Allow me a cri d’coeur at this point.

DC Appeals throws out Doe’s Alien Tort Claims and Torture Victim Protection Act claims against Exxon Mobil for specious reasons.

The Supreme Court refuses to grant cert on California’s suit against Enron (we KNEW Stoneridge was the death knell for that case)

Pre-emption is now the darling so long as it is from Bush era regulatory preambles.

Substantive due process is now the darling so long as it favors corporations

Immunity is steadily extended by the courts to shield Executive criminality.

Lawyers come up with arid theories justifying barbarities and government officials act on them.

Courts order in vain, Congress subpoenas in vain. Evidence is destroyed or brazenly withheld. Witnesses gagged. Privilege invoked. Statutes ignored, treaties ignored. The concepts of ubi jus, ibi remedium and tort seem moribund.

The Constitution itself forbids torture, and yet it is ordered. The law forbids warrantless wiretapping, yet it too is ordered.

What is happening to American Law?

Here in my quiet study, the walls are lined with bookcases filled to capacity with books. Most about law and the workings of law in society. It all reflects my youthful idealism that was grown in the Warren Court era, that law could be made to better the lot of the people and that the law was binding on all actors in the national drama.

Now I see such a shambles of our process, that it makes me dispair. Law was never meant to be subordinated to the partisan process and twisted to partisan aims, nor was it meant to oppress the poor and favor the wealthy.

George Mason, ever astute, warned back in 1788:

“The Judiciary of the United States is so constructed & extended, as to absorb and destroy the Judiciarys of the several States; thereby rendering Law as tedious intricate and expensive, & Justice as unattainable, by a great Part of the Community, as in England, and enabling the Rich to oppress & ruin the Poor.”

And that is exactly what has happened: look at the preemption of the state courts in tort law and the steadily shrinking standing of the “commons”

He also warned:

“This Government will set out a moderate Aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a Monarchy, or a corrupt tyrannical Aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”

He was wrong here, we got both; we have in effect a President who stands for and is the mouthpiece of an aristocracy of power, but who increasingly claims monarchical powers to use on their behalf.

This mess is not what the Framers intended; we have gone seriously astray.

However, if our objective is actually and dramatically re-joining the civilized world and re-engaging our international neighbors with a sense of humility, in our life-times – immunity is going to be granted globally. This will be a hard pill to swallow, because many of us, in our worst moments, would prefer many heads on many sticks. It doesn’t seem though, that accountability after-the-fact carries the same urgency as recreating a cohesive international community. Restoration of our freedom and returning to a representative democracy seems to be a much more burning issue. There will be and abundance of investigative journalists more effectively excoriating the offenders outside the legal system – however, not until restrictions of our freedoms are disemboweled and investigative journalism is not punishable by State kidnapping and torture.

At some point, somebody has to say “OK, we should probably stop digging now”.

Bush et al want(s) all of the power and privilege but doesn’t want to take responsibility when it all goes wrong – ONLY if it all goes right.

It’s childish, in my view.

JT is not alone in his cynicism.

I’m sure impeachment does not quite cover it, for me, but I do want something for the history books – before the next term.

What I think is behind the collective reluctance on the Hill to pursue torture investigations vigorously is this:

The rendition/torture network is not new. It dates back to before Bush. It is possible that many Democrats in positions of power at one time or another figuratively “signed off” or at least acquiesced by silence in what became a hoary tradition.

There was/is most likely a tacit approval of this practice; a “necessary evil” to be reluctantly approved and thereafter remembered as little as possible. The public indignation our representatives display currently is very likely (with a few notable exceptions) for the benefit of the voters. Professor Turley’s cynicism is probably justified.

Reyes is a good man, but he is caught in the flypaper here like all of us. As Ridge said, we lost a tremendous amount of “soft power” when we as a nation collectively signed off on this barbarity.

In some ways, impeachment with torture as the high crime, may be the only way this country can restore a little of its former reputation abroad.

And regain the soul we sold here.

He is a ‘coward’ in that he has demonstrated his ultimate
unwillingness to stand on his own – by and for that which he pledged
- on two levels.

What was he fighting for, then, in the Army?

What is he working for, now, in Congress?

I’m asking…

I was only speaking metaphorically…as you know I can’t write my way out of a paper sack… My public speaking skills are also at a similar low level!

I honestly regret attributing “cowardice” to Rep. Sylvestre Reyes’. He is a braver, more courageous individual than I, and has served the country in situations of physical risk. I can’t gainsay his oft-proven valor.

But even a person of proven physical and moral courage can act from political calculation and that is what must behind his baffling silence on the issue of torture.

There are editors, too.

Perhaps you would consider doing a Series instead, and go on the interview/lecture circuit. No lack of material, that’s for sure.

I don’t know if you caught Sylvestre Reyes this morning on CSPAN. When asked point-blank if waterboarding/torture was illegal, he equivocated and said that now it has been forbidden but at the time of the tapes he did not know.

Such astounding cowardice! Maybe I will summon up my waning powers and write a book entitled “Profiles in Modern American Political Cowardice”. Only problem is that nobody will publish a 2,000 page book anymore……..

Exactly. They made it up.

Nothing to add except that the real rogues are our government-all three branches.

If there is ever to be remedies and justice done, it will have to be in some off-shore venue, I’m afraid. “Service-Protection” Act indeed! More accurate would be “Executive Branch Protection Act.”

What is most galling, outrageous to the conscience even, is that glaring absence in the ongoing discussions of the word “torture”.

Waterboarding is torture. Waterboarding is putting a person coercively in fear of his life with the goal of extracting information.

That is plainly illegal. Already illegal under statute and treaty, and were illegal at the time done. End of story.

The legal theories adduced in the 2002 advisory opinion from the Pentagon study group were simply wrong. The Executive in his role of Commander-in-Chief in wartime does not have unlimited plenary powers to do anything he pleases. Torture could not be legally ordered.

If there ever could be a “high crime and misdemeanor” worthy of impeachment it would be a President or Vice President of the United States ordering or authorizing the torture of anyone, US Citizen, alien, enemy combatant, or whatever.