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Via Laura Rozen, Newsweek:

The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents.

The existence of these documents surfaced only in recent days as a result of a Freedom of Information Act lawsuit filed by a privacy group called the Electronic Frontier Foundation. The foundation (alerted to the issue in part by a NEWSWEEK story last fall) is seeking information about communications among administration officials, Congress and a battery of politically well-connected lawyers and lobbyists hired by such big telecom carriers as AT&T and Verizon. Court papers recently filed by government lawyers in the case confirm for the first time that since last fall unnamed representatives of the telecoms phoned and e-mailed administration officials to talk about ways to block more than 40 civil suits accusing the companies of privacy violations because of their participation in a secret post-9/11 surveillance program ordered by the White House.

At the time, the White House was proposing a surveillance bill-strongly backed by the telecoms-that included a sweeping provision that would grant them retroactive immunity from any lawsuits accusing the companies of wrongdoing related to the surveillance program....

The recent responses in the Electronic Frontier Foundation lawsuit provide no new information about the administration's controversial post-9/11 electronic surveillance program itself, but they do shed some light on the degree of anxiety within the telecom industry over the litigation generated by the carriers' participation in the secret spying. One court declaration, for example, confirms the existence of notes showing that a telecom representative called an Office of Director of National Intelligence (ODNI) lawyer last fall to talk about "various options" to block the lawsuits, including "such options as court orders and legislation." Another declaration refers to a letter and "four fax cover sheets" exchanged between the telecoms and ODNI over the surveillance matter. Yet another discloses e-mails in which lawyers for the telecoms and the Justice Department "seek or discuss recommendations on legislative strategy."

The declarations were filed in court by government lawyers only after U.S. Judge Jeffrey White in San Francisco, who is overseeing the case, ordered them to fully process the Electronic Frontier Foundation's FOIA request for documents showing lobbying contacts by the telecoms. The government initially resisted even responding to the FOIA request, but White found that disclosure was in the public interest because it "may enable the public to participate meaningfully in the debate over" the pending surveillance legislation.

... But while complying with the judge's order to confirm the existence of some documents, administration officials have told the judge they cannot actually disclose the documents themselves, in part because to do so would undermine national security. Even to confirm the identity of any of the carriers with whom administration officials have discussed the surveillance issue would implicitly identify the carriers that participated in the program and therefore "would provide our adversaries with a road map" that would help them thwart surveillance against them, according to a court declaration filed by Lt. Gen. Ronald L. Burgess, director of the ODNI's intelligence staff.

Communication between the president and his advisors is one thing, but this is something else entirely. They were working with corporate lobbyists to determine the best lobbying strategy to pass legislation that would cover up the illegal conduct of both the administration and the corporations. To protect this sort of communication would put everyone involved above and beyond the law.

For the 5,479th time: He is a president, not a king. This is a republic, not a monarchy. We are ruled by laws, not men. To allow this sort of behavior is to turn our entire system of government upside-down.

UPDATE: As if on cue, here's a great story from today's NYT that shows precisely where this sort of logic leads:

John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration's legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force.

The hearing, of a subcommittee of the Senate Judiciary Committee, was called by Senator Russ Feingold, Democrat of Wisconsin. Mr. Feingold accused the administration of a "sinister trend" of promoting "secret law."

He referred to the refusal by the Justice Department to release opinions on interrogation and domestic surveillance from the Office of Legal Counsel, whose interpretations are binding on the executive branch.

"It is a basic tenet of democracy that the people have a right to know the law," Mr. Feingold said.

Mr. Elwood, deputy assistant attorney general for the Office of Legal Counsel, disputed that declining to make legal opinions public created improper "secret law." He said some legal opinions had to be kept from public release, at least for a time, because they deal with classified programs or to ensure that government lawyers can give confidential legal advice.

Let's be perfectly clear about this.

A system in which the head of state can modify laws whenever and however he or she wants, and in which the ruler has no obligation to inform the citizens of such changes, is not a democracy. It is a monarchy. That we elect our monarchs does not in any way change this fact. If the law is whatever the head of state says it is, then that head of state has for his or her term in office the very same powers as the King of England in the late 18th century.

You might recall that there once was a revolution to overthrow that form of government. You might further recall that the result of that revolution was the creation of a constitution explicitly designed to prevent that form of government from ever existing in that land again. And if you are really well educated, you might even recognize that these events took place here in the United States of America.

Our entire constitution is premised on a rejection of precisely the argument that is being put forth here. It is the bedrock upon which everything else in our society is built. Not just our government, but our entire way of life. Without the rule of law, nothing else would be the same. Nothing.

Explain to me how their interpretation of government fits with this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Or better yet, from the same document, this:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them....

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries....

For depriving us in many cases, of the benefits of Trial by Jury.

