Annals of Fair Use ~ Cariou v. Prince

A couple of years ago I posted here on the copyright infringement case that French photographer Patrick Cariou filed against Ricard Prince, his publisher, and gallery representative. At the time I thought the case was a loser for Cariou. He managed to prove real professional and financial damagess, though and it turns out that a Federal Judge has ruled in his favor. As The Guardian reports (and The New York Times here too) the judge has ordered Prince to destroy works with a substantial market value. And the Gallery has to tell those poor folks who bought some of the works that it is copyright infringement to display them! Think what you will of Prince (Me? Answer: not much) this seems like a stupid outcome all around.

In my initial post I suggested a remedy for stupidity - aiming it, mistakenly as things turn our, solely at Cariou. I reiterate my suggestion here and suggest that the judge the plaintiff and defendenet and everyone else do some chillin'.

Not That This Should Need to Be Said But: ‘See, Officer, I Can Too Take That Picture’

You won't be able to read this version of this internal memo from the U.S. Department of Homeland Security. But what it basically says is that law enforcement officers should stop harassing photographers who are making pictures of putatively "sensitive" Federal sites. It explicitly instructs officers to not seize equipment or otherwise interfere with photographers as they go about their business. You can find links to a life size (legible and printable) version of the document here at The New York Times.

New Label ~ child porn?

Girl and Cat (1937) ~ Balthasar Klossowski de Rola.

I have posted numerous times here about the travails artists and photographers who have encountered censorship, formal and informal, justified by the fear of "child pornography." At Salon.com you can find this interesting slide show of works (some of which, I've noted in my posts) that have generated "controversy" along this dimension. Most of the images (including the one I've lifted here) are readily available on line. There is no doubt that that makes them available to perverts. But there is no doubt too that museums and media outlets and politicians are way too concerned about the sensitivities of everyday people. There are issues to be discussed and argued over in all this. But blanket censorship seems to me a poor substitute for such interactions.

Binayak Sen

Binayak Sen is an Indian physician and human rights activist. After prolonged incarceration and legal proceedings, an Indian court has sentenced Sen to life imprisonment for sedition. The court made its decision under special security laws. Sen's lawyers plan to appeal the decision. You can read a brief report here in The New York Times; there is an older interview with Sen from Democracy Now! here. We rightly hear lots of outrage when this or that authoritarian regime seeks to silence dissent. It will be interesting to gauge the response to this decision in 'the world's largest democracy.'

The First Ammendment

There is a report here in The New York Times about a federal court decision regarding the public's right not to be grossed out.

Lessons of Wikileaks

A system of free expression and other political rights is a pubic good. That means that for most participants in that system - say, corporations - there always is a powerful incentive not to pay the costs required to sustain that good. So when, as Paypal reportedly has admitted and other companies predictably soon also will*, the U.S. Government pressures them to toss commitment to free expression overboard, they will do so with alacrity. Principle goes by the board quickly when profits or legal exposure seem threatened.

The problem is that as Paypal, Mastercard, Visa, Amazon, Everydns.net and PostFinance (the Swiss bank handling funds for Julian Assange's legal defense fund) cut services to Wikileaks, they are acting on the government's allegation that Assange and/or Wikileaks may have committed a crime. To date there are no actual legal charges, let alone convictions in the fracas. And while Joe Lieberman is stomping around demanding that we simply dispense with the first amendment altogether it is not at all obvious that Assange and his compatriots have actually broken any law.

I am not big on conspiracy theories. But as the corporate world capitulates to government demands like this, I am tempted to reassess that propensity. And I wonder why it is that the companies are not nearly so interested in falling into line on say, tax compliance or environmental protections or whatever when the government stops by and says 'pretty please.'

It is important to note that not all the companies that the U.S. Government is pressuring in the anti-Wikileaks campaign have capitulated. According to this report The Guardian, the Swiss firm Switch, which now hosts the Wikileaks web site, is resisting the pressure. Just when one starts to think that all corporations are simply craven here comes a surprise.
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Update (later that same day): *I highly recommend this post by Henry Farrell - who, unlike me, actually knows a lot about this general topic of government interference with the Internet - over at Crooked Timber. No need to take my data free speculation for anything more than what it is.

Tell the Bigots it is Time to Get Over It, Don't Coddle Them!

