The first days of the Trump Administration have underscored the role that the judiciary could play in blocking the executive branch. It also highlights the importance of securing the appointment of a compliant set of jurists, particularly those who are committed to presidential supremacy.

The Gorsuch nomination demonstrates that the optimal judicial nominee is one who shares a key (mistaken)  belief--namely, the view that the president's inherent power to interpret his constitutional responsibilities as he sees fit--has been tested under fire, while serving in the trenches with the executive branch's legal advisers. In the course of that service, those who find the Department of Justice's defences of indefinite arbitrary detention, torture, and extrajudicial assassination distasteful can be encouraged to find more lucrative work in private practice.

This winnowing process leaves behind a hardened cadre of true believers willing to work on a government salary within the Beltway in search of a great reward --of the type extended to now-Justice Alito and soon-to-be-Justice Gorsuch. Their prayers may soon be answered, as President Trump looks to fill a record number of vacancies in the federal judiciary. In doing so, he may follow and expand this well-trod path for the most loyal zealots.

While the executive branch now has firm control over the Supreme Court and the D.C. Circuit (which is of particular importance since virtually all cases brought against senior officials are under its purview), the federal courts scattered across the land are capable of damaging the executive's agenda. While their rulings are subject to being reversed, they can stall the agenda and score rhetorical blows, which are particularly damaging to an Administration struggling for momentum and credibility.

It is no coincidence that the first serious challenge to the Trump Administration's use of executive orders came from the Ninth Circuit, which has historically been controlled by the nation's most liberal jurists. Washington v. Trump shows the executive sees this as a problem to be addressed. Indeed, it has understood this for some time. The only defence of Trump's immigration orders comes in the form of a dissent from the Ninth Circuit's decision to decline en banc review of a panel's review of the decision to grant the temporary restraining order barring access to refugees and immigrants from seven specified countries. The author of this very infrequent sort of dissent (which sketched out an argument that the Supreme Court should reverse the Ninth Circuit's ruling) was Judge Jay Bybee.

Jay Bybee was the chief of the legal service for the executive branch --formally known as the Assistant Attorney General for the Office of Legal Counsel, Department of Justice (the "OLC"). In that capacity, he signed the "torture memos" that specifically authorized waterboarding, along with other forms of abuse that had been recognized to be war crimes by such authorities as the International Military Tribunal for the Far East. Contemporary observers (such as the general counsel of the US Navy) criticized the opinion for its "catastrophically poor legal reasoning" about the legality of torture, but the Bush Administration attempted to destroy all the legal memoranda that criticized Bybee's conclusions.

Bybee obtained his position at the head of the OLC after serving for five years in a sensitive position at the Office of Legal Policy of the Department of Justice and then spending ten years in academia. At the time of his appointment to the Ninth Circuit, Bybee was fifty years old, which put him in the position of being able to influence that court's jurisprudence for decades to come.

Bybee's appointment put his colleagues on the court in a difficult position. They were required to extend him professional courtesies even after a investigation by the Office of Professional Responsibility released a report concluding that Bybee had committed "professional misconduct" by writing the torture memos. They also were forced to adjudicate appeals of a lawsuit suing him and other officials brought by the victims of the torture he approved, which were decided while Bybee was the subject of a war crimes investigation in Spain. Bybee weathered all of these storms, and can now look forward to more of his colleagues from the Bush Administration's legal offices joining him on the bench, as they are the pool from which the Trump Administration's judicial nominees will be drawn.

A recent leak from the office of the White House Counsel revealed that Trump has turned his attention to filling what one NGO called the "alarmingly high number" of federal judicial vacancies. The nomination crisis created by the Republicans during the Obama Administration (exemplified by the unprecedented failure to consider the nomination of Judge Merrick Garland to the Supreme Court) had given Trump an unparalleled opportunity to reshape the federal courts in his own image. Reportedly, Trump is looking at young conservative law professors in their late 30s and early 40s, who likely served in the Bush Administration as well. In short, Bybee and Gorsuch's subordinates and accomplices to the executive branch's atrocities.

Soon these jurists will likely sit in judgment on challenges to the renewal of "war on terror" programs that closely resemble those that they crafted and defended. Even the temporary and rhetorical judicial rebukes to executive illegality will then cease. It is difficult to imagine how it will be challenged in that event; with the doors to the courthouses barred, they will likely take place in the streets, for better or for worse.