This is not a minor point. If the President can change the law in secret, at any time, and for any reason he believes related to national security, he can do anything. Everything King George did, all of the offenses listed in our Declaration of Independence, he did in the name of national defense. That's why our revolution was considered to be an act of treason, and why all of the men who signed the Declaration were named traitors. According to the King, their actions threatened the state and must be stopped, whatever the cost.

It doesn't matter if you believe Bush to be doing the right thing. Grant him these powers and eventually someone else will come along who uses them in ways you cannot abide. Power corrupts, but absolutely power corrupts absolutely. And if this is not absolute power, then what is?

Why is it so few people seem to understand just how dangerous this is? History shows beyond any shred of doubt that the rule of law offers far more protection for individuals than any benevolent monarchy ever could. That debate was settled in this country over 200 years ago. Two world wars were fought to defend that principle. And the war on terror, at least in theory, is being fought to defend freedoms that the president himself argues do not exist. How does this make any sense to anyone?

Madison was exactly, precisely right:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other -- that the private interest of every individual may be a sentinel over the public rights.

Bush and Cheney wanted their kangaroo courts, and it looks like they almost got them. Were it not for a few brave men and women in the Military's JAG Corps, who knows how far this would have all gone.

WaPo:

GUANTANAMO BAY, Cuba, April 28 -- The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.

Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.

His testimony in a small, windowless room -- as a witness for Salim Ahmed Hamdan, an alleged driver for Osama bin Laden -- offered a harsh insider's critique of how senior political officials have allegedly influenced the system created to try suspected terrorists outside existing military and civilian courts.

Davis's claims, which the Pentagon has previously denied, were aired here as the Supreme Court nears a decision on whether the Military Commissions Act of 2006 that laid the legal foundation for these hearings violates the Constitution by barring any of the approximately 275 remaining Guantanamo Bay prisoners from forcing a civilian judicial review of their detention.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

He also said Hartmann took "micromanagement" of the prosecution effort to a new level and treated prosecutors with "cruelty and maltreatment." Hartmann, he said, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.

Davis, who initially defended the commissions process, testified that he resigned his position as chief prosecutor late last year as senior officials increased pressure on him to make decisions he thought were inappropriate. He now heads the Air Force Judiciary and plans to retire. Hartmann declined to comment on the proceedings through a spokesman, Air Force Capt. Andre Kok.

Andrew Sullivan responds to the idea that "We can't have acquittals":

In a very simple phrase, you can see all the bad faith, stupidity and impeachable violations of core American values at the very top of this rotten administration. They have forfeited any trust in their handling of these matters; indeed have shown how vital it is that they are swept out of office and replaced with something utterly different. Something, you know, American.

When the Japanese tortured in WWII, they were doing it in the name of national security.

When the Germans tortured in WWII, they too were doing it for their national security.

When Stalin tortured dissidents, he said did it to protect his nation's security.

When Pol Pot's regime tortured its captives, it did it to defend the regime.

When Torquemada tortured heretics, he did it for God.

Even the Holocaust was justified in the name of defending the state.

Regimes that torture always believe themselves justified. To believe otherwise is to show a level of historical ignorance so complete that it is astonishing.

Unless you are willing to embrace a form of moral relativism, creating a world when good and evil depend wholly on the excuses and arguments we offer to one another, there must be objective standards against which all of us can be compared.

Keep all that in mind as you read this. NYT:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit "outrages upon personal dignity," a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

"The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act," said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public....

"What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense," said Scott L. Silliman, who teaches national security law at Duke University.

The logic: So long as we believe we are right, what we are doing cannot be wrong. According to the Bush administration and its defenders, morality and the law are subjective, relative, and totally unmoored from any universal standard. Forget god, religion, natural law, or any other system of beliefs that you hold dear. Under this justification, none of them matter. The law is what the defenders of the state say it is. Ideals and beliefs are irrelevant.

When others use this logic to torture Americans, what will we say? When our enemies use our own words and logic against us, to whom will we turn? We will have no one to blame but ourselves. It is only a matter of time before this is turned against us. It is inevitable.

We cannot defend our beliefs by abandoning them.

We cannot protect our ideals by forgetting them.

Why are they doing this to our country? How can anyone defend this?

This is not who we are. This is not why so many struggled for so long to create this nation. We are dishonoring ourselves and our ancestors through these actions. All of their hopes, dreams, and ideals live in us, and if we abandon them, all that they lived and all that they dreamed means nothing. Nothing.

Why are we doing this? Why?

Pouring, not forcing, right Mr. Ashcroft?

Over at Balkanization, Marty Lederman has a great follow-up to yesterday's story about John Ashcroft and the establishment of an official torture regime here in the United States. It's an absolute must-read.

Worth noting: we really still are at the beginning of this story, not the end. There are still over 7,000 pages of documents that the administration is trying to keep classified, and its not at all clear if lawsuits are going to force open access to them. One way or another the truth will eventually come out. The question is not if, but when.

