wave of contradictions from the Probation Office and the inmates. Nor was I surprised that when reviewing the dubious affidavits the judge said she didn’t believe them, without rebuking the government.

  Barbara and I returned to Chicago on June 23 for the final hearing in Judge St. Eve’s courtroom the next day. Given that this was the end, I considered my remarks carefully and delivered them directly to the judge at a range of about fifteen feet, from memory, in a firm and fluent, but not bombastic, voice. They are in the Appendix and were widely reprinted and commented on; essentially I repeated that I was not guilty, that the government’s case had been entirely destroyed and had only been revived at all by an unrigorous and far from disinterested act of casuistry by a perverse judge. The prosecutors’ disappointment in the shattering of their case was understandable, but I was not the rightful subject of their vindictive sentiments. I expatiated somewhat philosophically and gave a glimpse, without indiscretion or, I trust, any lapse of taste, of my religious and psychological assimilation of these unbidden events. The judge listened very attentively as I spoke for about twenty-five minutes.

  She had made her decision, and it was not, as I had assumed, possible for her to abandon the pretense that I had actually been convicted of something, however, as I put it in my remarks to the court, “tortuous the process and threadbare the evidentiary basis of the convictions now are.” Though counsel (Miguel, David, and Carolyn) thought the chances of release for time served were about 50-50, Barbara and I did not think St. Eve ca
pable of such a complete implicit abandonment of the prosecution, and it had been her practice up to this point to play it down the middle between Scylla and Charybdis and give something to both sides. I assumed that she was under some importunity, even if it were merely telepathic, from Posner and Fitzgerald to send me back to prison and try partially to validate the entire shabby process that had preceded this climax.

  She had already prepared the ground in her earlier remarks by adding the enhancement of sophisticated planning to the remaining fraud count, although the evidence (uncorroborated and in fact fictitious) only was that I had telephoned Radler and asked if there would be a non-competition payment in respect of the Forum and Paxton transactions, which if true, would not have been improper, much less sophisticated planning for a crime. This enabled her then while rejecting quite emphatically the government’s attempted dismissal of my good conduct while in prison still to have enough enhancement points to send me back. She declared that I was “a better person” as a result of having been sent to prison. I took this as a somewhat self-serving comment by her, auto-felicitation for having sent me there in the first place. But I believe that it is true, and that the experience of being a prisoner conferred on me some generally welcome, increased humility and a broader appreciation of the lot of disadvantaged people. Certainly, without understanding why I had been convicted and imprisoned at all, as I had not committed a crime, I tried, as a principle of my religious beliefs, to extract something useful from the experience.

  Judge St. Eve thanked me for my comments and reduced the sentence from 78 to 42 months, which after the good time reduction and crediting my 29 months already served, was a sentence of an additional seven months and three weeks. Unfortunately, Barbara thought that she was sentencing me to another 42 months, which she could have done, though it would have been very severe, and she fainted, falling sideways on the front bench of the court. I heard the commotion, but assumed that it was reporters rushing out to file that I would be returning to prison. Barbara was revived by people near her and helped from the room to the cramped holding room where we had eaten our lunch during the trial. When I arrived, some very pleasant and professional members of the Chicago Fire Department were just completing their observations that she had not suffered a coronary but only a fainting spell, due to momentary bradycardia. The judge also ordered, finally, the return to me of the $5.5 million plus interest still owing from the seizure of the proceeds of the condominium sale in New York six years before. We returned to the hotel and the next day to New York.

  The judge robotically pretended that there were incontestable convictions in the case and declared that “I scratch my head that you did this,” although by now nothing could be clearer than that I had not done it. But, as with the father of the narrator in Brideshead Revisited, fixated on little fictions, the charade had to be seen out to the end. And as if relieved to be at the end, the judge stood to say “The court wishes you well, Mr. Black,” and then sped from the room. I don’t think she believed any of it at the weary end of the long case (any more than the programmed government witnesses had), but was committed to the script, and some of counsel thought she might still imagine I was guilty of something. There was a brief, concerted media attempt to pretend Barbara was medically in extremis, but, as with so much else, we overcame that.

  Of course, though a disappointment, after so many, it was not a surprise and there finally was an end in sight, and my financial resources, from one source and another, were accumulating. There would be the vexatious nonsense in Campbell’s Posnerian, Red Queen court to deal with and a few other legal harassments and opportunities (including the delectable prospect of the libel suit against Bower), but after the tempests of the last eight years, these would not be too challenging. I was pushing forward with a number of business relaunch projects, and also another book, that I had long researched and began writing just before the end of 2010. This was my strategic history of the United States, almost certainly the last serious historical writing effort I will commit to this country. I will finish a draft of it before returning to custody although the bibliography will probably have to be furnished later by Internet, as most of my sources were shipped back to Toronto. The idea for the book arose from my lectures on U.S. history to rather sophisticated audiences of lawyers and former political activists in prison.

