Back in December 2005, John Yoo was asked if any law or treaty could prevent the President of the United States from torturing someone, "including by crushing the testicles of the person's child." Yoo, then head of President Bush's Office of Legal Counsel at the Department of Justice, responded, "I think it depends on why the president thinks he needs to do that." To put it another way, the American people just have to take the President's word for it.

That's what makes the revelations in the Obama DOJ's white paper on lethal strikes targeting American members of Al Qaeda so disappointing--and so disturbing. President Obama or an unspecified "informed, high-level government official" will decide if an American citizen anywhere in the world represents an "imminent" threat to the United States, even if no evidence of a planned attack exists. With no oversight from Congress or review from the equivalent of a FISA court, the President and his team will act as judge, jury and executioner. Trust, but don't verify.

Voices as diverse as the Center for American Progress, former Bush assistant attorney general Jack Goldsmith and a bipartisan group of Senators have called for a new legal regime to govern America's expanding campaign of clandestine drone strikes and special operations. The concern arises not because the targeting of the enemy's operational leaders is a violation of U.S. or international law. (As Attorney General Eric Holder explained in his March 5, 2012 speech which first hinted at the existence of the DOJ guidelines, the killings of Japanese Admiral Yamamoto during World War II and Osama Bin Laden in Pakistan provide ample precedent for the President to exercise his powers as Commander-in-Chief under Article II of the Constitution.) Still, drones are rapidly transforming American national defense itself, with potential surveillance at home and the rising number of deadly strikes abroad altering the very definition of warfare. (It is worth noting that American drone warfare has not only triggered a probe by the United Nations, but more importantly is producing blowback in Pakistan, Yemen and other battlefields in the war against Al Qaeda and its affiliates.) But the targeting of American citizens is new territory altogether. And in the wake of this week's disclosures, Attorney General Holder's pledge to guarantee Americans' due process rights under the Fifth Amendment in March seems woefully insufficient:

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I know we'd all like to think there are ways to protect our privacy online, but there really aren't any - at least, any we have access to. And as long as Congress is too afraid of seeming "soft on terror," it's unlikely that legislation protecting our privacy will be passed. From Democracy Now!:

Welcome to Democracy Now!, Josh. Explain what they’re doing in Iran and then how the same technology is being used here.

JOSH SILVER: Well, yesterday, the Wall Street Journal reported that the Iranian government had secured this system from a German and Finnish company that will look through everything, both land line telephones, mobile telephones, email, websites, looking for keywords and actually monitoring the entire traffic going through one chokepoint in Iran. It’s been disputed by the European company, but the validity of the report seems solid.

What’s scary about this is that this technology that monitors everything that goes through the internet is something that works, it’s readily available, and there’s no legislation in the United States that prevents the US government from employing it. And that’s what’s really the cautionary tale here.

AMY GOODMAN: Your report is called “Deep Packet Inspection: The End of the Internet as We Know It.” Why does it threaten the internet, overall?

JOSH SILVER: Well, the problem is, is that, you know, if you look back to the 1930s, when telephone service became ubiquitous around the United States, lawmakers realized then that there was this new communications infrastructure and there needed to be consumer protections so that the government and others could not unlawfully or unethically monitor and listen in to the private conversations of American citizens. They established laws that prevented that from happening. In those laws, it made it so that the government requires a legitimate warrant, issued by a judge, that lets them do such monitoring.

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Why is it that, on the issues that count (Iraq, torture, FISA, secrecy), this administration is so much like the previous one? It really makes me wonder:

The Obama administration objected yesterday to the release of certain Bush-era documents that detail the videotaped interrogations of CIA detainees at secret prisons, arguing to a federal judge that doing so would endanger national security and benefit al-Qaeda's recruitment efforts.

In an affidavit, CIA Director Leon E. Panetta defended the classification of records describing the contents of the 92 videotapes, their destruction by the CIA in 2005 and what he called "sensitive operational information" about the interrogations.

The forced disclosure of such material to the American Civil Liberties Union "could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed," Panetta argued.

Although Panetta's statement is in keeping with his previous opposition to the disclosure of other information about the CIA's interrogation policies and practices during George W. Bush's presidency, it represents a new assertion by the Obama administration that the CIA should be allowed to keep such information secret. Bush's critics have long hoped that disclosure would pinpoint responsibility for actions they contend were abusive or illegal.

