Last week's endorsement - and expansion - of Bush Administration claims that legal immunity cloaks the Oval Office in a protective sheath holding all the bugaboo power of a shyster-schmeister Shroud of Turin has more than a few folks, especially Obama supporters, wondering just how much of the regal, "unitary executive" model the new president is willing to junk.

Glenn Greenwald, himself an attorney, has done a masterful job of hitting the roof over the Department of Justice brief which answered one of the first lawsuits filed over the vast program of illegal wiretapping intiated by the Bush Adninstration. In it, the DoJ demands dismissal of the entire suit, basing its argument on the old Bush claim that "state secrets" privilege bars such lawsuits - even if the spying was illegal - and a brand-new "sovereign immunity" claim, supposedly propped up by the specious Patriot Act, that bars actions against any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

Keith Olbermann, downcast and obviously shocked by the development (he practically stuck to his forehead an Obama bumper-sticker during last year's election), noted last night that reasoning behind the DoJ argument is like a thief proposing it's OK to steal your money if he doesn't spend it afterwards. And it's a stark blow to those hopeful of change from the imperious Bush years, especially when, as Greenwald points out, Obama defended his vote to extend the FISA bill (and wiretap-subpoenas of the FISA courts) this way last summer:

[The FISA bill] also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses.

 

OK... we're... here. We were warned that Presidents are very, very reluctant to diminish the extant powers of the Presidency, even if those powers were pried loose so egregiously by previous regimes as skanky and demented as Bush's. We were warned. Remember? And now, boom, the Executive Office can screw us at will, all the while protecting itself with a fast-concocted "magic condom" of immunity. This isn't Bush-leftover "attorney work product"; it's all Mr. O's. As Marc Ambinder (and, no, I don't always agree with this guy, either) points out in an Atlantic column this week, tracking the margin between public pronouncements and active Obama policy:

Judging by his campaign rhetoric, President Obama's national security legal doctrine -- call it the Obama Doctrine -- would appear to be a model of restraint, where the powers of the executive are checked by a transparent screen and obsequious Congressional oversight...

So far, the administration has thrice sustained the Bush administration's claim of the State Secrets Privilege in urging civil suits against Bush administration officials to be quashed. It has refused several entreaties from judges to re-argue points of law first used by the Bush administration. It has used a signing statement to affirm the right of the federal government to fire whistleblowers. It has treated as secret a draft version of an Internet Protocol treaty, leading Wired magazine to morph Obama's photograph into Bush's.

One of the big excuses in the wiretap song-and-dance has been that Obama needs cooperation from the intelligence community to keep our somehow negligent-but-relentless "war on terror" rocketing along the track to resounding victory. His bridling of the spy branch has been more show than substance. He proscribed torture by the CIA after the agency itself had dispensed with inhanced interrogation, and he hasn't exactly slung anyone on the wall over repeated "Af-Pak" miscalculations that have racked up daunting civillian slaughter in killer-drone attacks.

And you have to wonder, about that other dreadful wraith so haunting our national character - torture. Up to now, on this issue, Obama has elevated foot-dragging to balletic art form; his only action, in fact, has been to withhold key memos authorizing the Dark Age interrogation method so beloved by Yoo, and Ashcroft, Gonzalez and Rumsfeld, and by the bitch-prince of backseat combatants - former vice president Dick Cheney, himself. Will this protective mantle of arbitrarily defined "sovereign immunity" completely suspend domestic legal action against Bush's Scarlet Avengers? Has he completely shrugged off the idea of prosecuting - rightfully - these disgusting atrocities?

Well, it may be out of our hands, since we're all but broke and international legal bodies as far away as Spain, home of the Inquisition, are threatening their own prosecution of our descent into darkness. The recently leaked International Red Cross report on our far-flung dungeon circuit ups the ante considerably, and no one has done a better wrap-up than Mark Danner's two-part report in the New York Review of Books; as one blogger puts it: "Danner's 14,000-word scoop in the April 9 New York Review of Books will turn your coffee cold. Read it, anyway. He... wants to ruin his readers' day with blood and shit and shame. Abu Ghraib was amateur hour."

