It seems unfortunate to me that George Bush’s legacy will leave Obama with countless sophie’s choices where the only way to avoid giving up his precious reasonable moderate image, at least in the eyes of the media, will entail doing genuinely heinous and extremist things. For the first tangible example look to yesterday’s decision to abuse the State Secrets privilege in a torture case. The only justifiable decision here would be to revoke the Bush DoJ’s attempt to use State Secrets to block not only specific evidence but any hearing at all. However, doing so would almost certainly compel a wider investigation and likely criminal charges against former government officials. To avoid being seen as the President who put his last administration on trial Obama must resort to the exact same heinous abuses of power that made the Bush DoJ into a national disgrace.
However, it also seems likely to me that the substantive difference between Obama’s administration and the Bush years will become increasingly evident as time goes on. At the very least, given his past writing, Marty Lederman must be shitting a two story colonial townhouse right now. I have to assume that Lederman and other principled hires at the DoJ will either ensure that decisions like this do not happen again or else he will resign.
I doubt that Marty’s old blog can avoid talking about this decision for much longer, and given their connection to the guy who now has John Yoo’s desk it also seems unlikely that they would write without taking his perspective into account. At the risk of sliding towards Kremlinology I will keep an eye on Balkinization for evidence that principled elements within Obama’s DoJ hope to prevail in steering the administration away from this disastrous and legally indefensible course.
The mood is not happy at Balkinization. The title more or less says it all.