David Cole Responds

David Cole sent in the following response to my post of the other day on his earlier New Republic article:

My piece took issue with the claim so often made by all sides of the debate that Obama has continued Bush’s policies. Interestingly, you focus only on the left’s critique, and where that comes from, but do not dispute any of my descriptions of the changes Obama has wrought.  I agree that some of the disappointment stems from unrealistic hopes for change--I too warned, in a piece for Mother Jones during the presidential campaign, that change would not likely be dramatic.  There are institutional reasons why executives of all stripes do not voluntarily give up their power. But given that, the fact that Obama has been willing to live within constraints that Bush et al. so cavalierly dismissed is all the more significant.  What President other than Obama has told a court that it was wrong when it told him that his power was unchecked by international law? The law permits a democracy to use aggressive measures to protect itself, but insists that they be constrained by checks and balances, respect for basic human dignity, abjuring of cruel treatment and torture, etc.  They do not prohibit the use of military force, and I’m not aware of anyone who has argued to the contrary.  (Many argue that the use of military force is a mistaken policy, but few claim it is per se illegal).  The distinction between a democracy that responds to terrorist threats within the constraints imposed by law and a democracy that responds in defiance of the very notion that law should constrain it is not a difference “only a law professor could love.”  It is the distinction on which we rest our all.

We will, of course, post any thoughts David has as well on either or both of Jack's or my subsequent posts on the New Republic piece.