Let's see, Federal Judges, the President, the Secretary of Defense and Chairman of the joint Chiefs, Most Democrats in Congress, roughly two-thirds of the men and women serving in the military, and majorities in the general population too - all support ending discrimination in the basis of sexual orientation in the military. Republicans, of course, stand in the way. And now they will surely demand that we need to accommodate the bigots - those few in the military who oppose serving with gay men and women. We lose military personnel because of the current policy. If we lose some because they simply cannot bear the thought that some of their co-workers might be gay, that is simply too damned bad. Obama ought to be taking the lead on this not sitting back waiting. His present stance is not pragmatism, it is cowardice.

A 9/11 Message ~ I'm a Photographer Not a Terrorist!

"They may seek to strike fear in us; but they are no
match for our resilience. We do not succumb to fear ... "

"We will not sacrifice the liberties we cherish or
hunker down behind walls of suspicion and mistrust ... "
~ Barack Obama, 11 September 2010

*****

Right. So, just what is it that Obama is saying when one of his agencies (the inimitable TSA) is circulating this message - and when they seem totally tone deaf when photographers object to it? What part of the message that there is zero connection between photography and terrorism are our officials missing? Apparently, the whole thing. I had hoped that once BushCo left town we might return to something resembling evidence based politics and policy. So much for the hope.

Another Crystal Clear Indication that Obama is (at best) a Right Leaning Centrist

The Obama Administration won a court decision today (hopefully not a final one, but given the reactionary make-up of SCOTUS, there is at best a fleeting hope that this decision will be reversed) by invoking "state secrets" as a defense against detainees who have been tortured by the CIA in black sites around the world. You can read the report in The New York Times here. The delicious part appears in these paragraphs:

“The administration’s aggressive national security policies have in some ways departed from the expectations of change fostered by President Obama’s campaign rhetoric, which was often sharply critical of former President George W. Bush’s approach.

Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers — though the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.”

The understatement is obvious. For those who are 'disappointed' that the putatively progressive Obama is constrained somehow from putting his true political aspirations into effect this case should be a clanging whack upside the head. If Obama were a progressive this case would not exist. His administration is resisting the efforts of individuals seeking justice and he cannot blame this on the Republicans. His administration is saying 'you don't even get your day in court ... we want the torturers to be immune from any recourse ...'. This is shameful.
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P.S.: (Added early the next day) ~ As I re-read this this morning there is something else. Does it need saying that the appeals court panel (11 judges!) in San Francisco who made this decision on a 6-5 vote are shameful as well. They sold the constitution down the river.

P.S. 2: Even The New York Times sees this more clearly than our political leaders ~ "Torture is a Crime, Not a Secret." Just So.

The Right to Take Pictures (5)

Photo © Jonathan Warren

"The right to take photographs in the United States is being challenged more than ever. People are being stopped, harassed, and even intimidated into handing over their personal property simply because they were taking photographs of subjects that made other people uncomfortable. Recent examples have included photographing industrial plants, bridges, buildings, trains, and bus stations. For the most part, attempts to restrict photography are based on misguided fears about the supposed dangers that unrestricted photography presents to society.

Ironically, unrestricted photography by private citizens has played an integral role in protecting the freedom, security, and well-being of all Americans. Photography in the United States has an established history of contributing to improvements in civil rights, curbing abusive child labor practices, and providing important information to crime investigators. Photography has not contributed to a decline in public safety or economic vitality in the United States. When people think back on the acts of domestic terrorism that have occurred over the last twenty years, none have depended on or even involved photography. Restrictions on photography would not have prevented any of these acts. Furthermore, the increase in people carrying small digital and cell phone cameras has resulted in the prevention of crimes and the apprehension of criminals.

As the flyer states, there are not very many legal restrictions on what can be photographed when in public view. Most attempts at restricting photography are done by lower-level security and law enforcement officials acting way beyond their authority. Note that neither the Patriot Act nor the Homeland Security Act have any provisions that restrict photography. Similarly, some businesses have a history of abusing the rights of photographers under the guise of protecting their trade secrets. These claims are almost always meritless because entities are required to keep trade secrets from public view if they want to protect them."

I lifted these paragraphs from this web page maintained by attorney Bert Krages. I have linked to his valuable page a number of times. In light of my last post, it seemed appropriate to do so yet again. Krages has a one page pdf detailing your rights when confronted by law enforcement and/or security personnel. He also has written a book entitled Legal Handbook for Photographers that covers a broader range of topics (e.g., intellectual property issues).

