Proponents of the Bush administration’s antiterror policies argued for vast and unchecked new powers for the president.  Recent events may give them reason to question the wisdom of such absolute grants of authority.

For more on pruning back executive power see Pruning Shears.

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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.

Two of the comments in Friedersdorf’s thread, “unless you have read Justice Jackson’s opinion in Youngstown, you really aren’t equipped to discuss the legal issues here” and “The threat from the Islamic terrorists [is] certainly more significant than folks who want to bomb abortion clinics” seem to best summarize the counterarguments.  The first, presented with magnificent haughtiness, is to cite case law that conservatives previously had no use for when defending the War On Terror.  The Bush White House and Justice Department (the two were often hard to distinguish) formulated and ruled on policy by resolutely ignoring Youngstown – literally making no mention of it at all.  This tactic was also used when attempting to rationalize waterboarding and who knows what else.  As it turns out, pretending that what you do not like does not exist can be a remarkably effective political tactic in the right environment.

The refrain from the administration was that “9/11 changed everything.”  In practice it meant the president was not bound by precedent, tradition or the law as ordinarily understood.  The day of the attacks was Day 1 of Year 0; anything prior “does not reflect contemporary reality.”  For conservatives to now discover judicial process after deriding and dismissing it is impossible to take seriously.  They have spent years insisting upon the uniqueness of the threat we now face and the measures required to combat them.  Rulings from the Truman administration are as remote and foreign as the Code of Hammurabi.  No one on the right attempted to argue otherwise.  If they want to walk that back now that the political climate is not so favorable they should be honest enough to admit that no principle is involved.

The second argument is unpersuasive as well.  The right has never attempted to quantify the nature of the danger posed by terrorism, or argue for powers to be added or amended commensurate with that danger.  It simply treated terrorism as an existential threat that required ceding absolute power to the president.  When John Kerry attempted to put it in a law enforcement context he was ridiculed and the GOP made it a campaign issue (note then-RNC chair Ed Gillespie’s Year 0 condemnation of Kerry’s “pre-September 11 mindset”).  The right was fine with warrantless wiretapping of those “suspected of terrorist connections” and the relaxed evidentiary standards of the Patriot Act.  The argument was always for broadly defined powers against a poorly defined target.

So when the question becomes, “what is terrorism?” a lot is at stake.  Any activity that can adequately described as such is subject to the president’s vast array of new powers.  Remember, Bush’s supporters enthusiastically stretched language to suit their needs; prisoners became “unlawful enemy combatants” in order to deny them rights under the Geneva Conventions, for example.  They surely then would not object to having a second look at a term like “terrorism,” right?  Tiller’s murder appears to have been an attempt to intimidate people into changing their behavior – that seems to be as clear an example of it as you could ask for, no stretching required.  Proponents of the unitary executive did not say the president’s freedom of action was limited strictly to Islamic terrorism, or by any previous law or ruling.

Which means it applies just as well to the current case.  Given the gravity of the situation (Tiller is not the first murder victim) and the strength of already available evidence (there are closer operational ties between Scott Roeder and Operation Rescue than Binyam Mohamed and al Qaeda) Barack Obama would be completely justified in doing all the things Friedersdorf outlines.  He has shown no inclination to do so, and I would object to it if he did as strenuously as when Bush did it in the name of Keeping America Safe.  But the right should be under no illusions:  Should he decide to use even some of those powers, he will do so on grounds pioneered and strenuously defended by conservatives.