An Important Point Well Made

Andrew Sullivan, at the peak of his form, writes about Obama's shameful (indeed, criminal) embracing of the Bushian violations of civil liberties and claims of untrammeled executive power, in particular those resulting from the Obama administration's attempts to protect the various criminals from the Bush regime from the consequences of their crimes (becoming, morally if not legally, accessories after the fact to them). I think that Sullivan's essay, although narrowly focused on Obama's invocation of the state secrets doctrine to protect the war criminals of the Bush administration, can be applied to the larger set of issues around Obama's Bush-like assertions of executive power, his failure to restore civil liberties to their rightful level, and so forth.

I think that, of all Obama's manifold failings and disappointments, it is this broad area that is arguably the most disappointing, since none of the standard excuses cover it. Unlike the war in Afghanistan or Obama's Quixotic quest for bipartisanship with a foaming-mad Republican party, Obama's embrace of Bushian executive overreach was not part of his campaign. (I don't think this is nearly the excuse that people think it is -- wrong is still wrong, even if it is promised in advance -- but it's a common excuse for his escalation of the Afghanistan war and his utterly idiotic, repeated willingness to be the Charlie Brown to the Republican's Lucy with the football.) Indeed, Obama's actions in this area violate both specific promises and the general spirit of his campaign -- unlike other areas, here he is simply traducing the campaign he ran.

And unlike the weakness of the health care bill, the utter (and predicted at the time) inadequacy of the stimulus, the failures on climate change and chard-check and numerous other priorities, etc, it can't be blamed on the (admittedly blameworthy) failures of Congress. Here, Obama could do otherwise; he has just chosen not to.

Yet, like all of those, it is of the very highest importance.

It wasn't even politically smart (not that this would have been any excuse, even if it were true); the Tea Partiers hate him anyway, because he's liberal and (for some) black. And, given its centrality to the liberal critique of Bush, I have to wonder how much capitulation on this constellation of issues alone contributed to liberal disenchantment with Obama. For my own part, I would find it easier to accept the excuses in other areas if he wasn't so manifestly betraying American values, and his own campaign, in this one. The excuses would seem more plausible, for one thing: if he's betraying liberal ideals in the one area where neither consistency, long-standing temperament nor congressional malfeasance can be blamed, it seems less plausible that it is only those things that contribute to his failures in other areas, whereas if he were standing firm in the area where he had genuine power to act independently, and where he had clearly promised the contrary in his campaign, it would seem like his other failings were more genuinely the result of outside agency.

Here's the money quote (to use Sullivan's own term) from his essay:

In 2008, many of us supported Obama in part because he seemed to be a rare candidate who understood the awful potential of government-sanctioned torture to harm us in the war against Jihadism, to eviscerate core American values, and to empower the executive to new and unassailable heights in ways the Founders would have been horrified by....

Yes, torture ended. That matters a huge amount. He will always deserve credit for that. Of course, I have to trust him on this, since there is precious little way for someone outside the government to test this or know this for sure....

Yes war requires some secrecy. But Obama has gone much further than this now. The cloak of secrecy he is invoking is not protecting national security but protecting war crimes. And this is now inescapably his cloak. He is therefore a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more. This won't happen in my lifetime, barring a miracle. Because Obama was a test case. If an outsider like him, if a constitutional scholar like him, at a pivotal moment for accountability like the last two years, cannot hold American torturers to account, there is simply no accountability for American torture. When the CIA actually rehires as a contractor someone who held a power-drill against the skull of a prisoner, you know that change from within this system is impossible. The system is too powerful. It protects itself. It makes a mockery of the rule of law. It doesn't only allow torture; it rewards it.

The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that....

And this means almost certainly that torture will return. The GOP base loves it, as long as it is done against people with dark skin and funny names in places they can look away from. And they know now something they didn't know in 2008. They will always get away with it. Even a liberal Democrat will protect you for ever with a golden shield that creates two classes of people in this country: one above the law - even a law as profound as that against torture - and those outside the government obliged to obey it.

The entire essay is here.