Today Senator Chuck Schumer announced the Democratic Party would attempt to block the confirmation of Judge Neil Gorsuch. Schumer argued that Gorsuch favours corporate interests over the "little guy", pointing in particular to a dissenting opinion in the "frozen trucker" case. In that dissent, Gorsuch argued that a driver who had not waited beside a vehicle awaiting repairs was ineligible for protection from being fired. Alluding to what he believed was Gorsuch's deficit of compassion, Schumer argued: "We do not want judges with ice water in their veins."

There are many good reasons to oppose Gorsuch's confirmation. That said, it is remarkable that the most troubling evidence has not received more attention. Gorsuch is an executive branch loyalist. He was willing to accept any argument that the President's prerogatives are unlimited, even when this allegedly includes the power to order torture.

Gorsuch, like almost every Republican nominee of the post-Watergate era, was nominated after extensive service in sensitive and highly political positions within the executive branch. In his case, this included service in the Department of Justice's Office of Legal Counsel, where the most extreme claims of executive power were developed during the 'war on terror'. Gorsuch joined that office after it had become clear that its opinions had helped create a dystopian parallel legal order. Multiple scandals at Guantanamo Bay and Abu Graib had already exposed the horrific consequences of enabling an executive that believed it had the constitutional authority to approve indefinite arbitrary detention, torture, and extrajudicial killing.

While at the OLC, Gorsuch fought to keep the torture program secret and defended the executive from those who would hold it accountable, including from Khalid El-Masri.  El-Masri was a German citizen kidnapped by the CIA owing to a mistaken identification; after being flown to a black site in Afghanistan, tortured, and sodomized, he sued the United States.  Gorsuch blocked the lawsuit by asserting the state secrets privilege. (El-Masri ultimately proved his claims in the European Court of Human Rights). For derailing El-Masri's lawsuit, Gorsuch was praised by his bosses in the executive branch for "protecting the ability of the institution of the Presidency" --in other words, for maintaining the unaccountability and impunity of an executive that was determined to commit gross violations of domestic and international law.

Gorsuch also served as a cheerleader for the Guantanamo Bay detention camp, writing to its commander in 2005 that "your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of . . . [which] makes my job of helping to defend it before the courts all the easier." This was at the height of the torture program; a year later, three detainees would be tortured to death at an off-the-books black site at GITMO known as "Camp No."

Gorsuch attempted to unconstitutionally deprive courts of the ability to review petitions from GITMO, by inserting jurisdiction-stripping provisions into the Detainee Treatment Act.  Afterwards, he crowed that "The Administration's victory is not well known but shouldn't be understated." (Fortunately, these provisions were later struck down by the Supreme Court).  Conversely, Gorsuch lamented the Act's restrictions on torture. He argued that Senator John McCain's scruples--based on his experiences being tortured as a prisoner of war--were trivial, writing "Did torture elicit useful intel? Yes." He then drafted a signing statement that indicated that the executive reserved the right to ignore the torture ban; it contained the breathtaking claim that courts could not review the actions of the Commander-in-Chief, "consistent with the constitutional limitations on the judicial power."  In plain English, Gorsuch argued that the President has the power to ignore the courts.

While other lawyers resigned rather than become accomplices to torture, Gorsuch relished his opportunity to contribute. Jameel Jaffer (former Deputy Director of the ACLU and author of a book on the OLC's "torture memos") noted that "The documents provided by the Justice Department to the Committee suggest that Judge Gorsuch was comfortable with the policies and with the Bush administration’s defenses of them, and, indeed, that it was challenges to the policies that troubled him." Indeed, Gorsuch concurred that it was "surprising that more has not been made" of the release of the names of the law firms that had provided free legal assistance to the Guantanamo Bay detainees (or, as he and his colleagues put it "help[ing] alleged terrorists"), many of whom were later proven by those firms to be wholly innocent.

While Gorsuch has managed to avoid providing any indication of how he would rule on important issues like health care and reproductive rights, there can be no doubt about how he would rule on challenges to presidential powers. While he will blithely concede that "no man is above the law", for years he attempted to create a legal order in which the president--alone--had the power to determine whether his actions were legal and constitutional. As this included the ability to authorize torture, Gorsuch, like the six Bush Administration officials who were indicted by Judge Balthasar Garzon, should not be seated on the bench. He should be standing at the bar of justice as a defendant.  Rather than focusing on the ice water in his veins, Senate Democrats should be paying more attention to the blood on his hands.

