Right - this kid of legal reasoning could never survive open scrutiny:

“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.

Hardly. To poison the well for McCain all one needs to do is recite the facts. McCain is far too efficient at "smearing" himself. No need to interrupt him as he does so. Here's a quick compilation for you.

Friday, April 25, 2008
McCain's Terrible, Horrible, No-Good Very Bad Week
by dday
http://digbysblog.blogspot.com/2008/04/
mccains-terrible-horrible-no-good-very.html

One merely needs to trail after him and take notes.

The genesis of these laws is contained in what Dick Cheney had to say on Presidential power before any laws were changed.

'I do have a view that over the years there has been an erosion of Presidential power and authority...a lot of things around WATERGATE and VIETNAM both, in the seventies, served to erode the authority. I think the President needs to be effective, especially in the national security area...yes, I believe in a strong robust executive authority and I think the world we live in demands it.'

The main creators of the legal framework under which the War On Terror have been fought were a small group of lawyers in the White House who believed the President should not be constrained by multilateralism or international law. Even before the wholesale use of torture became the norm and detainees were stripped of their legal rights, the Bush administration had refused to be part of the International Criminal Court Treaty, the Anti-Ballistic Missile Treaty and the Kyoto Protocol, so their course was set. But the real basis of what happened pre-dated Bush and Cheney and the neo cons and that was the idea of American exceptionalism, based on the belief that America is different because its nationhood is not defined by history but by certain values such as egalitarianism, individualism, laissez faire and popularism. These things are supposed to give America special status in the world. This idea of exceptionalism is only a heartbeat away from Hitler's belief in a master race and carries with it only priviliges and no responsibilities which is why it's so destructive. This idea also carries with it a delusion of superiority. This is what allowed America to invade or bomb or overthrow democratically elected governments in : Argentina, Belize, Bolivia, Brazil, Chile, Columbia, Cuba, Ecuador, El Salvador, French Guiana, Grenada, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, Surinam, Uruguay and most recently Venezuala. The first was Guatemala in 1950 but President Chavez was kidnapped relatively recently during an American/CIA backed coup and was only saved because the poor came out into the streets and the army sided with the people and not those who had carried out the coup. The secrecy with which the U.S. military's legal framework was altered to give the President almost unlimited powers bothered both the Navy's Judge Advocate, Rear Admiral Don Guter and the Army's Judge Advocate, Major General Tom Romig. Their input to the process was zero. They were not consulted and were simply shown the finished product. The Judge Advocates believed the new laws denied terrorism detainees any semblance of due process. One former top military official said that under the new laws, 'The power of the Presidency was viewed as being unlimited. I'm sure that's an argument that despots and dictators all over the world would like to make.' Another official described his dismay when he heard John Yoo talking about the American Indians as the model for their current enemy : 'They were not really a state, they were a stateless enemy that we were at war with. I thought: that was the 19th century practice of law; this is the 21st century.' The war in Iraq is the logical outcome of this belief system, the same belief system which led America to attempt to overthrow 50 foreign governments since 1945 and allowed them or their surrogates (such as Pinochet) to torture or kill unarmed people who had committed no crime purely on the basis of their nationality or their political beliefs. Abu Ghraib and Guantanomo Bay are not aberrations: they are the inevitable outcome of fanatical reactionaries bringing in undemocratic laws and America's long-held belief in its own divinity. Those whom the gods wish to destroy they first make proud.

I just read the DoJ letter and my conscience was shocked by the fact that it looks like the US Supreme Court already has sanctioned the kind of intent based/slippery slope/relativistic reasoning rightly condemned in the NY Times article. What's the legal eagle take on this excerpt:

"The Supreme Court has recognized in weighing those circumstances the nature and importance of the government interest implicated. See id. at 846. Because the Government has a stronger interest in preventing a future terrorist attack than in collecting evidence about past criminal activities,

the identity and information possessed by a detainee could be relevant to that analysis. See, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("[N]o governmental interest is more compelling than the security of the Nation."); cf Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (emphasizing that "special arguments might be made for forms of preventive detention and for heightened

deference to the judgments of the political branches with respect to matters of national security" and "terrorism")." [end]

http://www.hud.gov/news/speeches/presremarks.cfm

THE PRESIDENT: I know it's going to be hard for some in Congress to give up a little power here and there, but I think it's going to happen.

[...] (Applause.)

- - The President, June 18, 2002

(Outstanding post, btw)

Hasn't the choice already been made? You point to it yourself: Empire is the name of the game; the trappings of a Republic are just for show. Most Americans don't much care.

What difference does it make for most of them? Very little in the short term; tremendously over the long term. But with everything going to perdition, there are -- and will always be -- far more immediate concerns to worry about.

Let's consider the examples of empires that have reverted to republics... how did they get there? The most obvious example in our lifetimes is the Soviet Union. What can we learn from that example?

(One of the lessons of the Soviet example is that significant social, political, and economic change does not necessarily happen in minor increments, and it does not necessarily require violent overthrow and revolution.)

But the state must come to the point of utter rot and corruption, financial decline, military stalemate. It helps to have an overseas goad.

An Emperor/Dictator/President must have a realist perspective on the course of events and must care more for the survival of the People than the survival of the State and its Empire.

The People must assert their inherent sovereignty.

We're partway there, but not nearly close enough to restoring the United States as a self-governing constitutional republic.

Observing the formalities of the Republic that's gone may be sufficient for some time to come. Certainly the Romans kept up the formalities of their lost republic for hundreds of years after Augustus.

Given the fact that our entire government, regardless of party, appears to be devoted to the Imperial Pretensions so vividly displayed by the Bush regime, and the people are for the most part apathetic about it, it's unlikely, though not impossible, that a popular movement to restore the republic (basically what the Dean campaign in 2004 was about) will get very far.

But ya never know.

Really liked your summary, though!