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The Arbitrary Executive, New Occupant


Jo Becker and Scott Shane’s extensive, extremely useful analysis is not entirely without flaws. There’s a strange bit of Green Laternism where Becker and Shane talk about how Holder and Hillary Clinton wanted to lobby Congress but Obama shut them down — with the implication that this might have made a difference — which is pretty silly. I’d listen to counterfactuals it if the bill passed by a vote or two, but the vote was 90-6; the idea that Clinton and Holder using the BULLY PULPIT could have shifted 54 votes is so implausible as to be self-refuting. The subsequent reference to LBJ is also utterly inapposite; giving in on issues where you have no chance of winning to advance other legislative priorities where you might actually have the votes was page 1 in LBJ’s playbook. When evaluating the arbitrary executive, it’s important not to forget that this is how Congress wants it.

It’s also unnecessary, because the article is plenty damning without the Gitmo overreach. Glenn has already highlighted a key takeaway, in which “militant” is given an absurdly broad definition to minimize civilian casualties. (Which, of course, should remind is of Daniel Davies’s dictum that “[g]ood ideas do not need lots of lies told about them in order to gain public acceptance.”) But this is just one example; in many different respects the article is a classic example of the dangers of arbitrary executive power. Every president is convinced that he can be trusted to handle it; and even if a president is more judicious than his predecessor this is almost certainly wrong:

What the new president did not say was that the orders contained a few subtle loopholes. They reflected a still unfamiliar Barack Obama, a realist who, unlike some of his fervent supporters, was never carried away by his own rhetoric. Instead, he was already putting his lawyerly mind to carving out the maximum amount of maneuvering room to fight terrorism as he saw fit.

After a while, the arbitrary executive will stop even bothering to weep before he eats the oysters.

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