One of the most thoroughgoing unpunished scandals of the second Bush Administration was its unconscionable politicization of the Department of Justice—an unprecedented malfeasance in office unmatched until this present bunch came to Washington. The most famous consequence of what the Bush DOJ did was the firing for political reasons of a number of U.S. Attorneys, at least partly because they declined to investigate phony claims of “voter fraud.”

But one of the sidelights of the scandal was the fact that any applicants to various DOJ programs were screened for their political affiliations in violation of federal regulations. As DOJ Inspector General—and former Rhodes Scholar, and former Harvard point guard—Glenn Fine wrote at the time:

The ones who are no longer with the Department should never get a job with the Department or, in my view, any other Federal agency based upon the conduct listed.

One of the people involved in the rigged screening process—and, therefore, one of the people Fine wished would be permanently disqualified from any federal employment—was a lawyer named Howard Nielson. Nielson did, in fact, vanish from the scene for a bit, but he later surfaced as one of the lawyers defending California’s Proposition 8, the law that would have eliminated the right of same-sex couples to marry in that state.

One of Nielson’s arguments in appellate court was that the original federal district judge who’d struck down the law should be reversed because he was gay and might want to get married one day. The appeals court hit Nielson with a cast-iron gavel.

In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.

You know what’s coming, right?

There are, of course, more reasons why putting this jamoke on the federal bench is a dubious proposition, and the Alliance For Justice has a nice list of them, of which this is the most disturbing.

On yet another front, the use of torture, Nielson appears inclined to reinforce the worst impulses of President Trump. Trump has questioned the Geneva Conventions and supported waterboarding, saying, “The problem is we have the Geneva Conventions, all sorts of rules and regulations, so the soldiers are afraid to fight.” He has said he wants to “bring back a hell of a lot worse than waterboarding.” Significantly, Nielson worked in the Office of Legal Counsel (OLC) in the George W. Bush Administration when the notorious “torture memos” were issued. He defended them. In addition, he authored a memorandum that gutted protections for persons in custody under the Geneva Conventions, a memorandum one expert said was based on such “erroneous legal reasoning and conclusions” that it should be “add[ed] . . . to the Legal Scrapheap.”

Nielson’s torture memo was a bog-standard Bush Administration/Cheney wet dream justification for extra-legal savagery under the color of the flag of the United States. International law expert Beth Van Schaack, writing at justsecurity.org, reminds us that, not only was Nielson an enthusiastic apparatchik, but a pretty bad lawyer, as well—which, I guess, was the point.

Nielson argued that the Geneva Convention devoted to the protection of civilians in enemy custody or detention only applies to civilians held on U.S. territory. That treaty (the 4th Geneva Convention governing international armed conflicts) requires signatories to treat all civilian detainees humanely and prohibits torture and other forms of mistreatment. If Nielson’s theory of the treaty were to prevail, United States personnel could torture civilians—so long as they did so outside the United States—without breaching the treaty. Under the same reasoning, our adversaries could harm U.S. civilians in their custody, so long as the victims were not brought back to the territory of the belligerent in question.

In short, the memo advocates for the removal of any constraints on how treaty signatories (which now number all the states of the world) treat civilians outside their territories. This warped interpretation finds no support in international or domestic jurisprudence, the treaties’ drafting history, the treaties’ humanitarian object and purpose, or legal scholarship…

Well, if you’re going to be picky.

I’ll make the Toby Ziegler Bet—all the money in my pocket against all the money in Nielson’s pocket—that the president* wouldn’t know Nielson if he sat in his lap. The process of picking judges has been farmed out to the legal community in the vast system of wingnut welfare, where a record like Nielson’s guarantees employment, and where the law is even more of an ass than Mr. Bumble thought it was.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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