Guantánamo Bay has fewer detainees in the Trump Administration than it did during his predecessors’ tenure –at least, until such time as the President makes good on his promise to “load it up with some bad dudes”.  Despite this, it has never been more sinister, or at least more Kafkaesque.  Camp Justice, where the military commissions sit, is gearing up for more mockery.

The executive branch has worked hard to get to this stage, against significant resistance.  In 2006, the Supreme Court ruled that Salim Hamdan’s trial by military commission could not proceed, owing in part to its failure to conform to the Geneva Conventions.  Accordingly, if the Bush Administration had proceeded under the existing regime, it might have been guilty of war crimes.  However, Congress stepped in twice to attempt to provide a legal basis for these tribunals, and President Obama signed the Military Commissions Act of 2009, which revived the charges against such detainees as Omar Khadr, a Canadian who had been arrested as a fifteen year old, brought to Afghanistan by his father. 

Khadr was put on trial for his life under conditions that were repeatedly denounced by international observers: he was denied exculpatory evidence and access to the evidence against him (such as it was: the tribunal explicitly allowed the introduction of hearsay evidence and anonymous witnesses for the prosecution).  A number of military officials were barred from participating after attempting to exercise undue command influence, and prosecution witnesses were withdrawn in order to keep details of the torture program secret, despite the fact that evidence obtained under “enhanced interrogation” is explicitly permitted.

After numerous failures of this sort, the Pentagon is determined to proceed against its most hated detainees, the same men that they subjected to the worst forms of torture, including mock execution, a month of confinement in a coffin-sized box, and sodomy.  Unfortunately, it appears that this torture had destroyed these detainees’ minds: one of those alleged “masterminds” of terrorists attacks about to be tried was described as “the dumbest terrorist I ever met” by the CIA’s Director of Operations, while the FBI’s leading al-Qaeda specialist said another was “insane, certifiable, split personality.” Dr. Sondra Crosby described another high value detainee (Abd al Rashim al Nashiri) as having been “irreversibly damaged by torture that was unusually cruel and designed to break him”, while Abu Zubaydah, who lost an eye and suffered brain damage under torture, “cannot picture his mother’s face or recall his father’s name.”

Numerous American politicians have argued that prisoners cannot be released—even if they were factually innocent—because they have been radicalized by their treatment at GITMO; they hate America owing to being tortured by Americans.  One Republican staffer said that “whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter.”  But there is substantial evidence that many detainees were not radicals when they got there.  In addition to clear cases of mistaken identity (including Afghans who happened to have the same name as terrorism suspects) there were numerous teenagers and even children among the detained.  Mohammed el Gharani was fourteen when he arrived at GITMO; Mohamed Jawad may have been as young as twelve at the time of his detention. 

There is also no compelling evidence that innocent detainees nurse burning hatred towards their captors.  Mohamedou Slahi endured the worst forms of torture during his fourteen year detention without charge; after his release he noted that “Anger is very painful in the heart.  So why should I be angry? Why should I pay twice?” He and his lawyers told 60 Minutes that he “forgives” and he “loves Americans”, as many--including his dauntless lawyer--supported him for years.  It is impossible to read The Guantanamo Diaries or see his smiling face and believe that he has become the racist caricature that sustains the belief that the detainees are too dangerous to release.  The same is true of Omar Khadr, who demonstrated his moral superiority to his torturers in Guantanamo’s Child, a remarkably moving documentary film.

It is possible that the flood of sympathy towards Slahi, Khadr and others has motivated the Administration and the Pentagon to stage a travesty of justice involving prisoners it tortured past the point of madness.  These are not only “show trials” in the sense of being designed to produce propaganda; they are also not true trials because they are heads-I-win-tails-you-lose propositions.  The detainees will likely be executed if found guilty, but if found not guilty, they will not be released.  This is the reason why they have been labelled “forever prisoners.”