  This is no place for a synopsis of it, but it starts with the genius of the colonial leaders, especially Benjamin Franklin, encouraging the British to evict the French from North America, and then persuading the French in helping to evict the British from America, and goes in fairly clear stages up to the end of the Cold War. It is a great story of a great nation, now in decline, but not necessarily or even probably irreversibly so, and fortunate, at least, that its decline coincides with the Spenglerian collapse of Western Europe, Russia, and Japan; while China and India, the fashionable coming powers, each has nearly 900 million peasants living as they did 3,000 years ago.

  Even at this late stage, the imperishable animosity of frustrated officialdom abides. A security provision has been invoked to prevent me completing my sentence at Coleman Prison, because I might supposedly be a physical threat to the two correctional managers there who gave false affidavits against me. In that now so outworn Canadian branch-plant reflex, there have been challenges to my suitability as one of their honorees, because of this American pseudo-legal charade. It is often hard to believe that these cowardly ambushes will ever end.

  As I conceded in Chapter Five, I had had both the commendable and sinful versions of pride at the onset of these events, have tried to retain the first, and have almost scourgingly confessed and repented the second. In the jungle of large competing beasts where I have been, what happens generally reflects the correlation of forces and sagacity of the combatants and is usually what should happen by laws of that world. I had an haughty spirit, though some of it was optimism and inexperience. I fell, and perhaps my downfall was partially deserved. But the heavy punishment I have received for crimes I did not commit was not deserved, though the chastisement has been educational. Soon it will be on to pastures new, and this terrible American midnight will swiftly fade away. I’m still here, and in all respects I still care about, I will be back, soon.

  New York, New York, July 31, 2011

  POSTLUDE: REFLECTIONS ON THE AMERICAN JUSTICE SYSTEM

  THERE IS UNDOUBTEDLY A VERY LARGE number of capable and completely honest lawyers in the United States, and of courageous and incorruptible prosecutors and judges. The country has a storied and often distinguished judicial tradition, and the guaranties of individual liberty and due process have inspired and helped positively to reform the world, and have been defended and promoted, under provocation, by the steadily mightier and generally victorious armed forces of the United States, incurring, when the Civil War is included, the highest and noblest sacrifice of more than 1 million Americans in mortal combat.

  A serious examination of the U.S. legal and justice systems would be a massive undertaking, and apart from undisputed statistics, my experiences of it are all that I can write about with authority. Such an undertaking is desperately needed. The statistics cited and basic comparative research indicate that in liberalizing the world, the U.S. has steadily undermined its own tradition of respect for individual liberty. As this narrative illustrates, in the shadow of “Freedom’s Holy Light,” terrible abuses and hypocrisies are commonplace in the justice and custodial systems of the land that most noisily and relentlessly celebrates its illumination.

  One of the great ironies of modern times is that the United States is the author and champion of triumphant democracy, but is not now a very well-functioning democracy itself. From the end of the American Revolution in 1783 to the end of World War II in 1945, democracy in the world had progressed very little, other than in the sense that the populations of almost all countries had increased. The British Isles, America, Switzerland, and the Netherlands and parts of Scandinavia were the only democratic
jurisdictions in 1783. And they remained so, with the additions of the British Dominions which had been settled in the meantime, and the expectations of France once a republic was restored, in 1945.

  But when the American strategic leadership concluded that the Cold War was a battle for survival with a deadly rival, and billed it as a fight to the finish between Godless communism and the free world, the pro-democratic pressures generated by the United States became irresistible even though the free world included such doubtful adherents as Franco, Salazar, Chiang Kai-Shek, the Shah, Syngman Rhee, and the bemedalled juntas and Generalissimos of Latin America. The Free World gradually became overwhelmingly, relatively free, and came to include the largest emancipated colonies, especially India, and almost all of formerly Soviet-dominated Europe, almost all of Latin America, and many of the great states of East Asia, including Japan, Indonesia, South Korea, Malaysia, Taiwan, and Thailand. Many of these new democracies have innovated brilliantly, such as Germany’s entrusting to independent investigative commissions the question of whether there are grounds to prosecute, as opposed to what has become the mockery of the U.S. grand jury system.

  The end of the Cold War was the greatest, most bloodless strategic victory in the history of the nation-state, as the Soviet Union imploded, China became a capitalist though authoritarian state, and international communism collapsed, without a shot being fired between the great protagonists.

  Unfortunately, as that has happened, the United States ceased to attract huge numbers of very talented and motivated people fleeing oppression, as fewer people in fewer countries are being oppressed, and the choice of destinations for those who are has become so much larger. And the United States’s own institutions have largely calcified. Now at least twenty countries have a superior education system to the U.S., at least twenty a superior health care system, at least twenty a superior justice system.