A federal court has upheld on appeal a ruling that telecom companies can receive legal immunity from Congress for participating in the warrantless wiretapping program under George W. Bush.

Who watches the watchmen? That is a question we all have to ask ourselves when we hear of NSA-Private Sector partnerships.

Mind you, it shouldn’t take personal encounters like this for the Administration to realize it was going to look really stupid trying to convict a guy for keeping two unclassified documents in his email archive. But in the same way that it took PJ Crowley asking the President about Bradley Manning, did it take Thomas Drake asking Eric Holder about his own case to make that case to the Administration?

Earlier, we learned that (thanks to Antonin Scalia) the word “suspicion” no longer means what it used to mean.

Now we learn that “protected” doesn’t mean what it used to mean.

As Josh Gerstein reports, the judge in the Thomas Drake case has agreed to let the government protect unclassified information using the Classified Information Procedures Act. But as Drake’s lawyers make clear, the process of substitution is making unclassified information look classified.

While Jane Mayer’s profile on NSA whistleblower Thomas Drake has generated a lot of attention for the way Obama’s DOJ is senselessly prosecuting him, there has been less focus on the key revelation that Drake and others went on the record to reveal in Mayer’s story: that the NSA chose not to integrate the privacy protections from a program called ThinThread into its illegal domestic surveillance program.

The unredacted sections of the Goldsmith Memo do not rely on In re Sealed Case to claim warrantless wiretapping qualifies as a special need, whereas the White Paper does.

The New York Times liberated the specific answer to a question that Russ Feingold asked in March 2009, but which the Department of Justice didn’t respond to until November 2010, when Feingold was a lame duck Senator. At issue were new investigative guidelines Attorney General Michael Mukasey issued in late 2008, on his way out the door, which allowed the FBI to investigate Americans for First Amendment reasons so long as that First Amendment reason was not the only reason they were being investigated.

As I have noted before, there are a number of paragraphs in the May 6, 2004 Goldsmith memo authorizing warrantless wiretapping that appear to be badly overclassified. Not only were many of the same paragraphs printed, almost verbatim, in unclassified fashion, in the White Paper released in January 2006. But many of those paragraphs contain nothing more than discussions of published statute.

As has often been noted, the White Paper the Bush Administration released on January 19, 2006 largely repeats the analysis Jack Goldsmith did in his May 6, 2004 Office of Legal Counsel (OLC) opinion on the warrantless wiretap program. So I decided to compare the two documents.

Not only did such a comparison help me see things in both documents I hadn’t seen before. But there are a number of things that appear in the White Paper but not the unredacted parts of the opinion. Some of this, such as Administration statements after the warrantless wiretap program was exposed in 2005, simply serve as the publicly acceptable discussion of the program.

A standard tactic of the last two Administrations has been to operate in secrecy and then accuse those who have been denied access and information of not having standing to sue over, in this case, wiretapping, because they don’t have evidence that they’ve been targeted. It’s a cynical technique, but a successful one, until now.