One of the great surprises to me, through the Hamdi, Padilla, and Guantanamo arguments, is just what you describe: The executive branch has staked out such an extraordinarily sweeping position. No middle ground here: simply an insistence that absolutely no judicial second-guessing of the president’s decisions about what constitutes an enemy is acceptable. Not some due process. (And several of the justices at oral argument showed they might have given the executive branch substantial leeway if it offered the bad guys even just a tiny bit of judicial process.) None.
Your quote from Nixon sums it up perfectly. In that sense, the torture memo shouldn’t have been a surprise to any of us. Of course the Bush position would have been that any action taken by the president in intrinsically lawful. That’s been the position all along.
While we are citing Neal Katyal, I must parrot a nice argument he recently made to me: The other “check” on the president, aside from the judicial branch, is the voter. But the two towers of an all-powerful executive and an all-secretive executive make certain that we are as clueless as the judges are impotent.
Which brings us directly to Cheney v. U.S. District Court—a decision that reads like a Civil Procedure final. If you can get past all the procedural stuff, the court ultimately just recognized that vice presidents are Special. Confidentiality and open communications among the president and his advisers matters. And even though the case was spiked back to the lower court, and not decided on its merits, its political significance is deader than a duck.
Do you think this was a “dodge” the way people contend that the decision in the Pledge of Allegiance case was a dodge? And what do you think of their decision to distinguish Nixon’s case as a criminal one?