...He was kept for four and a half months continuously handcuffed and seven months with the ankles continuously shackled while detained in Kabul in 2003/4. On two occasions, his shackles had to be cut off his ankles as the locking mechanism had ceased to function, allegedly due to rust.

...He was kept permanently handcuffed and shackled throughout his first six months of detention. During the four months he was held in his third place of detention, when not kept in the prolonged stress standing position [with his hands shackled to the ceiling], his ankle shackles were allegedly kept attached by a one meter long chain to a pin fixed in the corner of the room where he was held.

...While being held in this position some of the detainees were allowed to defecate in a bucket. A guard would come to release their hands from the bar or hook in the ceiling so that they could sit on the bucket. None of them, however, were allowed to clean themselves afterwards. Others were made to wear a garment that resembled a diaper. This was the case for Mr. Bin Attash in his fourth place of detention. However, he commented that on several occasions the diaper was not replaced so he had to urinate and defecate on himself while shackled in the prolonged stress standing position. Indeed, in addition to Mr. Bin Attash, three other detainees specified that they had to defecate and urinate on themselves and remain standing in their own bodily fluids.

 

Here's some full disclosure: I couldn't get through the whole thing. The repetition of horror induces numbness, suggesting brow-beaten tolerance and acquiescence, even assent. That loss of feeling in the extremities of my revulsion reflex is terrifying to me, here, faraway from a world we've engineered to be so utterly forsaken, so utterly lacking in morality or humanity.

On the Olbermann show last night, Jonathan Alter posited that Obama has been revealed to be more "interested in programs than principles," and that the wiretap brief was so far away from his constituents' vision of hope and change that, perhaps, the blunt reaction would bring him up short, and turn this around.

So, I guess the next move is up to us. Either we end the Bush abominations, or we continue them. There is no middle ground. Remember: What has been lost here, has been lost to us, as well. As former CIA case officer Philip Giraldi wrote in a column this week:

The threat to civil liberties is real. Under the authority of the PATRIOT Act, the FBI requested more than 30,000 national security letters in 2007, and the number was surely higher in 2008. The letters enable the FBI to look at anyone's personal information without any judicial oversight or showing of cause. Anyone who is presented with a letter and compelled to cooperate to provide information on a suspect cannot reveal that the letter has been received. Are there 30,000 terrorists roaming the United States? If there were, the country would surely be a bombed-out ruin by now. The government is instead using the security letters and the other tools provided by the PATRIOT Act legislation to look at people who are completely innocent of any wrongdoing, because it is convenient to be able to do so without the bother of having to go to a judge for a search warrant.

...Obama would have been wiser to ignore the experts and sit back and consider the broader picture. Does the creation of a monstrous Department of Homeland Security supported by a bloated defense and intelligence establishment really make sense in light of the threat that the U.S. actually faces? How did we arrive at a 400,000-name no-fly list and an NSA that has conducted hundreds of millions of interceptions of telephone calls without any oversight? That a small group of terrorists holed up in an isolated and backward part of the world got lucky against an unsuspecting America on 9/11 is clear, but the odds of them repeating that spectacular success are minimal. More than seven years later, the actual vulnerability of international terrorism should be completely clear and the government should be telling the people the good news, that al-Qaeda is on its last legs and that the other Salafist terrorist groups that have a similar philosophy have been hounded and contained all around the world. There has been no successful terrorist action within the United States, and the appeal of jihadist terrorism is on the wane everywhere else. Its moment has passed.

 

The Constitution, that thin slip of parchment, is the only thing up to now that has protected us from ourselves, from the savage spectres that lurk in our fear and anger.

It's gone? We're gone.