Last month, President Obama said he would seek to bar the release of photographs being sought by other nonprofit groups that depict abusive interrogations at military prisons during the Bush administration.

Panetta argued that none of the 65 CIA documents immediately at issue, which the ACLU has sought for several years in a Freedom of Information Act lawsuit, should be released. He asked U.S. District Judge Alvin K. Hellerstein to draw a legal distinction between the administration's release in April of Justice Department memos authorizing the harsh interrogations and the CIA's desire to keep classified its own documents detailing the specific handling of detainees at its secret facilities overseas.

He said that while the Justice Department memos discussed harsh interrogation "in the abstract," the CIA information was "of a qualitatively different nature" because it described the interrogation techniques "as applied in actual operations."

Glenn Greenwald, who's a former constitutional attorney, is very unhappy with this move from the Justice Department:

[...] Late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.

There are several notable aspects to what happened here with this new court filing from Obama:

(1) Unlike in the prior cases where the Obama DOJ embraced the Bush theory of state secrets -- in which the Obama DOJ was simply maintaining already-asserted arguments in those lawsuits by the Bush DOJ -- the motion filed on Friday was the first response of any kind to this lawsuit by the Government. Indeed, EFF filed the lawsuit in October but purposely agreed with Bush lawyers to an extension of the time to respond until April, in the hope that by making this Obama's case, and giving his DOJ officials months to consider what to do when first responding, they would receive a different response than the one they would have gotten from the Bush DOJ.

That didn't happen. This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials. Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance. Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of "state secrets" to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself.

(2) It is hard to overstate how extremist is the "sovereign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying.

As EFF's Kevin Bankston puts it:

This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.

Via Skimble, a most interesting theory:

I have yet to see this reported anywhere, but an anonymous commenter named trademonster on an investment forum said this (notice the dates):

01-09-06 06:49 AM

I've heard that SEC is going to shut down Madoff financial and all of their hedge funds for SEC violations. Can anyone confirm this?

And this:

01-14-06 02:52 PM

I actually got some update and found out that it's Spitzer's office doing the investigation not SEC. But I don't know what the scope of the investigation is.

Suddenly Spitzer's dalliances with a hooker don't seem quite as fundmentally important to the financial health of this country.

We need people who understand the system to police it. No matter how sanctimonious or egomaniacal you may find him, Spitzer understands the financial system. If these posts are true, somebody in power was more interested in the the details of Eliot Spitzer's transactions than Bernard L. Madoff's. They were obviously more interested in killing the watchdog than in catching the billionaire burglar.

And via Corrente, something even more interesting from Michael Isikoff's Newsweek story about the FISA whistleblower:

[Under the secret and illegal "Stellar Wind" program of domestic warrantless surveillance,] NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of "suspicious-activity reports," or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer's use of prostitutes.) These records were fed into NSA supercomputers for the purpose of "data mining"—looking for links or patterns that might (or might not) suggest terrorist activity.

Lambert asks an important question: How did the suspicious activity report on Spitzer's financial transaction get from the NSA to the FBI?

He also notes the convenient timing, because Spitzer at the time was looking into the monoline insurance companies - another important piece of the Wall St. crash.

Was the Bush administration using illegally obtained information to take down political enemies? Oh, I think it's a safe bet. And do you suppose they were deliberately trying to keep Spitzer from exposing extensive Wall St. fraud?

What do you think?

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Glenn Greenwald talked with Bill Moyers Friday night about the rule of law and how it was perverted by the Bush administration:

BILL MOYERS: To be fair, you make a strong case in here that we have to stand up to extremism but that we have to protect our own constitutional principles while we do. And as I read both of these books, it is the sense that out of this Manichean view there came this whole notion that you say is alien to America, this unitary executive powers of the presidency. Have I stated that right?

GLENN GREENWALD: You have. Let’s just quickly describe in the most dispassionate terms, as few of euphemisms, as possible, where we are and what has happened over the last eight years. We have a law in place that says it is a felony offense punishable by five years in prison or a $10,000 fine to eavesdrop on American citizens without warrants. We have laws in place that say that it is a felony punishable by decades in prison to subject detainees in our custody to treatment that violates the Geneva Conventions or that is inhumane or coercive.

