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Eric Holder's recent announcement on detainees was covered mainly for his decision to bring Khalid Sheikh Mohammed (KSM) to New York for trial. Less noted was the designation of military tribunals for five others. Civil libertarians objected to it, with Glen Greenwald doing a fine job summarizing their argument ("what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict.")

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No Associated Press content was harmed in the writing of this post

I started reading A Distant Mirror by Barbara W. Tuchman recently and was struck by this from page 43:

Philip bullied the first Avignon Pope, Clement V, into authorizing the trials of the Templars, and with this authority put them to atrocious tortures to extract confessions. Medieval justice was scrupulous about holding proper trials and careful not to sentence without proof of guilt, but it achieved proof by confession rather than evidence, and confession was routinely obtained by torture. The Templars, many of them old men, were racked, thumbscrewed, starved, hung with weights until joints were dislocated, had teeth and fingernails pulled one by one, bones broken by the wedge, feet held over flames, always with pauses in between and the "question" put again each day until confession was wrung out or the victim died. Thirty-six died under the treatment; some committed suicide. Broken by torture, the Grand Master, Jacques de Molay, and 122 others confessed to spitting on the cross or some other variation of crime put into their mouths by the Inquisitors. "And he would have confessed that he had slain God Himself if they had asked him that," acknowledged a chronicler.

How does America's treatment of detainees look next to that?

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All presidents are unpopular with a good part of the electorate, but there seems to be little skepticism towards the office itself. There is plenty of distrust and even outright revulsion towards particular presidents based on, for instance, whether one is more outraged by extramarital sex - by a political opponent, not by an ally - or war crimes. (Ironically, Republicans' approach with Mark Sanford has been to censure and move on; their refusal to use precisely that remedy with president Clinton was key in launching the first highly visible netroots site.) I am not even referring to the lunacy now coming into full bloom in some quarters. All those examples are about who a particular president is or what he has done. I am referring more to what a president ought to be able to do, which has trended almost exclusively towards greater deference and larger grants of authority in the last few years.

It is possible to argue, as Dana Nelson details in her book Bad For Democracy, that the presidency has been slowly but steadily aggrandizing since 1832 when Andrew Jackson "detoured from his predecessors who viewed the president as a mere executive by expanding his power when a clear mandate was expressed to him from 'the people.'" The president has increasingly come to be central to American political life and even viewed as the personification of the country. For as troubling as that is, though, we recently seem to also have added the idea that the president can act with impunity as long as it can be rationalized (however fabulously) as in the national interest. Presumably blowjobs are still verboten.

The courts have at times been all too eager to assist in this project, and on Monday the New York Times reported (via) their willingness to do so has unleashed some unintended consequences. The Supreme Court's Ashcroft v. Iqbal decision in May was a civil rights damages lawsuit against former Attorney General John Ashcroft. Javald Iqbal was swept up along with more than 1,000 other mostly Arabic people in America right after 9/11. He claimed mistreatment and filed suit against Ashcroft on the theory that responsibility goes to the top. The Court ruled that essentially unless Ashcroft was physically present and ordering the abuse he was not liable. In other words, in its eagerness to shield the executive branch from being held responsible for this or any other covert lawbreaking it substantially raised the evidentiary bar for lawsuits. Or as the Times described it, the ruling eviscerated discovery:

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This week Conor Friedersdorf looked at the murder of Dr. George Tiller and asked if defenders of George Bush's counterterror policies would "be comfortable if President Obama declared two or three extremist pro-lifers as 'enemy combatants'? Should Pres. Obama have the prerogative to order the waterboarding of these uncharged, untried detainees? Should he be able to listen in on phone conversations originating from evangelical churches where suspected abortion extremists hang out?" Considering that the suspect in Tiller's murder is already further along towards a conviction than Abu Zubaydah it seems reasonable to look at what tactics are theoretically available against someone that much more advanced in the legal process.

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When the aggrandizement of the executive branch began during the Bush administration I expected conservatives to be supportive because it was consistent with their history. On spending, for example, Ronald Reagan had no problem with profligate boondoggles as long as they were in his preferred area - even famously dismissed the entire concept of fiscal probity by quipping that the deficit was "big enough to take care of itself." This, remember, is the president the GOP most fondly remembers and reveres of at least the last fifty years, maybe since Lincoln. If its standard bearer couldn't be bothered what does that say about the rest of the party?

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On most issues I am firmly in the liberal camp, but have recently voiced disagreements with some on the left I usually agree with. The responses have been somewhat surprising. There are issues concerning the presidency and the executive branch in general, and Barack Obama should not be above criticism if he contributes to them. Defenders have said he is just getting started so it is too early to make even preliminary evaluations, that relatively minor retreats from Bush administration policies are sufficient concessions to civil libertarians, that the economic mess crowds out consideration of other issues, or that we ought to give him the benefit of the doubt as he works out his stance towards the Constitution in the expectation he will eventually end up in the right place.

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No Associated Press content was harmed in the writing of this post. Cross posted from Pruning Shears.

UPDATED BELOW

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On Tuesday U.S. District Judge Ricardo M. Urbina ordered the release of 17 Chinese Uighur Muslims from Guantánamo Bay and most likely caused a near-riot in the White House. His order highlights the increasingly muddled nature of the facility's existence and, if carried out, holds the potential for an avalanche of bad publicity at a very bad time for the President.

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U.S. District Court Judge Colleen Kollar-Kotelly ruled this week that the White House's Office of Administration (OA) does not have to turn over documents relating to the disappearance of potentially millions of emails. Citizens for Responsibility and Ethics in Washington (CREW) had filed a Freedom of Information Act (FOIA) request and in her decision Kollar-Kotelly wrote "the Court concludes that OA is not an agency subject to the FOIA". CREW plans to appeal.