BP, the Oil Gusher, and the Constitution

This morning npr ran this story about the harassment of journalists and photojournalists seeking to investigate the oil disaster in the Gulf of Mexico by law enforcement officials - local, state, and federal - often working in coordination with the U.S. Coast Guard and members of BP's security squad. The hook for the npr story is the encounter between ProPublica photographer Lance Rosenfield with a phalanx of law enforcement and BP security in Texas City, Texas. You can read his own report here. His experience is not unique - see this report and this one too. In each instance the officials - law enforcement or military - claim that they are acting at the behest of the corporation. Apparently the emergency means the Constitution has been suspended.

Section 44 Tossed

Extremely good news on the civil liberties front in the UK following a decision from the European Court of Human Rights. The much and rightly maligned Section 44 of the Terrorism Act of 2000 has been nullified. Every once in a while common sense prevails.

The Supreme Court, Right Wing Politics, and What Your Grandmother Knows

"The American people expect a justice who will impartially apply the law, not one who will be a rubberstamp for the Obama administration or any other administration ... " ~ Mitch McConnell (R Kentucky)

"Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law. . . . Over nearly 25 years, General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. " ~ Orin Hatch (R Utah)

"The worst kind of thing you can say of a judge is he or she is results-oriented. It suggests that a judge is kind of picking sides irrespective of what the law requires." ~ Elena Kagan

I am not a fan of Elena Kagan. More precisely, I am not a fan of her nomination to the Supreme Court. I think that Obama ought to have nominated someone who might offset the ridiculously partisan gang of five right-wing justices who already sit on the court, someone who would not just vote against them, but call them out when that needs to be done (with, of course, all of the professional niceties that judicial discourse imposes). Obama would never do that. He nominated Kagan, to solidify the resolutely centrist coalition of justices who pass for "liberals" on the current court.

The problem is that no one involved in the current nomination proceedings seems able to grasp what your grandmother knows without too much thought: Kagan resembles a "progressive" only in the context of right wing judicial politics. You can find yet another example of the consistent right wing "activism" of the current court majority (for earlier ones see [1] [2]) in a recent report from the Constitutional Accountability Center. It documents the remarkable coincidence that the right wing of the court - Alito, Roberts, Scalia, Thomas and Kennedy - vote to support corporate interests in an overwhelming majority of relevant cases. (Alito virtually never votes in any other way!) Here is a summary of the results:

"To test empirically the idea that the five conservatives on the Roberts Court tend to side with corporate interests, at least more than their colleagues do, we have examined, for those cases in which the United States Chamber of Commerce participated as a party or as an amicus curiae, every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions in early 2006 through May 2010 ‐‐ a universe of 53 cases ‐‐ and we tracked the votes of each Justice in each of the cases. Over that period, a cohesive five‐Justice majority on the Court has produced victories for the Chamber’s side in 64% of cases overall, and 71% of closely divided cases.

Results

The data support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives tilting more decisively toward the Chamber’s position than the Court’s remaining justices tilt in the other direction. The members of the Court’s conservative majority (Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas) were very close together in their overall support for the Chamber’s position. Justice Kennedy does not “swing” much in business cases: he supported the Chamber 67% of the time, close to the voting pattern of Justice Alito, who had the highest percentage support for the Chamber ‐‐ voting for the Chamber’s position in 75% of the cases. This cohesion has produced an overall success rate for the Chamber of 64% (34 victories in 53 cases). The Court’s moderate/liberal “bloc” (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist: collectively, the Court’s conservative “bloc” (Roberts, Scalia, Alito, Thomas, and Kennedy) cast only 29% of their votes against the Chamber, while the moderate/liberal bloc cast 41% of its votes in favor of the Chamber.

Cases Decided by a Narrow Majority

Obviously, not all business cases are the same. Some of these cases apparently were not difficult for the Court to decide, at least in terms of the ability of the Justices to reach consensus. Indeed, more than one‐third of the business decisions we examined were decided by a unanimous Court; the Chamber won 11 of those 19 cases (58%). At the other end of the spectrum, about one‐third of the cases in our survey sharply divided the Court, and it is in this subset that ideological voting is most pronounced. These cases include all of the blockbuster rulings decided during the period of this study, including Citizens United v. FEC (2010), Ledbetter v. Goodyear (2007) and Massachusetts v. EPA (2007). Of the 17 cases decided by a five‐Justice majority, 12 (71%) resulted in victories for the Chamber. In these cases, the conservative bloc voted for the Chamber 84% of the time, compared to only 15% for the moderate/liberal bloc. Strikingly, in these close cases, Justice Alito never cast a vote against the Chamber of Commerce’s position."

