CT Blue

My first thought upon hearing about the warrant for the arrest (followed hard upon by the dropping of the charges) of Wikileaks founder Julian Assange was “CIA”. It took me a long time to come to this sort of reflexive thinking. I remember back in the dim and distant past, the halcyon days of the sixties, thinking that all those people blaming the CIA for all kinds of things were merely indulging in paranoid conspiracy theories. Turned out that they were right on almost all counts, so I have slowly come around to their point of view, at least to the extent that I think of the CIA when something that doesn’t sound quite right pops up in the “national security” field.

Assange is a Swedish citizen, and assuming he stays in Sweden, probably beyond the jurisdiction of American criminal law, despite our recent propensity to extend jurisdiction to everyone, anywhere in the world. (Empires do that sort of thing) The Swedes were unlikely to indict him for the leaks, since he wasn’t breaking any Swedish laws, and everyone knows that the leaks caused no harm, other than exposing what everyone already knew: we are losing in Afghanistan, as we were always fated to do. If they wanted to teach Assange a lesson, they needed to get him for something the Swedes would actually prosecute.

I’m not saying I’m right about CIA involvement, but, as Alice said, the whole thing gets “curiouser and curiouser” the more it plays out.

UPDATE: I erred in saying Assange is a Swedish citizen, though he is currently residing in Sweden. He is Australian.

There are many who are criticizing Arizona’s new immigration law, but I am certainly not among them. As the New York Times describes it, it seems entirely reasonable to me:

It requires police officers, “when practicable,” to detain people they reasonably suspect are in the country without authorization and to verify their status with federal officials, unless doing so would hinder an investigation or emergency medical treatment.

It also makes it a state crime — a misdemeanor — to not carry immigration papers. In addition, it allows people to sue local government or agencies if they believe federal or state immigration law is not being enforced.

Some detractors have whined that the term “reasonable suspicion” in this context is impossible to define and is an open invitation to “racial profiling” but I positively reject that charge.

It seems to me that there is an easy way to determine whether someone can be reasonably suspected of being illegal: skin color, which in this case has absolutely nothing to do with race, seeing as how these folks are technically members of the same race as the people who passed the law-you know-us (except blacks, of course).

I propose that the police simply carry paint swatches with them. Hear me out.

We all agree that blacks cannot reasonably be suspected of being illegal immigrants, seeing as how we dragged them over here legally in the first place, although they can (on account of their being black) be reasonably suspected of being guilty of all kinds of other crimes, and of course we all agree that people of a whiter shade of pale are pretty much above suspicion. It stands to reason therefore that it’s the folks in the middle, I suggest those between Carribean Coral and Sturdy Brown, that we can reasonably suspect of being illegal. All a cop has to do therefore, is compare and detain. I think this is eminently more reasonable than relying on shoe style, which in my opinion would yield a lot more false positives.

Now I admit it is inconvenient that lots of our citizens are unlucky enough to have skin color that comes within the suspect continuum. Inconvenient to them, of course, but not at all inconvenient to me or to eight of the Supreme Court justices (sorry Sonya, can we see your papers?) and it only takes five to give the okay to this reasonable piece of legislation.

So, rather than condemn this law, I suggest we adapt it for use elsewhere. I suggest that New York State pass a law requiring police to detain anyone they reasonably suspect of committing corporate fraud. Now here, shoe style might actually be of some assistance. But I would suggest an easier criteria would be income size. We should detain anyone with an income of more than-let’s say, to be generous, ten million a year or more, excluding athletes and movie stars. I’m willing to bet we’d get fewer false positives than the police in Arizona, and we’d do the country a whole lot more good.

Seldom are the victims (if only the secondary victims) of a conspiracy privileged to watch that conspiracy play out before there very eyes. The entire American people have now been so privileged, as we see the Bush torture conspiracy come to a successful end. It can truly be said that at no time has the conspiracy been truly secret. When now publicly acknowledged, its broad outlines have been known.

In today’s Times we get the word that a Justice Department investigation has concluded that while mistakes were clearly made, none of the lawyers who wrote those infamous memos should be prosecuted. The conspiracy is now complete.

Let’s review the definition of conspiracy. A conspiracy involves an agreement between or among individuals to achieve an illegal end by legal means, a legal end by illegal means, or an illegal end by illegal means.

Here, the illegal end is clear. The object of the conspiracy was to violate national and international laws against torture, and to get away with it if caught.

The means: Insulate the torturers by producing bogus legal opinions that gave them legal cover. You can do that because the opinions of the Office of Legal Counsel give government employees legal cover until a court finds them invalid. This leaves the lawyers themselves vulnerable, unless you determine that they were not criminal, merely incompetent. This requires that you ignore the inconvenient fact that the overarching conspiracy is patently obvious. Each participant knew, or should have known the obvious truth that no one in this entire conspiracy was acting in good faith. The legal principle that gives government employees cover if acting pursuant to an opinion from the Office of Legal Counsel presupposes that the opinion was given in good faith-that it is an honest attempt to discern the true state of the law, not a made to order brief designed from the start to reach a specific conclusion. The lawyers knew what they were doing. The torturers themselves could not have believed that they were not torturing, or is this a case in which they merely asked: “Who should I believe, John Yoo, or my lying eyes?”.

Now the Obama administration takes the last step in the conspiracy by sealing the deal, performing in precisely the manner that the Bushies expected should the torture come to light. There’s nothing to see here, and although some of these miscreants might have to lose their law licenses, there’s no need to get the torturers, or the people who were pulling those lawyer’s strings.

