Greenwald recently cited this post by Jack Goldsmith, claiming that the latter has shown that “an Obama presidency will strengthen these policies far more than a Romney presidency could have.” (This echoes the argument that Henry Farrell made when speculating that withdrawing support from Obama might improve things in the long run.) Here’s the key passage:
One important consequence of President Obama’s re-election will be the further entrenchment, and legitimation, of the basic counterterrorism policies that Obama continued, with tweaks, from the late Bush administration. We will have four more years of a Democratic president presiding over military detention without trial, military commission trials (at least for the 9/11 conspirators, if not for more), broad warrantless surveillance, drone strikes around the globe, and covert war more generally. These policies will of course be scrutinized by the many watchers of the presidency. But they will receive less pushback than they would have received under a republican president. Not only does the public generally trust the former constitutional law professor and civil liberties champion more than a republican president to carry out these policies (this is the Nixon going to China phenomenon). But in addition, many on the left (in Congress and the NGO community, and perhaps the press) who might otherwise be uncomfortable with these policies will give President Obama a freer hand than they would a republican president. The paradoxical bottom line: aggressive counterterrorism policies will, as a general matter, become more entrenched as a result of Obama’s election, compared to a Romney presidency.
Does this argument make any sense? Well, no. The key question here is where exactly the greater “pushback” against a Republican administration is supposed to be coming from. Certainly, as our experience with the Bush administration makes clear, not from Congress, whatever the partisan configuration. Not from a Department of Justice headed by someone likely to be worse than Goldsmith (let alone Holder.) The more Republicans confirmed to the federal courts, the less likely judicial pushback — which is already unlikely — will be.
So Goldsmith seems to mean that there would be a greater degree of pushback from left-wing civil libertarians. I agree that the level of criticism from these quarters would be ramped up under a Romney administration. But since even the greater degree of criticism under Bush was wholly ineffectual, this is neither here nor there. Nobody in a position to stop the policies would engage in any pushback against a Romney administration, so we’d get the same stuff as Obama, with perhaps arguments about the president having greater inherent powers and with more arbitrary detention and torture thrown in (all being supervised by wingnuts in the DOJ and increasing numbers of neoconfederates on the federal courts.) I’m not really seeing the benefits for civil libertarians here.
The argument, essentially, is like saying that Nader throwing the election to Bush was a good thing, because without that we wouldn’t have had the real but ineffectual movement against the Iraq War. Maybe it’s me, but I’d rather skip the middleman and not have the war. Opposition isn’t an end in itself; it’s supposed to effectuate better policies.