No doubt our Republican Senators will decry the "rubberstamp" quality of that voting record! And soon-to-be-Justice Kagan will simply sit on her hands while her colleagues continue "picking sides" more or less solely in keeping with their conservative ideology.

This pattern of voting will surprise no one. Not grandma, anyhow. The study documents the pro-business voting pattern of the right leaning justices and it suggests that while their voting is extreme and partisan, the "liberals" tend to be centrist. Once again we can finger the Republicans as the source of political extremism. My point is not to suggest that we should expect the right-wingers to vote any other way. What we should expect is for a putatively "progressive" president to appoint a progressive justice. Everyone else is playing politics; why can't Obama advance a progressive agenda? Hint: Because he is not a progressive.

Self-Censorship and the Uses of Discomfort

From: Immediate Family. Photograph © Sally Mann.

In The Guardian today this a review by Sean O'Hagan of a newly opened retrospective of work by Sally Mann. (You can find an earlier notice here.) Here are two interesting passages. The first addresses an early series of images Mann calls Immediate Family.

"It featured black and white images of her three children, often naked or partially naked, as they played and posed in the woods, lakes and rivers around her home in rural Virginia.

The images, some of which are on show here in the 59-year-old American's first British retrospective, are by turns beautiful, disturbing and unashamedly sensual. Perhaps more problematically, all of them are, to one degree or another, staged. [. . .]

"Many of these pictures are intimate, some fictions and some fantastic," Mann said of the series, "but most are ordinary things that every mother has seen." Well, maybe, but not every mother has restaged and then rendered them in such a darkly beautiful and ambiguous ways. Intriguingly, none of the more outrightly provocative photographs have found their way into this show, which is an edited version of a bigger retrospective exhibition that has already toured Europe. Whether this is down to lack of space or fear of public – or tabloid – outcry is anyone's guess, but one could argue that something has been lost in this excised version of the series: the sense that Mann is walking a tightrope between reflecting childhood sexuality in all its lack of self-consciousness and staging it in often dramatic reconstructions. This, in effect, is where the true power of her art lies.

I will give O'Hagan the benefit of the doubt here and assume he is simply being ironic. Of course the reason the "more provocative" images in the series are not being displayed is that the gallery and/or photographer anticipated public complaints. So, instead of censorship we get anticipatory reaction. If I don't show you the provocative images I won't have to worry about being forced to remove them from the show. In other words, the censors have done their work effectively before the exhibition is even mounted.

Here is the second passage, this one a typically hand-wringing worry about what we have a "right" to show or to see.

The other, even more disturbing series on show here is entitled What Remains (2000–04), which approaches death and dying head on. Mann gained access to the University of Tennessee Forensic Anthropology Centre, a place that would not seem out of place in one of Chuck Palahniuk's darkly humorous short stories. Here, bodies that have been donated to science are left outside in the woods so that the process of organic decomposition can be studied by forensic scientists.

Mann's close-up images of these rotting corpses are not for the faint of heart, but, again, the prints – made by an old-fashioned chemical method called the wet-plate collodion process – have a Victorian feel that is almost painterly. One does, though, feel like a voyeur when looking at images such as this. They raise the ethical question of whether a person's decision to donate their body to science gives scientists the right, at a later date, to grant Mann permission to photograph that – decomposing – body. (And whether the result should then be displayed as art. )

From there O'Hagan quickly turns to the safe subject of photographic technique. Apparently it would be OK for a crime novelist to describe rotting corpses. And it is OK for forensic scientists to study them. And it is OK for us to watch the various CSI programs on television. But Mann's images (stylized as they are) are somehow beyond the pale?

Perhaps, I am wrong, but is O'Hagan here hinting that we ought to self-censor more than we already do? It is difficult to tell since he lauds Mann for her creativity and courage and seems to esteem her work despite "all the uncomfortable issues it raises." Doesn't Mann's work stand as an indictment of censorship and self-censorship? Doesn't it suggest that what we need is to see what photographers show and then engage in critical argument about where the bounds of taste and morality are located? Then photography can contribute in useful ways to self- and social and political exploration and discovery.

