A law student is trained to be able to think in a particular way, a legal mode of reasoning.  She approaches a piece of news differently, teasing it open, as it were, to behold the nub.  It’s not an absolute, true nub— nothing spiritual or ultimate— but the core of its legal significance.   Then she can continue on to construct an argument which opposes or bolsters it.  Her advantage is to know exactly what it is she’s dealing with, and not waste energy opposing something else that only seems to be related.

Someone bops you in the back of the head with a peeling spud, and you turn to see three people in a row with spuds in their hands.  It’s just as well to punch out the true culprit, if you can.  Here’s Larry Wilkerson, duly appointed by the Attorney General.  People seem to know there’s a problem, but they swing at it blindly.  

Now, it seems to me that the center-left is deeply offended to see Dick Cheney happy and free, or Ashcroft— any of the torture men.  They know Holder’s limits, set on Wilkerson’s scope, tend to insulate those low, torturing scum, and it ticks them off.  But their arguments punch out the wrong spud-wielder.

The complaints seem to center around the idea that low-ranking scum might be singled out, but high-ranking scum won’t be, and I believe that to have actually been Holder’s instructions from the boss.  It’s a political consideration, and Holder’s boss has good antennae for political considerations.  The criterion Holder devised will surely do that task.  

When the leftish complaints about scapegoating surfaced, as they did, it only signified that someone had noticed what the criterion was intended to do in the first place.  “So, Wilkerson can’t target high ranking members of the Bush administration?  No shit, Sherlock,” the Obama people can say, “what gave you the clue?”

But the legal nub is different.

A rank heap of specious legal memos and guidelines were manufactured within the Bush Justice Department, as we now know because of a very expensive and dogged effort by the ACLU.  In the meantime, more publicly, the people they proposed to torment were set outside of any law or treaty.  They were not criminally charged, they were ruled to lie outside the scope of the Geneva Convention.  They weren’t POWs, they weren’t criminal suspects, and so on.

The top-ranking torturers wanted something to stand on so they wouldn’t face prosecution, of course.  Impunity is necessary for torture to be done.  Nothing could possibly make it right, but there was an urgent need to keep everyone who set up the policies clear of legal trouble.  

Hence John Yoo and the special status they called enemy combatants.  If the victims are in some limbo, there’s no place to start making arguments about what treatment is inappropriate.  Even habeas corpus was deemed not to apply to enemy combatants, at first.  In the meantime, legal jiggery-pokery was concocted to make it sound as though the torture plans were totally legal, anyway, even though “real” torture remained a crime.

Legally, no one has cut away enough of those bad branches, whose flower was extrajudicial torture and death.  Whether or not Cheney or Ashcroft or Rumsfeld ever stands in the dock, those branches have to be pruned.  Here’s where the nub is, and Eric Holder has strengthened those bad branches.  He uses the Yoo memos as the very basis by which Wilkerson is supposed to decide when someone can be prosecuted or not.  

That gives them a lot of cred they never deserved, and makes it easy for the next set of lowlife torturing pricks to shelter under them.  Holder is trading away our liberties, our freedom from unjust torture by our government, not even with the bad excuse of security but merely to avoid a political inconvenience!

The nub isn’t the political one— who is now in jeopardy— but the legal one.  Not who gets the shaft so much as whether or not this sort of torture remains a crime here.  If we keep the impunity none are safe from torture.