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Not long ago, the Obama administration argued that they didn't need congressional approval for the military operation in Libya, because according to their interpretation of the War Powers Act, it doesn't qualify as "hostilities." This position was roundly mocked from all quarters. Adam compares this to the way the Bush administration decided that things like stress positions, where you induce excruciating physical pain in a prisoner in order to extract information or a confession, don't qualify as "torture." In the latter case, the self-evidently bogus position the administration adopted became just one more point of controversy, and since there was a controversy about it, some news organizations (e.g. the New York Times) actually stopped referring to certain torture techniques as "torture," because now there was a controversy about it.
More to the point, though, is that President Obama faces what you might call a "hack deficit." There simply aren't many legal scholars on the left who are willing to give Obama a pass. Unlike right-wing legal writers, left-leaning ones are treating Obama and Bush equally. Bruce Ackerman, who called for the impeachment of torture memo author Jay Bybee, has now blasted the White House, claiming it "has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years." His colleague Jack Balkin wrote: "If one is disturbed by Bush's misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures." Liberal writers like Eugene Robinson and James Fallows have also rejected Obama’s attempt to redefine the term hostilities.In a case like this, there are two stages to shaping the discussion in the way you want. First, you have to understand how to do it; then you have to be able to execute your plan. The Obama administration hasn't been out there reacting with outrage every time someone says that we are engaged in "hostilities" in Libya, the way the Bush administration did whenever someone said "torture." Adam is precisely right about the dearth of hacks on the left. I'd also add that this is a matter both of sheer number of hacks, and of the proportion of hacks among each side's pundit class. It was key to the Bush effort that everyone on the conservative side -- legal scholars who get quoted in the press, opinion writers, former GOP administration officials, talk show hosts -- got on the torture train almost instantaneously, asserting with conviction that not only did we have to torture, but to call our torture "torture" was absurd. At the moment there may be liberal law professors who would support the administration's interpretation of the War Powers Act, but there are also plenty who won't. If you're a reporter writing a story about it, it doesn't look like a clean left/right divide -- in which case it would be necessary to present it in he said/she said format, with absolute neutrality -- but rather like a case in which the administration is doing something with which even liberals disagree. That produces a very different kind of coverage.One last point: conservatives have been very good at building the institutions that create and sustain this kind of hack gap. For instance, every conservative law professor who supported Bush's torture policy probably came up through the Federalist Society, where they were taught that the law is a place to wage uncompromising ideological/partisan warfare. During the Bush years, Federalist Society membership became almost a requirement for certain Justice Department posts and judgeships. And the two men Bush appointed to the Supreme Court are Federalist Society alums. Nurture those institutions, and the hack gap endures.
