So, it's come to this. John Yoo, one of the guys behind the Patriot act, and now teaching law at Berkeley, had some remarkable things to say in a recent interview:

As Yoo saw it, Congress doesn't have the power to "tie the President's hands in regard to torture as an interrogation technique." He continued, "It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture."

This may be old news, to folks who have been paying attention -- from memos that have emerged from Dubya's White House which make the same claim in more obscure language. But it's a bit of a change from the old American notion of "a government of laws, not of men", in which officials swear oaths of loyalty to the Constitution, and pointedly not to the President.

And in fact, if you google that phrase right now, you'll find quite a few denunciations of Dubya's crew for failing to respect that principle -- and attacks on the principle itself from, among others, an advocate for Christian theocracy in the U.S. and a racist fanatic.

Well, you can guess how they criticize the principle. But what about John Yoo, professor of law at Berkeley?

"Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?", he said. "What were pirates? They weren't fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for trial, or imprisonment. If you were an illegal combatant, you didn't deserve the protection of the laws of war."

Slave traders did get the protection of the laws in pre-Civil War America. Even in states where slavery was illegal, via the Fugitive Slave Act. And even in colonial days, pirates were given formal trials in maritime courts. The attempts of George III to replace those courts with, in effect, military tribunals are among the grievances listed in the Declaration of Independence. As is his practice of "transporting us beyond the seas to be tried for pretended offences".

Which brings me to the source of the quotes -- an article by Jane Mayer in this week's New Yorker, which begins with the case of Maher Arar -- detained in an American airport and sent to Syria to be tortured. It ends with the case of Hadj Boudella -- quite literally kidnapped out of the Balkans and sent to Guantanamo, where he is likely being tortured and may never emerge. Both men are being presumed guilty of terrorism based on the thinnest wisps of a possible association. Neither got the ghost of due process. This is what America has become. "24" isn't dark fantasy; it's a secret police procedural.

(Don't expect American soil to be free of these practices; Arar was Shanghaied from New York. Nor American citizenship -- this is what the Jose Padilla case is about).

But respectable legal scholars like Yoo -- never mind the quality of their arguments -- are permitted to say things like this and stay respectable. So long as he's a lawyer making the best case he can for his client -- in this case Dubya, who wishes to be allowed to torture on a whim -- constructing the best argument he can is what lawyers are supposed to do. (And can anyone doubt that he'd put forward better arguments than that if he possibly could?)

These, at any rate, seem to be the standards of our legal system, at least to one guy looking in from the outside. But I can't help feeling there's something fundamentally rotten about a legal system in which a practicing attorney feels comfortable saying of an ongoing case, in a perfectly matter-of-fact way, that

U.S. lawyers know that what judges do is to pick winners and losers, then help the winners win and help the losers lose. The goal is finality in a dispute. That means helping the winner create a record that has the best chance of being sustained on appeal.

Thus, Bush v. Gore. But when did the rot set in?

The "winners and losers" quote, by the way, is from a lawyer's commentary on the SCO v. IBM trial, in which SCO is alleging, to oversimplify greatly, copying of Unix code which they own. For what it's worth, the loser the judge seems to have picked is SCO -- and since they have produced no evidence for some of their charges after literally years, I have no quarrel with that.

But I've seen the same kind of "active case management" (quoth Groklaw), in which the judge "drop[s] the default mode of just letting the lawyers develop the record while the judge plays referee", at work in another case relevant to the free software community -- the DVD copying case, in which one argument for the defendants was that they were just trying to make a DVD player for Linux. The player exists, and they offered to demo it. But the judge (who had earlier helped form the DVD consortium while in private practice) declined to see the demo, leaving it off the record, and invisible to courts of appeal. If you think the role of the judge is to pick the right winner, and shape the record to favor it, you lose the right to quibble with his choice.

Some folks on the left are absolutely blinded by partisan hatred for Dubya. Take Nouriel Roubini, for instance. (Well, he's not a politician; he's a professor at NYU. But he worked in Clinton's White House -- and besides, we all know about academics). He's got this to say about Dubya's budget deficit projections:

How do they create the false $233b deficit by 2009?