In 2011, the Obama Administration transferred Khalid Sheikh Mohammed from the civilian justice system back to the GITMO military commissions.  When the alleged mastermind of the 9/11 attacks was arrested in Pakistan, he was photographed wearing western clothing and a short mustache.  When he appeared before the military commission in 2012, on his head he wore a shemagh wound like a turban and a white bisht worn like a hooded cloak.  The commission later gave him the right to wear a camouflage vest.  This, in combination with his flowing salt-and-pepper beard, created a striking similarity to the iconic depiction of Osama bin Laden. Kangaroo court convictions of detainees tortured into insanity because they resemble hate figures would be a new low for the United States.  Brigadier General John G. Baker—chief defense counsel for the detainees facing military commissions, provided this apt analysis:

“Justice Jackson said in his opening argument at Nuremberg: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.” 

It appears that the poison is now spreading through the veins of the American body politic.  When the symptoms manifest, they may prove lethal to its constitution.  

Lawyers from the Department of Justice filed motions last week to prevent CIA Deputy Director Gina Haspel and other top officials from being forced to testify about the development of torture programs at Guantánamo Bay and various black sites. 

The lawsuit brought by the next of kin of a man killed in a CIA secret prison and others who were tortured was brought against two military psychologists, James Earl Mitchell and James “Bruce” Jessen.  This was compensation for developing a program described by the former acting General Counsel of the CIA as “sadistic and terrifying”, and which violated the laws of war and the Convention Against Torture. 

Mitchell Jessen & Associates received $81 million to develop the program, which was reverse-engineered for the military’s Survival, Evasion, Resistance, and Escape training, where pilots and others learned to resist interrogation under torture, primarily in the forms administered by America’s enemies during the Cold War and the Second World War. 

Any interrogation program developed from these techniques was certain to produce false confessions; numerous Americans--including Senator John McCain—said so.  Conversely, in the early days of GITMO, FBI interrogators complained that every time they were successful in building rapport with detainees (a process that is critical to obtaining truthful confessions) “the military would step in” and derail that process. 

Leaked memoranda confirmed that this was because Vice President Cheney and Secretary of Defense Donald Rumsfeld were determined to obtain confessions that implicated Iraq in the 9/11 attacks –which was entirely false.  This justified the creation of an interrogation that annulled any possibility of true confessions, since they were swamped by the false confessions that detainees would constantly produce in attempts to stop the torture.  It led to numerous wild goose chases that depleted the limited resources of the FBI.

Mohamedou Slahi, who was held for fourteen years at GITMO recently recounted on 60 Minutes that “they broke me. I told . . . the boss of my team, ‘You write anything and I sign it.” On that basis, Slahi confessed to a nonexistent plan to blow up the CN Tower in Toronto.  This was so blatantly untrue that the man charged with prosecuting Slahi before a military tribunal chose instead to resign.

While Slahi was later released, “high-value” detainees who will never see the light of day were subjected to considerably worse treatment.  Abu Zubayadah was subjected to waterboarding 83 times in a single month at black sites in Thailand supervised by Gina Haspel.  This technique, which involves actual asphyxiation and not merely simulated drowning, was the basis for the prosecution of numerous Japanese war criminals tried by the American authorities after the Second World War.  Zubaydah was later deemed not to have any useful intelligence. 

President Bush used the outlandish confessions obtained by torture (including that an Al-Qaeda sleeper cell would detonate a nuclear bomb in Europe were Osama bin Laden to be captured) to justify the torture program that Mitchell and Jessen sold to the Pentagon. Their work was also essential to sustaining the drive for war that allowed the United States to justify the spending of trillions of dollars (the Iraq War alone cost $2.7 trillion, which is almost three million expenditures of a million dollars) and the loss of hundreds of thousands of lives. 

The lawsuit brought against them is essential to ensuring that this will not happen again.  Mitchell and Jessen have never served a day in prison, nor have they been forced to return the $81 million the Pentagon paid them.  The CIA officials who provided the top-level oversight of torture were brought back into the Trump Administration.   Haspel was also responsible for the destruction of evidence of the CIA torture program, an action condemned by the Senate Intelligence Committee.

In attempting to stop Haspel from being deposed in the lawsuit, the Trump Administration has asserted the State Secret Privilege.  In effect, this is an admission that she possesses information that would put the national security of the United States at risk.  Is this because she was appointed in order to revive a program designed to produce false confessions?  Trump has floated the possibility of reviving torture programs, although he has yet to do so. 