Keep the "Change": The Bush/Cheney-Obama Torture Policy

As discussed here and here and here and here and here and here, the Bush/Cheney torture policy is rapidly being embraced by the Obama administration. It is not just that Obama has failed to close Guantanamo, although that is bad enough. He has continued to implement similar policies in Afghanistan. And he has refused, systematically, to fulfill the duties of his office (you know, the bits were he pledged to faithfully execute the laws and uphold the Constitution) by investigating the systematic program put in place by BushCo to engage in and rationalize torture.

Obama Shifts Court to the Right

So, Obama plans to nominate Elana Kagan to replace Justice Stevens on the Supreme Court. Kagan is better than we would have gotten from John McCain; but, then again, Stevens would likely not have retired had McCain been president. But from the allegedly "progressive" Obama, Kagan is a poor choice. While The New York Times uses the words "pragmatist" and "progressive" to describe Kagan, it is not clear what they know that the rest of us don't. She may well be an opportunist; her record, to be polite, is troubling. In particular, she demonstrates no willingness to confront, let alone attempt to rein in, executive power [1] [2].

From my perspective, it is not difficult to see what Obama hopes to gain. The notion that he is courting Republican votes in the Senate by appointing a 'moderate' is a joke. The Republicans are pretty much unwilling to cooperate on any issue. Given their inevitable resistance, so the reasoning goes, he ought to have gone ahead and appointed a progressive or even a real pragmatist. That, of course assumes, he is being strategic here and not simply appointing his ideal candidate. He is doing the latter. This appointment should lay to rest any suspicion (hope?) that Obama is anything other than what he is - a center-right opportunist [3]. Having set the agenda, conservatives should, if not celebrate, at least be smugly satisfied.

Looting, Politics and 'Art'

"Most European museums are, among other things, memorials to the rise of nationalism and imperialism. Every capital must have its own museum of painting, sculpture, etc., devoted in part to exhibiting the greatness of its artistic past, and, in other part, to exhibiting loot gathered by its monarchs in conquest of other nations. . . . They testify to the connection between the modern segregation of art and nationalism and militarism." ~ John Dewey (1934)

In The New York Times today is this story confirming both Dewey's observation and the general failure of art critics to get it. The critic - in this instance Michael Kimmelman - sides with the imperialists in the case of the Elgin marbles, possessed by the British but claimed by the Greeks. In part, he adopts a post-modern view of "culture" as freely circulating and so devoid of any "authentic" locus. But, ultimately, that is simply scaffolding for his claim that the British were able to take the marbles and so should keep them. The Greeks, he thinks are simply playing symbolic politics: "The Greeks argue for proximity, not authenticity. Their case has always been more abstract, not strictly about restoration but about historical reparations, pride and justice. It is more nationalistic and symbolic."

I think that claims of authenticity are moot - not for post-modern reasons, but because there never was any authentic possession to which one or another group might lay claim. In other words it is not that authenticity has been superseded but that it has always been specious, a rationalization for power and deception (including self-deception). Yet there is a good amount of rationalizing self-deception going on in Kimmelman's essay. I leave to one side his presumption that culture generally and art specifically constitute clearly bounded, discrete domains and, therefore, afford a terrain on which disengaged critics can ply their trade. I am more concerned here with the broader political implications of Kimmelman's position. Here is another juicy bit:

"Over the centuries, meanwhile, bits and pieces of the Parthenon have ended up in six different countries, in the way that countless altars and other works of art have been split up and dispersed among private collectors and museums here and there. To the Greeks the Parthenon marbles may be a singular cause, but they’re like plenty of other works that have been broken up and disseminated. The effect of this vandalism on the education and enlightenment of people in all the various places where the dismembered works have landed has been in many ways democratizing.

That’s not an excuse for looting. It’s simply to recognize that art, differently presented, abridged, whatever, can speak in myriad contexts. It’s resilient and spreads knowledge and sympathy across borders. Ripped from its origins, it loses one set of meanings, to gain others.

Laws today fortunately prevent pillaging sites like the Acropolis. But they stop short of demanding that every chopped-up altar by Rubens, Fra Angelico or whomever now be pieced together and returned to the churches and families and institutions for which they were first intended. For better and worse, history moves on"

Here the incoherence of Kimmelman's position is clear. He rightly speaks of the sorts of "vandalism" and "looting" that have been central to colonial enterprises, excusing them even as he protests that he does not. And he celebrates the fact that such actions now are legally proscribed. In the end he adopts a sort of let by-gones be by-gones stance. History after all does move on!