1. They assume spending cuts that are, by any historical and political standard, impossible to achieve.
2. They assume revenue growth that is altogether wishful thinking and false based on current trends. And they do not consider the long-run costs of making all the Bush tax cuts permanent.
3. They do not count the ongoing costs of the continued defense and homeland security spending and of future military and homeland security build-ups.
4. They phase-in a budget busting social security privatization (that will cost alone $4.5 trillion in the next 20 years) only starting in 2009.

Well, actually, that's all true. But here's where he steps over the line:

This is worse than dishonesty; it is the most squalid manipulation of budgets ever seen aimed at pretending to achieve a budget figure that is utterly unrealistic and false in every possible dimension.

Many things are possible in the Dungeon Dimensions of Terry Pratchett's Discworld series that might not be workable here. Why claim otherwise?

Besides, we're only talking budgets here. It's not as if they're trying to use arguments that shoddy to start a war or anything.

How screwed up are our politics? A perfectly straight-faced op-ed column in the Boston Globe recently noted in its first paragraph that ...

... today's conservatives don't love just any kind of ideas, even conservative ones. Big ideas are better than small, and bold ideas--ideas meant to profoundly reshape world history in the name of high principle--are always preferable to cautious ones. Abandoning a once fiercely defended reputation for caution in the face of change, it seems today's proudly swaggering conservatives have adopted the revolutionary role that for 200 years they existed to defeat.

But "caution in the face of change" is what conservatism is. The people we have calling themselves "conservatives" now are something different, and dangerous.

Ah, that liberal media.

Folks on the right have been condemning the U.N. for months on charges that the Iraq oil-for-food program of the 1990s was corrupt -- charges based on evidence supposedly in the possession of Ahmed Chalabi, which he won't let anyone else see. What you may not know is that there has been an official inquiry into these charges -- which found a little low-level corruption, but nothing on the scale that the folks on the right have alleged.

The response of the New York Times, queen of the "liberal media"? An editorial denouncing the report for failing to disclose massive corruption. When right-wing shills have given you the truth, why bother with the facts?

Another year, another Patriots Superbowl victory, and another gaggle of reporters complaining that the team doesn't give them anything to work with -- that there are no personalities, nothing to cover.

Considering the sheer number of people on the team who are doing astonishing things -- playing both offense and defense, for instance, which has been rare in pro football for decades -- that's odd at first blush. And it goes to a style of success that's also rare in the league: these guys play a nasty game in a nasty way, and don't let anyone forget it, but they play it smart. Everyone knows that Bill Belichick doesn't necessarily go for, say, the speediest players he can get; what's not so well known is the emphasis he places on brains. If you can't figure out where to go, it doesn't matter how fast you can get there. A reporter who was willing to work on it could certainly make a story out of that.

The problem is that it would be a hell of a lot of work. They're smart, articulate guys who give lousy interviews. The team takes its cues on public behavior from Belichick, who sees the public arena as an extension of the game, and gives nothing away. They don't talk about injuries. They don't talk about conflicts within the team or possible weak points. They always talk up their opponent, and never say anything that might be tacked up as motivational material on their bulletin board. "We do our talking on the field", they say. All of them. Multiple times in the same interview, if need be. The saying around here is that they've drunk Belichick's Kool-Aid. One local TV station led up to the superbowl by playing a video of a Belichick press conference with a Kool-Aid pitcher superimposed on his head.

But Corey Dillon didn't stop having a personality when he came here -- he just stopped showing the rough edges in public.

The end effect, still, is a team that's more than a bit like the Yankees of the '90s -- clean cut, hard hitting, and with the resources to be in the championship hunt for quite a while yet, with no sharp edges that show in public. (Compare Belichick's public persona with Joe Torre's). They are a great team. But put them next to, say, the Celtic dynasties, or the glorious gang of idiots from Fenway, and they seem oddly not like a great team from Boston.

By the way, a word about the Eagles: they were better than almost around here was giving them credit for, and gave the Pats by far their toughest game of this year's playoffs. They might have won it if they had run a decent two-minute drill in the waning minutes of the fourth quarter -- a lapse that left fans of Belichick's team gaping. But they also provided an object lesson in the virtues of the Kool-Aid face. Everyone respects the astonishing performance that Terrell Owens put in. What they don't respect -- and he can't seem to understand this -- is the way he was shooting his mouth off about it. Terrell, for your own sake, at least save the bragging for after you've done it.