Trump’s appointment of Haspel to a position of great responsibility (which pleased hardliners on Syrian intervention, such as Clinton partisan and former Deputy CIA Director Michael Morell), which occurred even as her testimony was sought in the torture lawsuits, is the clearest indication yet of the possibility that the Trump Administration will continue the path of endless war on false premises in the Middle East, which led Bush to a quagmire (in Iraq) and Obama to create devastation (in Libya).  Nothing would be more dangerous to the rule of law, and potentially more useful to the erection of a durable Perónist regime in the United States.

The Trump wiretapping controversy has drawn attention away from the fact that President Trump is now in control of the intelligence surveillance apparatus (or at least, he will be once Dan Coats and all his subordinates are confirmed by the Senate). Trump's concerns with warrantless wiretapping are not principled; he was merely troubled by the fact that before his election, he was the target. As he is on the record as being in favour of renewing the extensive and unaccountable surveillance regime, we should devote some attention to what this will likely entail.

This analysis was made easier by the release by WikiLeaks last week of their "Vault 7" archive of classified documents, which reveal the capabilities developed by the CIA for advanced electronic surveillance. Many headlines have been devoted to the "Weeping Angel" program, which allows for eavesdropping by turning on the microphones of 'smart' televisions, while giving the target the impression that the television is off.

This program particularly disturbing because it calls to mind the telescreens of Orwell's 1984, but it is not significantly different from what Edward Snowden revealed about the National Security Agency's ability to turn on webcams secretly. Vault 7 reveals much more troubling information. Applications that were formerly thought to allow for secure communication can all be bypassed with new techniques that allow access to the kernels of smartphones -- this means that the encryption built into WhatsApp and Whisper is beside the point. The new CIA programs allow them to insert keystroke loggers onto users' iPhones and Android 'phones (BlackBerrys were cracked in 2009), and then upload the record secretly. It also allows for surreptitious uploads of geolocation records and other personal data.

Vault 7 reveals the disturbing proliferation of these tools. The FBI has been given access to these applications suites, which could create issues in law enforcement that would dwarf those created by the use of Stingray 'phone trackers. Additionally, the CIA admits that hackers, presumably from other nations, manged to obtain copies of the code for many of these applications, creating an arms race between foreign intelligence services, and allowing for ever more sophisticated computer crime (this follows the theft of very sophisticated malware code from a front for the NSA's Tailored Access Operations (the Equation Group) by an organization known as "The Shadow Brokers."

As concerns have been raised about the possibility that American elections could be "hacked", it is worth noting that the CIA used these techniques to exactly that to foreign nations. Vault 7 reveals that in 2012, the CIA conducted a ten-month operation to secure highly sensitive information on the candidates in the French Presidential Election. This raised eyebrows in the press, particularly as some reporters have speculated that the UMBRAGE program could be used to suggest to the targets of these attacks that they had been committed by other country's intelligence agencies.

There are also indications that the CIA is developing sophisticated cyberwarfare weapons by refining the Shamoon 2 virus, which was used to devastating effect against oil and gas companies Saudi Aramco and RasGas in 2012. (The CIA is developing similar capabilities as the NSA, which recently attempted to use the Stuxnet virus to derail the North Korean nuclear program --it failed, leading to a significant risk of war). Additionally, the CIA was researching ways of hacking and taking over control of passenger vehicles, purportedly as a means of assassination. The risks associated with the proliferation of these programs is virtually unimaginable; the development of these cyberweapons is unspeakably irresponsible.

CIA documents also reveal that mass surveillance is only possible with the collusion of major corporations, who have repeatedly proven themselves willing to assist intelligence agencies in breaching their customers' privacy. Vault 7 reveals that this has hit new heights -- the CIA now consults with a group of tech companies before they decide to reveal their discoveries of major security weaknesses. This is done so to prevent CIA hacking operations from being interrupted. At the same time, consumers are encouraged to believe that state of the art anti-virus/malware software and encryption can keep their information private --something which these companies know to be false. Those conducting mass surveillance rely on that illusion of security.

Most disturbingly, the executive branch writes the rules governing this surveillance, and rewrite them whenever it is necessary to expand its scope. The legislative oversight mandated by the rule of law is nonexistent. When Congress attempted to investigate the CIA's torture program, the Agency hacked the computers of Senate Intelligence Committee, but the Department of Justice (an executive branch agency) decided not to prosecute its colleagues in the intelligence community, who report to the same president at the end of the day. When Congress accepted this, and also failed to pursue Director of National Intelligence James Clapper for lying about dragnet surveillance on Americans, it set the stage for all the abuses that followed. Unfortunately, the Trump Administration will likely set a new bar for horrifying abuses of this surveillance technology.

