Jack Balkin has a superb and disturbing consideration of the ways Obama's war on terror policies are a continuation of Bush's second term policies, and on the related significance of the torture of Private Manning.

"My view, as I expressed to Charlie Savage in that interview, is that Obama has played the same role with respect to the National Surveillance State that Eisenhower played with respect to the New Deal and the administrative state, and Nixon played with respect to the Great Society and the welfare state. Each President established a bi-partisan consensus and gave bi-partisan legitimation to certain features of national state building.

After the Obama presidency, opponents of a vigorous national surveillance state will be outliers in American politics; they will have no home in either major political party. Their views will be, to use one of my favorite theoretical terms, "off the wall."

Yet, one might hope that the Obama version of the National Surveillance State might turn out to be more benign and friendly to civil liberties than the Bush/Cheney version. To a certain extent this is true, but not by as much as you might think. On several fronts, Obama has continued Bush era policies of preventive detention, surveillance, and protection of state secrets. And in other respects, he has gone further....

What the Manning episode demonstrates, however, is that Obama has little interest in spending political capital in reining in many of the excesses of the National Surveillance State. Quite the contrary: he, like future Presidents, will sincerely believe that he needs every ounce of discretion he can get to protect the nation's security. Therefore, if the DOD informs him that we need to make an example of Bradley Manning so there will be no future leaks of sensitive information by disgruntled government employees, then this is a good and proper thing to do. Legal and constitutional scruples against harsh treatment of Manning are, to quote Attorney General Gonzales, "quaint;" entirely inappropriate in the dangerous times in which we live.

In July 2009, I explained that we were witnessing the bipartisan normalization and legitimation of the National Surveillance State, in which the President's power to detain, surveil, and punish at his discretion would be greatly expanded. In the treatment of Bradley Manning, we can see a glimmer of what this will mean in practice. Unless there is a public outcry, we have no guarantee that this exceptional incident will prove truly exceptional. After all, if a liberal Democratic President is willing to look the other way in this case, what can we expect of future presidents of either party?"


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