Bazelon’s piece gets right to the heart of the issue:
If you want to believe that the government does its grim best to fight terrorists, and you’re inclined to think that their dirty tactics justify some ruthlessness on our part, then maybe a few killings of bad guys in faraway lands doesn’t bother you much. But there are a couple of unsettling implications here that are so obvious that it’s amazing Holder thinks he need not address them. The first is that if the Obama administration claims this kind of extra-judicial power for a few cases, what’s to stop the next president from expanding upon it—and citing this step as precedent for taking others that Obama wouldn’t countenance? And the second is that when the executive branch won’t release the legal memos that underlie its decision-making, we’re blocked from evaluating how strong or weak the arguments are. When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it’s crucial for Holder and his lawyers to explain how and why. Instead, we’re being asked to take the wisdom of the president and his national security apparatus for granted.
The key related issue is that the conflict with Al-Qaeda is more than just police work, but it doesn’t represent a traditional battlefield either. In implicitly leading hard on the AUMF, the administration seems to be argue that it’s both impractical and unnecessary for their to be judicial oversight for actions against Al-Qaeda, but (to put it mildly) this is far from obvious.