We know that the president and his top aides have violated these laws. The facts are indisputable that they’ve done so. And yet as a country, as a political class, we’re deciding basically in unison that the president and our highest political officials are free to break the most serious laws that we have, that our citizens have enacted, with complete impunity, without consequences, without being held accountable under the law.

And when you juxtapose that with the fact that we are a country that has probably the most merciless criminal justice system on the planet when it comes to ordinary Americans. We imprison more of our population than any country in the world. We have less than five percent of the world’s population. And yet 25 percent almost of prisoners worldwide are inside the United States.

What you have is a two-tiered system of justice where ordinary Americans are subjected to the most merciless criminal justice system in the world. They break the law. The full weight of the criminal justice system comes crashing down upon them. But our political class, the same elites who have imposed that incredibly harsh framework on ordinary Americans, have essentially exempted themselves and the leaders of that political class from the law.

They have license to break the law. That’s what we’re deciding now as we say George Bush and his top advisors shouldn’t be investigated let alone prosecuted for the laws that we know that they’ve broken. And I can’t think of anything more damaging to our country because the rule of law is the lynchpin of everything we have.

Murray Waas, has a new piece out in the Atlantic that doesn't look real good for the President Bush or his former Bushie AG---Alberto Gonzalez:

The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program, according to sources close to the investigation. <>

In reauthorizing the surveillance program over the objections of his own Justice Department, President Bush later claimed to have relied on notes made by Gonzales about a meeting that had taken place the day before (March 10), in which Gonzales and Vice President Cheney had met with eight congressional leaders—also known as the “Gang of Eight”—who receive briefings about covert intelligence programs. According to Gonzales’s notes, the congressional leaders had said in the meeting that they wanted the surveillance program to continue despite the attorney general’s refusal to certify that it was legal.<>

But four of the congressional leaders present at the meeting say that’s not true; they never encouraged the White House to sidestep the objections of the attorney general and continue the program without his approval...read on

Forgeries for FISA....

democracy arsenal: Our network stooges remain in the tank, but the determinedly blinkered Beltway pundits have finally noticed McGrampa's serial gaffes, and even the normally hackish Joe Klein has written about his desperate dishonesty. But the Maverick's latest isn't a mere gaffe. It betrays a frightening fundamental ignorance of Iraq.

Calculated Risk: $1 trillion needed to solve the Housing Crisis. Mortgage rates increase sharply. G-Dub says, 'Wall Street got drunk'.

The Mahatma X Files: I'm feeling safer already! Thanks for caving on that FISA legislation, Barack!

Street Prophets: Joe Lieberman is less popular with Jews than Barack Obama

Skewz: S.C. state Senator and southern fried bigot posts Osama-Obama photo

The Satirical Political Report: McCain resubmits his op-ed to the New York Times

Look out, Max and the Marginalized are back, this time with their FISA song, Free Evenings and Weekends.

According to Glenn, and anyone who follows American politics, this is the Democrats' grand strategy: Give Bush everyone he wants so that the Republicans can't attack them as weak and spineless. How's that working out so far?

Salon:

Historians writing about the Bush era were given a great gift yesterday -- an iconic headline that explains so much of what has happened in this country over the last seven years:

Their rationale for doing that is that it prevents the Republicans from depicting them as "weak," because nothing exudes strength like bowing. Here's more evidence of the brilliance of the Democratic strategy to show how "strong" and "tough" they are by bowing to Bush and all of his demands, from this morning's New York Times article by Eric Lichtblau:

WASHINGTON — The Senate gave final approval on Wednesday to a major expansion of the government's surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues...

There comes a point when you have to wonder whether or not the Democrats actually support some of these disastrous bills they help usher through Congress. President Bush is the most unpopular President since the advent of polling, yet time after time they cave and give in to every one of his demands, despite overwhelming opposition to the policies he seeks. Save for the few in Congress who actually vote against these monstrosities, it's hard to deny that the majority of them actually think things like telecom immunity are a bad idea. After all, as we learned last week, it pays off.