In the past four posts, we have mentioned the Washington Post editorial obsessively. Even to ourselves, LI is beginning to sound like the Spike Jones imitation of Peter Lorre. We return to it one more time, simply to underline another aspect that this editorial, carrying water for a disreputable agency, passes over in silence: the question of what to do about justices who collude in grossly unethical behavior before they become justices. The three men implicated in the verdict in Houston are:
Stanley Sporkin, retired, Federal Court, Washington, D.C.
D. Lowell Jensen, U.S. district judge, San Francisco
Stephen Trott, associate justice, ninth circuit.
Who are these vigilantes posing as officials of the U.S. government? A little research turns up three ripe bios. In the last year, the Dems blocked a few of Bush’s appointees, and that became a big deal, at least for the GOP. But if you look at the bios of the people who are already on the court, another question comes to mind: why doesn’t the Congress block more justices? Maybe all of them?
Start with Jensen. He came to D.C. as part of Meese’s “Alameda mafia” back in the 80s. He’d made a name for himself in California by prosecuting, in the sixties, various black radicals and student radicals. Everything about him seems like a caricature out of Philip Dick, or Thomas Pynchon. A user of informers, a breaker of dissent, a regular Politburo type of guy, plus a nice burnish of racism on the side. We were particularly interested in the case that gave him his start. It was the case of the Port Chicago mutiny. We’d never heard of it before we started delving into Jensen’s background. Interesting and symptomatic bit of American history. An explosion occurred at Port Chicago navy base in California that killed 300 some people in 1944. Most of the haulers and handlers for these ships were black. Being black, the soldiers weren’t expected to object to returning to an obviously dangerous situation in which safety precautions were not put in place on any scale to meet the obvious material dangers of the work. The site devoted to the incident explains:
“The black ammunition handlers, many of whom had quietly voiced concerns about safety, feared loading ammunition again. Fifty enlisted black men, including one with a broken arm, were tried for mutiny. The men stated they were willing to follow orders, but were afraid to handle ammunition under unchanged circumstances. They stated they had never been ordered to load ammunition, only asked "if they wanted to load ammunition."
All 50 were found guilty of "mutiny," and sentenced to 15 years. Review of the sentence brought reductions for 40 of the men to sentences of 8 to 12 years. Joe Small, who acted at foreman for his group of loaders and others who were willing to criticize the operation had their original sentence upheld. An appeal by Thurgood Marshall of the NAACP was denied. In 1944 the Navy announced that blacks at ammunition depots would be limited to 30% of the total. In 1945 the Navy officially desegregated.
In January 1946 the 50 "mutineers" were released from prison, but had to remain in the Navy. They were sent to the South Pacific in small groups for a "probationary period," and gradually released.”
Jensen’s beginnings prefigure his whole illustrious career. It is reminiscent of the way Gloucester’s hump prefigures the death of the little princes in the tower in Richard III. Enough of that klutz.
Sporkin is a more interesting and important character. Moreover, he’s a D.C. character. He was William Casey’s associate on the SEC in the seventies. When Reagan appointed Casey head of the CIA, he brought Sporkin with him. Much was made in the papers, at the time, about Sporkin’s supposed liberal and Democratic leanings. Being a liberal and a Democrat has never gotten in the way of obstructing justice in the service of some obscurely nasty anti-communist plan that the Pentagon or the CIA or the Executive office wants performed, something in which innocents in a foreign land will die, and D.C. clubmen, later, will chuckle. Sporkin was just right for the job. He became a 5th district judge in 1985, which was excellent timing. Because in 1986 the first indications of Iran-Contra came out. And Sporkin was intimately involved with all players in that scandal.
There’s a site devoted to Iran-Contra on which is assembled a sheaf of newspaper stories from the Post at the time, all concerned with Sporkin’s actions. During the Iran-Contra hearings, he was questioned about a document he backdated authorizing the illegal Iran end of the operation, and his answer tells us a lot about Sporkin’s view of the legal process. This is from a Mary McGrorey column in the WP..
“The committee lawyer who questioned him, Tim Woodcock, pointed out that the Hughes-Ryan law, which even spies are supposed to observe, calls for presidential approval of a covert action before it actually occurs.
