George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.
But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.
The truth of this was borne out in the early days of Barack Obama’s presidency. At his confirmation hearing to be head of the CIA, Leon Panetta said that “extraordinary rendition”—the practice of sending prisoners to foreign countries—was a tool he meant to retain.1 Obama’s nominee for solicitor general, Elena Kagan, told Congress that she agreed with John Yoo’s claim that a terrorist captured anywhere should be subject to “battlefield law.”2 On the first opportunity to abort trial proceedings by invoking “state secrets”—the policy based on the faulty Reynolds case—Obama’s attorney gen- eral, Eric Holder, did so.3 Obama refused to release photographs of “enhanced interrogation.” The CIA had earlier (illegally) destroyed ninety-two videotapes of such interrogations—and Obama refused to release documents describing the tapes.4
The President said that past official crimes would not be investigated—certainly not for prosecution, and not even by an impartial “truth commission” just trying to establish a record. He said, on the contrary, that detainees might be tried in “military tribunals.” When the British government, trying a terrorist suspect, decided to use some American documents shared with the British government, Obama’s attorney general pressured it not to do so. Most important, perhaps, was the new president’s desire to end the nation-building in Iraq while substituting a long-term nation-building effort in Afghanistan, run by a government corrupted by drug trafficking and not susceptible to our remolding.
Even in areas outside national security, the Obama administration quickly came to resemble Bush’s.…
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