By the way, don’t try this at home. For the rest of us, claiming that we were following legal advice gets us precisely nowhere, if by following that advice we expose ourselves to criminal or civil liability. Nor does a good faith defense do a lawyer much good if they have exposed themselves or their client by giving bad advice. I’m aware of one exception. If a person is sued for malicious prosecution (suing someone without good cause) he or she can defend by saying they were relying on the advice of counsel. But that defense only goes so far. It gets the client off the hook, but not the lawyer, who remains liable.

It now remains to be seen whether Congress will do something about this national disgrace. I will risk a prediction that has little chance of being wrong: we will hear a bit of sound and fury, but in the end it will signify nothing.

The Cheney “defense” to torture is that committing that crime enabled his henchmen to obtain information that “saved lives”. That may be, but probably is not, true. Of course, if we’re going to tote up lives saved, we also have to tote up lives lost to the terrorists our torture tactics created.

But today we find that in fact, Cheney wasn’t looking for facts, he was looking for cover. He ordered prisoners tortured to get evidence for something the CIA told him was not true: that there was a link between Al Qaeda and Saddam Hussein. There was no such link, but Cheney ordered more and more torture in order to get “evidence” for what he wanted to hear. We should also note in passing that we are not talking the “ticking time bomb” scenario here. The standard Cheney justification for torture-necessary in order to get information about an imminent attack-doesn’t apply.

The torture techniques employed were perfectly suited to get the evidence Cheney was seeking, since many of them were developed by the Communists to wring false confessions out of their prisoners. For my own part I’ve always believed that all forms of torture are designed to get false confessions, since generally speaking the torture only stops when the torturer hears what he wants to hear.

If true, and we all know in our hearts that this all these charges are true (and to prove it I suggest we waterboard Cheney and ask him) this is further proof that Cheney has committed war crimes of the highest order: he ordered people tortured in order to get them to lie. It is self evident that such lies will save no lives, though they may cost many lives, as they surely did. Even Cheney’s inadmissible defense is inapplicable to the case.

Let us hope that the organ that passes for Cheney’s heart keeps beating at least until the jury comes in with the guilty verdict and the prison door slams behind him.

UPDATE: I must respond to one of my right wing commenters, who claims that torturing helped foil a plot to bomb the Library Tower in Los Angeles. In order to accept that, one must accept the proposition that time goes backwards:

Some in the media have interpreted the memo’s statement that the use of harsh interrogation techniques on Mohammed “led to the discovery” of the Library Tower plot as evidence that the use of these tactics was necessary for intelligence officials to thwart the plot. But as Slate.com’s Timothy Noah noted on April 21, that claim conflicts with the “chronology” of events put forth on multiple occasions by the Bush administration. For instance, in a February 9, 2006, White House press briefing that Noah cited, Bush homeland security adviser Frances Fragos Townsend noted that Mohammed was not captured until more than a year after the individuals planning the Library Tower attacks had concluded that the plot had been “canceled.” Noah also noted that a May 23, 2007, Bush administration fact sheet stated that the administration “broke up” the Library Tower plot “in 2002″ — before Mohammed was captured.

But I’ll say it again, using a timeworn cliche, the end doesn’t justify the means, particularly when one doesn’t know beforehand what end one is likely to reach. We are no more justified in torturing than Osama bin Laden is in killing innocent people in order to bring about his Caliphate. And I would ask my right wing friend, are our enemies allowed to torture our soldiers when they capture them?

I haven’t read all the newly released torture memos. It takes an effort of will to get through them. And I haven’t read the statutory or case law that the authors purport to cite. But I can smell intellectual and lawyerly dishonesty when it gives off this much stench.

The stench is particularly offensive if you happen to be a lawyer, and therefore familiar with the legalistic conventions that are being perverted in these memos. In measured, lawyerly prose, the authors proceed to legalize the patently illegal, and eviscerate the constitution.

It’s not hard to arrive at a predetermined conclusion if you get to define both the facts and the law. From the definition of “high value detainee” to the CIA assurances that each proposed technique will be applied just short of torture, it is pure fiction, but fiction in the service of a lower cause. If we accept certain factual premises we can abolish any possibility that any given action is torture. If, for instance, we presume that a psychologist will, or can, ascertain just how much abuse a person can take without sustaining the degree of harm necessary to qualify the act as torture, then we can safely conclude that we are not engaging in torture, so long as we all promise to adhere to the psychologist’s decrees. We know, of course, that any psychologist, or any human being, who would participate in such an exercise is by definition a sadist, but let that go. Nor does it matter that the scientific evidence or legal basis upon which the conclusions rest is a deliberate distortion of that science or law. So long as we can all pretend we are acting in good faith we are home safe. And indeed, it’s turned out that way. These memos were kept secret not because their release would endanger national security, but because their reasoning cannot withstand the light of day, something both their authors and recipients knew all along.

Real legal memos are written by an interested party trying to convince a disinterested party. That’s why they can’t stray too far from the facts, or go too far in distorting the law. If one departs too much from reality one loses the case.

These people were judges in their own cause, so they had only to convince themselves, or pretend to be convinced. And if, as has happened, the memos became public, the recipients could always earnestly insist that they acted in good faith reliance on a legal opinion they in fact knew was a fraud, and the authors could piously insist that they honestly believed that their analysis was correct, and the very top criminals could always get a platform at the Wall Street Journal from which to attack those that revealed their crimes.

So it goes. And we must wonder. Which of the folks who engaged in this conspiracy will be the Dick Cheney or Donald Rumsfeld of the next Republican Administration, intent on “restoring” absolute power to the executive, just as Dick and Don did in the Bush Administration? To which Ring of Hell will he (it’s usually a he) drag this country when he gets power commensurate with what they got in the past eight? Wouldn’t our chances of avoiding such an one be enhanced if that person or person served hard time?