Finally got a chance to read my good friend Eli Lake’s excellent exploration of the legal continuities concerning executive power between the Bush and Obama administrations on counterterrorism. Eli does a particularly good job of locating those continuities within what he calls the “post-2006″ Bush administration — that is, after Congress and the courts rejected John Yoo’s contention that limitless non-budgetary executive authority during wartime is an inherent presidential power stemming from Article II of the Constitution. The trouble is that the fallback position is a paragraph-long September 14, 2001 congressional resolution that passed the Senate 98 to 0 authorizing military force to retaliate for 9/11.

When the Bush administration decided it needed to find a more stable font of authority for its wartime powers than inherent presidential authority, it used the so-called AUMF. Under Bush, the AUMF justified indefinite detention without charge, interrogations outside the accepted boundaries of either civilian or military law, blanket warrantless surveillance, abductions of individuals and their transfer to countries that practice torture, and assassinations of select individuals. Under Obama, it might mean those abductions and transfers, and it certainly means assassinations of individuals, even American citizens, through drone strikes and, theoretically, other means. Here’s what the AUMF actually says, when you get rid of all the preambular language:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

If these sentences really do carry the statutory heft the Bush and Obama administrations contend, then we should call the AUMF what it is: an emergency law. Lots of countries pass emergency laws that aggregate to the executive wide-ranging powers during moments of particular threat. Very rarely do such nations revoke those laws. Chile did, I think, fifteen or so years after the coup. Egypt’s has been in force for 30 years. If the comparison is offensive, isolate the source of the offense: the aggregation of executive power on flimsy pretext in a manner unbecoming of the world’s most mature republic, not in raising the comparison.

Eli writes that what’s necessary is to build a political constituency for revocation or repeal of these laws, so people aren’t left in the position of having to “trust their government to tell them when they are safe again.” I’d like to believe such a constituency is possible, however arduous it will be to create; I know it’s definitely impossible if we believe it to be impossible.