Last week, President Trump sensationally alleged that his campaign had been subjected wiretapping by the Obama Administration. BBC News reported that Trump campaign officials were targets of an inter-agency task force, likely investigating campaign finance and lobbying rule violations; one of those officials was Paul Manafort, a lobbyist and consultant serving as the chairman of the Trump campaign. (John Podesta, the chair of the Clinton campaign, was also the chairman of a lobbying firm; his brother and associate is a registered foreign agent for the Kingdom of Saudi Arabia, among other countries).

BBC revealed that the Foreign Intelligence Surveillance Court declined to issue a warrant that would authorize the surveillance of these officials. This is highly unusual, given that court's practice of approving virtually every application of that type (with a historical rejection rate of 0.03%). It should be noted that the warrant application did not allege there was probable cause these officials committed a crime. However, the denial was likely predicated on the court's fear of "reverse targeting", in which information obtained pursuant to exemptions that apply only to foreign intelligence gathering is later used in criminal prosecutions, contrary to the Fourth Amendment.

The subsequent (and unverified) allegations that led to Trump's outburst raise the possibility that after this warrant application was denied, the National Security Agency concluded that they did not need a warrant owing to the executive branch's interpretation of the Foreign Intelligence Surveillance Act, which allows the President, through the Attorney-General, to authorize foreign intelligence surveillance ostensibly aimed at foreign entities or involving only business records. However, an administration's wiretapping of the other party's presidential campaign does raise the the specter of the Watergate break-in, when President Nixon sent his "special investigative unit" to bug the offices of the Democratic National Committee looking for "dirt" on George McGovern's campaign. Forty-four years later, this sort of effort would no longer require burglary, only hacking.

There is no scholarly consensus on the constitutionality of these procedures, nor is their any agreement in the executive branch on the boundaries of the permissible use of information obtained in this manner. However, in its last days, the Obama Administration loosened the already minimal restrictions, to allow the NSA (which conducts most foreign intelligence surveillance) to share what it obtains with other agencies (including law enforcement agencies like the Federal Bureau of Investigation) without first stripping out information on American citizens. The ACLU and other civil liberties organizations flagged this as extremely dangerous, as it magnifies the danger of reverse targeting exponentially.

Amidst calls for a Special Prosecutor (who would not be independent, as I discussed in the last blog post) to investigate claims of Russian interference in the presidential election, there are now calls to empower him or her to look into the wiretapping allegations. It is likely that any investigation into the alleged misuse of intelligence surveillance will devolve even further into the political mire. Already, the debate is turning on appeals to the credibility of various officials.

Former Director of National Intelligence James Clapper asserted there was no such surveillance of the Trump campaign --his eminent position in the Obama Administration was used to buttress appeals to his credibility, despite the fact that while in that position he lied to Congress about the NSA's warrantless surveillance, and the fact that he was subsequently forced to apologize for this after Wikileaks and Edward Snowden revealed his deception. Supporters of each party also cherry-picked his statements: for instance, Democrats ignored the fact that Clapper attested that there was no evidence of Russian interference in the presidential election.

The fact that these allegations will not lead to a neutral and balanced assessment of foreign intelligence surveillance is troubling. For fifteen years, scholars used this sort of scandal as a worst-case scenario when arguing that the post 9/11 amendments to the Foreign Intelligence Surveillance Act were dangerous to democracy. It allows a president to misuse the NSA in ways that Nixon could only dream about; the politicization of the intelligence community also takes America one step closer to a banana republic.  It should be noted that before the scandal broke, Trump was on the record as an enthusiastic supporter of these surveillance programs.

Of all of Trump's faults, his desire to seek peaceful coexistence with Russia hardly seems the most egregious (except perhaps to hardliners seeking direct military intervention against the Syrian government). FISA's exemptions for intelligence surveillance created a system in which an allegation that a candidate is an agent of a foreign power became the only smear that mattered --because it was the only allegation that would allow for almost limitless surveillance at the executive's discretion.

