US Attorney General Holder: We Won't Torture or Kill Snowden

The fact that nobody was prosecuted for performing and authorizing torture sends very clear message.

Yes -- the whistleblower who said people were being waterboarded.

Since the change in 2009, nobody can say they thought things like waterboarding were legal, and if some field agent were to carry it out s/he would have no defense available in law.

I don't want to turn this intoa Republican/Democrat political issue, but to pretend the two administrations are the same on this issue is just not credible and does not make for a constructive discussion. You can find plenty to criticize about the incumbent administration without needing to invent more.

I just wanted to address the specific allegation above, which was turning the discussion from differing opinions into total inaccuracy.

There are no cases directly on point, and they are arguing by analogy to existing cases where it was held retrieving small amounts of phone data about one or two individuals did not violate a reasonable expectation of privacy, and thus, not a search

This is not the same as "what they are doing is permitted by the current laws of the united states".

I'm aware folks like Orin Kerr think this doesn't make a doctrinal difference: http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fo...

The thing is, he's an academic (prior to his current job, his job at the DOJ CCIP division was being an expert in those notices you see when you access government computer systems). He likes to think in academic terms about whether things should matter. For example, he also believed the "mosaic theory" was a bunch of bullshit and would be struck down by every level right up until the supreme court fully endorsed it (see, e.g, http://www.volokh.com/2010/08/06/d-c-circuit-introduces-mosa... and other posts)

So while i certainly trust his view of "the state of the caselaw as it currently exists", i take his view of "what a court is likely to decide" with a huge grain of salt. On that front, IMHO, he's been wrong more than he's been right.

For example, when he says "If obtaining pen register information on one user is not a search, the obtaining that pen register information for 100 or 10,000 or 1,000,000 or more users is still not a search. Katz tells us that the Fourth Amendment protects “people, not places,” and it’s not clear how surveillance that is not a search when provides information about one person can become a search when it provides information about many."

This tells you everything you need to know. It is a typical ivory tower viewpoint. He doesn't see how a judge is going to decide that there is some line that has been crossed when you do something to a million people instead of 1. As the saying goes, "bad facts make bad law". If everything was doctrinal and academic, bad facts wouldn't matter.

FWIW: The FISA authorization is completely and totally irrelevant in this case. Entirely. The fact that the FISA court said "sure, whatever" does not make something legal, only authorized, because they are not ruling on a constitutional challenge, only the validity of a search warrant. These are not the same, no matter how much the government wants it to be.

This is the same as a valid search warrant that later turns out to have been facially invalid; It is not a legal search warrant that has "gone bad". It is illegal. It was authorized, but illegal.

If it was anything else, a prosecutor trying to make their bones would do that on principle.

He could have said "I lied, but I had to for national security reasons. I don't apologize. The question was inappropriate and Wyden should apologize for asking."

He could have said "I lied, and I shouldn't have. I apologize." (A resignation would be nice.)

But he's quoted as saying "My response was clearly erroneous – for which I apologize."

To me, this sounds like "I thought I was telling the truth but later learned that my statements were incorrect. I apologize."

Which is itself either 1) an admission of incompetence or 2) an additional lie. #2 is much more likely.

Do you see why I called this "apology" contemptible?

I don't think 'ex post facto' works like that, but then IANAL.

Certainly it's hard to hold his trial here in America while he's being tortured overseas, and it's fairly tinfoily anyways; why didn't they send Thomas Drake overseas to torture him? Or Ellsberg today? Surely they could think up something to charge him with, if all they needed was some DoJ lackey to write a memo...