Great analysis of the weaknesses in the DOJ's arguments, and it is now for the courts to reject these pernicious claims of imperial power and, in so doing, move this case forward and the case for a Bush-driven "unitary executive" off the table.

This situation is, like it or not, a constitutional crisis and it derives directly from the last Congress' failure to impeach Bush -- leaving the issue here, and many of similar origin, to the courts to correct. And not to Obama to correct, either. The fact is, any Bush usurpation of constitutional authority that Obama simply chooses not to defend or claims to "disavow" is simply not gone, it simply would lie in abatement and there would not be any rule preventing a successor president from "reinstating" it (and doing so with the ability to argue that Congress' prior failure to impeach and/or establish rules contrary to the asserted practice constituted acquiescense, such that Obama's "choice" not to exercise a supposed aspect of presidential authority had no precedential effect).

The legal arguments being made by the DOJ here are either (1) made with Obama's consent or (2) may be being made by an "independent" agency that still doesn't have an appointed OLC chief (an appointee who, as is often noted, has expresssed vigorous opposition to the kinds of theories being articulated at this juncture). And it is only fair to note that, to the extent President Obama is indeed calling shots on this case, the "shot" he would be calling would be, quite simply, whether he ought voluntarily to relinquish a power that undeniably would make executive action easier -- and that, if he unilaterally abandoned that power without Congress (or, here, the courts) having definitively established that the power does not constitutionally exist, his action would bind only him. It is only fair to note that the intentional structure of our Constitution -- checks and balances -- does not expect a President to voluntarily relinquish authority that the President appears to have because Congress didn't object when it was postulated.

It isn't necessarily "evil" that the DOJ's position in the current case is that the existing ruling of the Ninth Circuit was issued in the context of the "general rule" question of whether an entire case should be derailed just because the Executive says "secrets could be divulged". The Ninth Circuit said that's not enough and sent the case back to the trial court -- but the question of whether a specific document, the contents of which are now about to be reviewed "on their merits" for the first time, constitute a "state secret" will now be opened up. That's apparently a big part of what the DOJ's recent filings are about -- what if there's secrecy that should attach to a particular document? It's not all that different from the Harriet Miers subpoena morass: the court there ruled that "executive privilege" did not allow a Bush aide to simply refuse to appear in response to a Congressional subpoena, but that hardly ends the matter because now each question and answer that could be involved will be subject to independent "privilege" scrutiny. Messy, cumbersome, tedious -- and exactly what the DOJ is raising with respect to future proceedings in the trial court. And for the DOJ to state that it may seek to further appeal from such potential disputes is neither here nor there and certainly not "pernicious"; there are erasers on pencils for a reason, and it's the same reason we have appelate courts.

But all those things being true, Glenn is absolutely correct in his warnings about how pernicious the substantive legal arguments being made by the DOJ are,how equivalent to the discredited Bush/Yoo monarchist abuse of the structure of the Constitution this continues to be, and how important it is that nobody allow this to continue without howls of protest.

Maybe the Obama administration and the existing staff at the DOJ are really, really clever and are "hoping" to get reversed; maybe Obama is willing to take whatever comes from the court proceedings because if the DOJ/Bush position loses, fine, but if it holds up he wouldn't mind having that kind of power.... But the bottom line is, this evil argument is a fundamental linchpin of the imperial presidency sought by Bush and Cheney and Addington and Yoo, and it must be prevented. It must die a death of certainly and immutability, never to be permitted to raise its head in a future presidency. And people need to say so, as Glenn is saying here.