The great, long-standing issue, which was identified way back by the Greeks, was the fact that the executive branch always gains power during wartime. This was why the Framers of the US Constitution and others made declaring war a legislative function, strengthened the judiciary, etc. They knew that the executive is always bent on this kind of thing, because it gets the glory, and does the deeds, and so on.   They didn't really consider what happens when you have war all the time (the Cold War was an example of the need for constant readiness -- there was only a short demobilization time after WWII), although Orwell pegged it pretty nearly in 1984 -- you have to have a constant enemy. The bad luck was that, just as the Cold War necessity folded, and there was this chance of pulling back on the executive, Osama Bin Laden arrived. And now there is the "war on terrorism" which is endless (I note that for the moment, the Obama team has dropped the term, which is interesting).

The legal fight would open up the power of the executive to more scrutiny than anyone seems to be prepared for, so long has the executive appeared to be necessary and godlike. It is hard to imagine Obama going after his own throat like that. He might try it for a little while, but he's an executive branch leader now -- it is unsustainable by him, it has to be generated elsewhere -- which is why public revulsion is so important.

The astonishing thing is that Republicans, supposedly the big libertarians, have no interest in this. Their drift to fascism has been going on so long, they have forgotten libertarianism.

yours,

PEter T.