I don't often link to diaries at Daily Kos, but this one is an absolute must read. Highlights:

Earlier today, I promised you Kossacks an eyewitness account of John Ashcroft's speech on "Leadership in Troubled Times" at Knox College this evening, which I just got back from attending. So, while it's still fresh in my mind, here's how it went--including the question I asked that made him lose his cool completely.

From the transcript of the Q+A session, with the final segment the Q+A between the dKos diarist and Ashcroft:

TOM: This story was made public by ABC a few weeks ago. It claims that you, Rice, Tenet and others met in the White House to discuss different methods of "enhanced interrogation," is that correct?

ASHCROFT: (angrily) Correct? Is what correct? Is it correct that this story ran on ABC? I don't know that. I don't know anything about it! Is it a real story? When was this story, huh? Huh?
TOM: Um, early April, April 9th, I think...
ASHCROFT: (interrupting) You think? You think? You don't even know! Next question!
TOM: The article says that you discussed "whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning"...
ASHCROFT: I said, next question!

[...]

ASHCROFT: No. No it doesn't violate the Geneva Conventions. As for other laws, well, the U.S. is a party to the United Nations Convention against Torture. And that convention, well, when we join a treaty like that we send it to the Senate to be ratified, and when the Senate ratifies they often add qualifiers, reservations, to the treaty which affect what exactly we follow. Now, I don't have a copy of the convention in front of me...
ME: (holding up my copy) I do! (boisterous applause and whistling from the audience) Would you like to borrow it?
ASHCROFT: (after a pause) Uh, you keep a hold of it. Now, as I was saying, I don't have it with me but I'm pretty sure it defines torture as something that leaves lasting scars or physical damage...
A STUDENT FROM THE AUDIENCE: Liar! You liar! (the student is shushed by the audience)
ASHCROFT: So no, waterboarding does not violate international law.

[...]

ME: First off, Mr. Ashcroft, I'd like to apologize for the rudeness of some of my fellow students. It was uncalled for--we can disagree civilly, we don't need that. (round of applause from the audience, and Ashcroft smiles) I have here in my hand two documents. One of them, you know, is the text of the United Nations Convention against Torture, which, point of interest, says nothing about "lasting physical damage"...
ASHCROFT: (interrupting) Do you have the Senate reservations to it?
ME: No, I don't. Do you happen to know what they are?
ASHCROFT: (angrily) I don't have them memorized, no. I don't have time to go around memorizing random legal facts. I just don't want these people in the audience to go away saying, "He was wrong, she had the proof right in her hand!" Because that's not true. It's a lie. If you don't have the reservations, you don't have anything. Now, if you want to bring them another time, we can talk, but...
ME: Actually, Mr. Ashcroft, my question was about this other document. (laughter and applause) This other document is a section from the judgment of the Tokyo War Tribunal. After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding...
ASHCROFT: (interrupting) This is a speech, not a question. I don't mind, but it's not a question.
ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")
ASHCROFT: (angrily) Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.
ME: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...
ASHCROFT: (interrupting, red-faced, shouting) Pouring! Pouring! Did you hear what she said? "Putting a cloth over someone's face and pouring water on them." That's not what you said before! Read that again, what you said before!
ME: Sir, other reports of the time say...
ASHCROFT: (shouting) Read what you said before! (cries of "Answer her fucking question!" from the audience) Read it!
ME: (firmly) Mr. Ashcroft, please answer the question.
ASHCROFT: (shouting) Read it back!
ME: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."
ASHCROFT: (shouting) You hear that? You hear it? "Forced!" If you can't tell the difference between forcing and pouring...does this college have an anatomy class? If you can't tell the difference between forcing and pouring...
ME: (firmly and loudly) Mr. Ashcroft, do you believe that Yukio Asano's sentence was unjust? Answer the question. (pause)
ASHCROFT: (more restrained) It's not a fair question; there's no comparison. Next question! (loud chorus of boos from the audience)

And the verdict?

My final verdict on Ashcroft: this is what Hannah Arendt meant by "the banality of evil." He seems like a normal guy (albeit one with some real anger issues), and yet...well, I don't need to finish that sentence. Nonetheless, I'm very, very glad I went, and I'd do it again in a heartbeat.

That's exactly, precisely correct. War criminals are often portrayed as if they are all either sadistic jailers or Adolf Hitler himself, but as history shows they are also far too often civil servants like Ashcroft who were, in their own eyes, just doing their job. But as the Nuremburg Trials clearly established, in the eyes of the law all are equally responsible for the evil they helped create, something that Ashcroft himself must surely understand.

Their day of reckoning is coming. It may take years, sadly perhaps even decades, but it will come.

Want proof that oversight works precisely the way the Framers of the Constitution intended? TPMmuck has your proof.