Obama did not take a meaningful stand against telco immunity. He saw a political viable third way to get out of it. At that point, I gritted my teeth and stuck with him, constantly repeating Better Than McCain to myself.

Don't try to argue this. It's unbecoming, and anyway has nothing to do with the larger point at hand.

OK. Let's look at the facts. The Obama DOJ has claimed, in a motion presented before a judge, sworn in before a court of law, that it

a) Can continue to keep secret information about the illegal warrantless wiretapping program and its predecessor the TSP (which, may I remind you, was so egregious that even Ashcroft refused to sign it)

and

b) That it cannot be sued for anything ever with regards to illegal warrantless wiretapping because of sovereign immunity that raises the executive above the courts.

Now, what exactly is going to have to happen before "all the facts are in?" Will you have to open up your closet and find Obama himself with a hand cupped to your bedroom wall? I mean, he flip-flopped on FISA and now he's extending Bush's arguments to explicitly PREVENT any other information from coming to light.

It's denial to the point of delusion to think that this means he is meaningfully committed to being MORE open.

But legal claims mean things. If the Obama DOJ wasn't intent on keeping hold of (and extending) these executive powers, why would they cite them as their defense? Let's say they go up to SCOTUS and win. What then? Is Obama going to say oops, my bad?

I mean, I just can't think of any reasonable scenario in which someone would think that expanding Bush era legal arguments telegraphs that you really want to tear down those arguments. I think it's denial. I feel the urge too. I canvassed for Obama for months. I was out there telling everyone I know to watch out for this guy since 2006.

But at a certain point, it is no longer credible to say "oh yes, Obama is doing this, but that's just his secret sneaky ninja plan to do the exact opposite of the thing he is currently trying to do." There are no opposite days in the high echelons of governance.

If you're talking about the judicial process, "let's just wait and see" is an incredibly useless thing to say here. No one is suggesting that we throw procedure out the window and haul Obama and Holder over the ramparts.

If you're talking about the inclinations of the Presidency, I'm not sure we need much more to see.

You say the DOJ has to defend the government or else it's legal malpractice. You know what is also legal malpractice? Making legal claims that you know or should know to be false and specious.

There's a reason Gonzo can't find a job, and it's not because anyone doubts his recall. It's because they're aware that he, and Yoo, and Addington all made terrible legal arguments that no self-respecting lawyer would ever make.

Here, we have two options. Either the DOJ is committing legal malpractice by making disingenuous and specious arguments, or they really believe this stuff and are fighting to the core for it. I don't think either one of those alternatives is acceptable, and we certainly don't need to wait any longer to see that.

As a student of law, I realize that an assertion in a motion does not necessarily equate official government policy. But why even make the argument at all? Obama said loudly, publicly, and clearly on the campaign trail that warrantless wiretapping was wrong.

In this case, he could have required that his lawyers make their arguments in accordance with the Constitution and not simply reiterate and expand the Bush era drivel. They still would have been defending the client, but it would have been a difference of legitimacy and degree. It's like the defense attorney of an accused rapist going after the evidence or process of the prosecutor vs. him calling the victim to the stand and calling her a whore.

These legal arguments are horrible artifacts of the Bush administration. Any lawyer should be ashamed to use them. Why does Obama continue to promulgate and EXPAND them? I don't think we can assume he is secretly against them any more.