Sporkin, who spoke in the loudest voice yet heard in the hearing room, obviously thought that the counsel was being picky and just a little bit unrealistic: `Well, I think it is important, obviously, in the perfect world. . . . to have the president authorize it, everything, in writing beforehand.'
But he didn't `flyspeck' it, and he retroactively authorized the third shipment, which had occurred within hours of his decision on the finding.
Sen. William S. Cohen (R-Maine) said that he had backdated the ratification of something that occurred without a presidential finding.
Said Sporkin, showing the cavalier spirit that informed the North-Casey orbit: `You can't straitjacket the president. . . . Someone can go out and do it, and later on you can do the paperwork.' Strains of Fawn Hall's seminal declaration that `sometimes you have to go above the written law.' “
Indeed. LI sees, in Sporkin’s actions and defenses of those actions, a startling similarity to the production of the fraudulent affadavit in Wilson’s trial. Is Sporkin a serial misleader?
It should be noted -- Wilson's habitual collaborators, and the people who prosecuted Wilson, all seemed to get drawn in, later, to the Iran-Contra Scandal. Jensen, too, was involved in that affair.
Our third villain provides the comic relief. All rise for the right Dishonorable Stephen Trott.
Trott has a background that cannot be introduced, at a lawyer's smoker, without some reference to his role as a sixties folksinger with Highwaymen. They had a modest hit. That is the extent of Trott's qualification for being a judge, actually. That and the kind of intellectual capacity he recently revealed in a speech to the Commonwealth Club in San Fran. The speech is a doozy, offering Trott’s ideas on torture:
“It's for these obvious reasons that we've asked our law enforcement and intelligence operations to focus more on the prevention of crimes that have not yet happened rather than on just solving the ones that have. One's instincts for survival would be in question if we did not endorse this preventative approach. But as is always the question, especially in a nation governed by the rule of law, is, How do we do it? And the second question is, To what extent, and for how long, do we have to recalibrate our notion of our civil liberties?”
“Suppose you are the head of the FBI and your chief special agent reports that he has intercepted a terrorist over the telephone talking to another terrorist in Washington, D.C., and the person you have just arrested has ordered the detonation of a dirty nuclear bomb in our nation's capital. Your chief agent tells you the problem is we don't know who this person we have arrested was talking to or where that person is. We don't know where the bomb is; all we know is that it's going to go off within 24 hours. Your agent tells you that there is an exception to the Miranda rule for circumstances like this, and you don't have to tell this terrorist before you talk to him that he has the right to remain silent or to consult with an attorney. He asks for permission to torture the terrorist until the terrorist tells you who the bomber is and where this nuclear weapon is. Do you tell your chief agent to prevent the extinction of Washington, D.C.? Or do you remember what the Supreme Court said in Rochin v. California, that any method that shocks the conscience violates due process and cannot be used in law enforcement? This is a hypothetical, but it takes on a certain air of reality after September 11, 2001.
Interestingly, Alan Dershowitz, the great civil libertarian, has suggested not only that torture in a ticking-bomb case would be constitutionally appropriate, but that we should also authorize federal judges where appropriate to entertain applications for torture warrants. Dershowitz believes that the FBI shouldn't make the decision by itself; it should go to a federal judge and apply for official permission to torture the terrorist to find out where the bomb is. He says, "An application for a torture warrant would have to be based on an absolute need to obtain immediate information in order to save lives, coupled with probable cause that the suspect had such information and is unwilling to reveal it. The suspect would be given immunity from prosecution based on information elicited by the torturer. The warrant would limit the torture to non-lethal means such as sterile needles stuck under his fingernails, inserted to cause excruciating pain without endangering life." Some people think this sounds wacky. If you were the head of the FBI, it might not sound wacky to you in a worst-case scenario.”
And so on. The sterile needles bit is good. Trott, remember, is actually a federal judge. As for the recalibration of our civil liberties -- well, they made the experiment in the trial of Edwin Wilson. Let us hope that the papers pick up on this obvious trail -- but let's not hope too much. The newspapers have been helpfully recalibrating our civil liberties for years. They've perfected the right not to know.