Adam Serwer tries to strike an optimistic note:
While the Obama administration's embrace of the Imperial Presidency in terms of actual policy has been near total, there are important legal technicalities that leave the whole construction vulnerable. Namely, that the Obama administration has said that these powers stem from Congress, they're not inherent to the executive branch. They come from Congress passing legislation like the Authorization to Use Military Force.
That seems like a pointless distinction at the moment. But I don't think it will be ultimately. Impunity for lawlessness in matters of national security won't end through popular means, because scaring people is easy and policies that project "toughness" against a mysterious and frightening ethnic other are politically effective. But eventually the executive branch will do something to infringe on the priorities or prerogatives of one of the other co-equal branches in a manner that provokes a confrontation.
I think that's fair. Panetta is not Addington. The Straussian worship of the dictator concealed within democracy is not part of Obama's mindset. And there is obviously a pragmatic defense of not launching war crime investigations at a time when the administration is already beset with overwhelming problems at home and abroad. Torture, moreover, is no more.
And yet. Aggressively trying to prevent torture victims from having their day in court merely using unclassified evidence is active complicity in the war crimes of the past. And such complicity is itself a war crime. Either we live under the rule of law and the Geneva Conventions, or we don't. And when Obama says we don't - as he unmistakably is - the precedent he is setting all but ensures that torture will come again, that there will never be consequences for it, and that the national security state can cloak itself in such a way that the citizenry has no way of penetrating its power. Bush and Cheney remain the real culprits here; but watching Obama essentially surrendering to their trap is a betrayal of a core rationale for his candidacy.
The institution of torture as a legitimate government tool was a deeper attack on the America idea than 9/11. The legitimation of it by a successor president compounds this in a way that is now, one fears, irreversible. We have tested the rule of law in this country and it has failed.
With great courage and clarity, the Obamaites could have cut this Gordian knot; instead they tightened it. And torturers across the world - far, far worse than Bush or Cheney - are now smiling. See? They will say. They got America to endorse their methods. They even got Obama's America to protect torturers. And so the light of human freedom that once shone from here across the globe and penetrated even the darkest cell of the worst tyranny has been close to snuffed out. Some dissident somewhere in the world now knows that there is no place on earth where this cannot happen. Some victim now understands that even America can do this and will make sure it gets away with it.
How do you put a pragmatic price on that?