As a result, many of Trump's democratic opponents are like a drunk looking for his keys under a streetlight: the keys--like Trump's scandals--might be somewhere else, but it's easier to see under the light than to search for what's in the shadows. Searching only where FISA surveillance leads has brought America back to McCarthyism, in which Russia is the enemy of enemies. This is not necessarily bad for the intelligence agencies (or at least for their budgets) but it may not be good for America, or for peace.

President Trump's nominee for the position of Attorney-General, Senator Jeff Sessions, has recused himself from overseeing an investigation into his own comments about meetings with the Russian Ambassador.  As he is obviously the focus of the investigation, there is an obvious conflict of interest and recusal is appropriate.   

The question that remains is whether it is sufficient.  Many observers are withholding judgment until the special prosecutor is chosen.  Recently,  it has been the personal reputation of the official to whom decision making has been delegated that determines whether an investigation is deemed credible.  Sometimes, the inevitable assertions about the chosen investigator's integrity corresponds with popular perceptions about the outcome (for instance, the decision to prosecute "Scooter" Libby for blowing the cover of an officer of the Central Intelligence Agency) while in other investigations, the perception of the impartiality of the investigation has remained in dispute after its conclusion (e.g. FBI Director Comey's decision not to recommend that the Department of Justice seek an indictment against Hillary Clinton for mishandling classified documents).

The reason why the identity of the investigator matters is because these so-called recusals are really only half-recusals -- the official who is operating under the conflict of interest (and/or their superior, the president) continues to maintain ultimate authority over the person they delegate (or whom their delegate chooses, e.g., the special prosecutor who will be chosen by Sessions' Deputy Attorney General, another presidential nominee). At the end of the day, if the special prosecutor has a reporting line that runs to the president, the President can influence the investigation. Even if the investigator really is incorruptible, the President can fire them, and the official who appoints them has a clear incentive to find someone with that reputation but who is in actual fact sensitive to the pressure of termination or other career-ending tactics.

This is exactly what happened when the Watergate investigators came to close to uncovering evidence of President Nixon's wrongdoing, after following a trail that passed through an indictment of Attorney General John Mitchell. Two months after Mitchell's indictment, Nixon commanded his new Attorney-General (and then his Deputy after that official refused) to fire Special Prosecutor Archibald Cox. Ultimately, Cox was fired by Solicitor-General Robert Bork after Nixon promised to reward him with a nomination to the Supreme Court (Bork was in fact nominated for such a position before that corrupt bargain was revealed; after his nomination failed he returned to his lifetime appointment on the seat of the nation's second most influential court, the D.C. Circuit). There is always an executive branch official that will comply with an order to end an investigation.

There was a solution to this problem, and Congress adopted it in 1978. The Ethics in Government Act set up the Office of Independent Counsel, which created a system where the special prosecutor would be selected by a panel of judges and could only be dismissed after a showing of good cause. They would then be empowered to investigate senior executive branch officials (and those involved in presidential election campaigns) with no limitations on the budget or where the investigation might lead.

Unfortunately, that office was abolished in 1999, and replaced with the toothless Office of Special Counsel, which operates under federal regulations that the executive can amend at will, and which also establish that "the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued." The Attorney-General can also terminate the Special Counsel, as was the case in the Saturday Night Massacre.

It is unclear why Congress decided to give the executive back this power. It is particularly unfortunate, as the investigation of Sessions bears substantial similarities to the investigation of another of Nixon's Attorneys-General, Richard Kleindienst, who was ultimately convicted of withholding information from Congress during his confirmation hearings. (That said, there are important differences between the Kleindienst and Sessions allegations, particularly as Sessions was serving as a Senator at the relevant time, which invests him with the immunities created by the Constitution's Speech and Debate Clause).

It is unlikely that the allegations against Sessions will ever receive an adequate appraisal. The abolition of the Office of the Independent Counsel politicizes every investigation of executive branch officials. Instead of discussing the legal standards and the boundaries of executive accountability, the press and public are reduced to discussing the character (or personality, or political affiliation) of the investigators and of those arguing that they exceeded the scope of their authority, as was the case during the Hillary Clinton email controversy. Ultimately, the only decision that the public can make is about whom to trust. This is precisely the kind of argument that a political strongman likes to make, and which the rule of law was designed to pre-empt.

A return to legal norms requires the reconstruction of legal authority. A pastiche of justice merely erodes popular confidence in the possibility of apolitical justice; this is what allows Trump to make more arguments about how all the opposition is merely partisan.