The bad news is that the president – whether through conviction, an excess of caution or political calculation – has been unwilling to directly address some urgent problems.  The good news is that not everyone is waiting around for him to change his mind.

For more on pruning back executive power see Pruning Shears.

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

Mark Danner’s coverage of the International Committee of the Red Cross report on the CIA’s treatment of detainees is maybe the most important addition to our body of knowledge on the Bush administration’s torture program since The Dark Side.  He goes through the problems torture creates in the pursuit of justice (“If the ‘coercive’ and ‘abusive’ interrogation of [twentieth 9/11 hijacker Mohammed al-]Qahtani makes trying him impossible, one may doubt that any of the fourteen ‘high-value detainees’ whose accounts are given in this report will ever be tried and sentenced in an internationally recognized and sanctioned legal proceeding”). He also documents the organized cruelty in sickening detail, once again elaborates the practical limitations of it, and draws a series of unflinching conclusions (“Beginning in the spring of 2002 the United States government began to torture prisoners…The most senior officers of the US government, President George W. Bush first among them, repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public”).

This story had the misfortune of breaking on the same day as that of the $165 million in taxpayer money paid to the same AIGeniuses who wrecked their company in the first place.  Both have something in common, though: the reluctance of president Obama to address either head on.  Miles Mogulescu quipped that Obama “sen[t] out Tim Geithner, Austan Goolsbee, and Larry Summers to lamely express fake anger” over the payments.  Instead of confronting and fighting back against AIG’s looting – Mogulescu has some excellent suggestions – the administration seems content to adopt the clever strategy pioneered by John Boehner: criticize it vehemently but go along with it anyway.  At the moment he still seems committed to the strategy of funneling huge sums of money to troubled Wall Street firms but leaving their demonstrably untalented leaders in place.

As for war crimes, the story of the Obama Justice Department is that of the dog that didn’t bark.  Last month he said Justice would investigate if there were “clear instances of wrongdoing,” and Danner’s report is the latest unambiguous indication of just that.  It is hard to take Obama at his word at this point; what would be sufficiently clear?  The most obvious explanation for the continued inaction is that he wanted to mouth the right words for public consumption but make no effort to follow through.

Both of these may produce a very happy unintended consequence, though: prompting others to find ways around presidential obstinacy.  We may have become too accustomed to expecting national-level changes to originate in the White House.  There has been plenty of talk about resurrecting the spirit of the New Deal and looking for an energetic president to lead with a bold set of policies and programs.  There have also been numerous mentions of the exchange between FDR and progressive activists, where after hearing their demands he said “I agree with you, I want to do it, now make me do it.”  (In the current case it is more than a bit frustrating to anticipate having to lobby for a Democratic president act like a Democrat.  My response to the “make me do it” argument is, if we’d have wanted to need to force the president to do it we’d have voted Republican.)

However, not everyone seems content to go that route.  George Bush made news this week when his trip to Canada encountered some turbulence in the form of the group Lawyers Against the War, who filed a suit to bar his entry by citing his suspicion on war crimes.  It may be tempting to dismiss it as political grandstanding, but since it happened on his first post-presidency trip abroad it might also be foreshadowing.  Lawsuits and protests may follow him wherever he goes, which only increases the chances of an arrest warrant or war crimes indictment.  Meaning, among other things, that international law will grapple with this even if the president will not.  How will it reflect on him if the case against Bush begins to be assembled and the rest of the world sees Obama as his protector?

Domestically, Andrew Cuomo has subpoenaed AIG executives to drag out the information that the president’s Treasury secretary is unwilling to insist on.  Lawyers are taking action against the architects of Bush’s torture team, and there are renewed rumblings against doctors who assisted torturers as well.  All of it sends the same message:  We will go around you if need be, Mr. President.  Considering how central the presidency has become to our sense of how things get done in America it is hard to think of that as a bad thing.

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