Yet, Kimmelman also hints at a sort of consequentialist approach to the whole matter when he suggests that the display of pillaged art works has been "democratizing" and that it has "spreads knowledge and sympathy across borders." If we want to consider consequences - and I think that is precisely what we ought to consider - then we ought to ask what precisely is the message being sent if the British are allowed to retain the marbles (or if other countries in possession of looted works are allowed to retain them in the face of legitimate claims). The answer, it seems to me, is this: the powerful and the rich can do what they please; the claims of justice are irrelevant or, at best, such claims trade upon the good graces of the rich and powerful. I presume, of course, that it is possible to sort out how to do justice in various cases and that it is possible to differentiate legitimate claims from those that are not. Those are difficult matters. But the underlying claim remains sound - we should look at consequences and when we do we should look at how the consequences impact common understandings of justice. The latter surely do not sanction simply allowing the rich and powerful to get way with whatever they have managed to get way with thus far.

Annals of Fair Use: “Shame on Al Gore” and Shame on the State of Texas

Cameron Todd Willingham, 1994.
From Texas Death Row © Ken Light.

Regular readers will know that I have pretty expansive understanding of "fair use" when it comes to photographs. I acknowledge that many cases are quite complicated. Some, however, are not. And when Al Gore and his company not only used this image by Ken Light without permission, but then appealed a small claims court ruling in Light's favor, they were well out of line. Arguably, the judge that found for Gore on appeal is totally wrong. You can find a story on the case here in The New York Times.

Even more importantly (Light would surely agree) is this story from The New Yorker, the source from which Al and company lifted Light's picture of Willingham; it argues that Willingham, who was executed in 2004 very likely was innocent of the crimes he was accused of committing.

Photography Not Terrorism: Thank the Lord for Libertarians

The NY Civil Liberties Union is pressing a legal challenge to U.S. Government regulations that led to the arrest of photographer Antonio Musumeci outside Daniel Patrick Moynihan Federal Courthouse in Manhattan. You can find reports here and here. You can find street level images of the Courthouse and its surroundings by simply using Google maps; this is a point I've made here before. Musumeci is a libertarian (as is the fellow he was photographing on the day they were arrested) accounting, no doubt, for his willingness to seek legal redress.

Their Criminals, and Ours

"China has no 'dissidents' . . . There is only the difference
between criminals and those who are not criminals."
~ Ma Zhaoxu, Spokesman Chinese foreign Ministry

This is a remark, reported here at The Guardian, by a Chinese government official commenting on the imprisonment of Liu Xiaobo. It might seem comical to hear regime mouthpieces, with a straight face, parsing words in hopes of rationalizing their oppressive actions. But, as I have noted here repeatedly, it makes a difference. It makes a difference to individuals like Liu Xiaobo. It has consequences for the debasement of language and thereby of politics. And it does not, of course, happen only in those despicable far away authoritarian places like China. After all, just this week David Margolis, an official at the U.S. Justice Department, engaged in the very same practice. He announced that when John Yoo and Jay Bybee flouted - systematically and knowingly - domestic and international law in their quest to rationalize the torture of people being held in U.S. custody under suspicion of partaking in terrorist activity they simply exercised 'poor judgment' instead of professional misconduct. The distinction Margolis draws basically is between being morally obtuse and being legally culpable. The news reports are here and here. We don't have war criminals in the United States, we just have eager, if slightly flawed, public servants operating under circumstances of extreme stress.*

Just to be clear about the political consequences of all this - Margolis not only lets the Bush minions off the hook here, he gives cover to the 'let's ignore the past and hope for the future' strategy that Obama is pursuing on this matter. And, not to be overlooked, he allows countries like China to continue thumbing their noses at sanctimonious rhetoric from Americans.
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* But of course, as subsequent news reports make clear, we have dramatically incomplete record for making that assessment because large numbers of official emails to and from Mr. Yoo during the relevant time period mysteriously are missing and unrecoverable.

P.S.: And if you want to see that this language game is being played not just in the halls of justice but in the mainstream media, see this post and this follow-up by Glen Greenwald at Salon.com . . . We don't have Terrorists in the U.S., we just have deranged 'tax protesters.' (Meaning, presumably, that we cannot torture the latter if they are captured?) Just ask the folks at Newsweek. Pretty remarkable!