I don’t know if there are any civil libertarians or scholars whose views on the rule of law I trust more than Glenn Greenwald’s. Glenn has been one of the most vocal advocates for defending the Constitution throughout the Bush administration and was a key player in bringing pressure to bear on Democrats during the FISA reauthorization fights of 2007 and 2008. That’s why I tend to take his views on how President Obama is handling rule of law questions, such as those raised by Charlie Savage in today’s New York Times, quite seriously.

I agree with Greenwald that Obama has made steps in the right direction, but has generally taken a longer view to resolving problematic powers left to him by the Bush administration. In the first few weeks of his presidency, Obama has issued some positive executive orders pertaining to the rule of law. At the same time, some of his underlings have taken positions on a number of issues that signal they want to continue Bush-era powers unabated. Glenn rightly points out that “Policies become policies when the President adopts them, not when some of his appointees advocate them.”

I would feel a whole lot better had Obama promised on the campaign trail, as Chris Dodd did,  that on the very first hour of his very first day in office, he would sign executive orders to restore the Constitution and the rule of law to America. Obama didn’t make this promise and he hasn’t acted to realize the same ends yet. I hope that he does. But as with Greenwald, we cannot rely on the fact that Obama is a Democrat and someone Democrats supported and thus infinitely better suited to hold the powers of the presidency as George W. Bush as cause to stop pressuring President Obama to restore the rule of law in America. As Glenn writes:

We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good.  We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law.  That’s what it means to be a nation of laws and not men.  When Obama embraces the same abusive and excessive powers that Bush embraced, it isn’t better because it’s Obama rather than Bush wielding that power.  It’s the same.  And that’s true even if one “trusts” Obama more than Bush.

A genuine reversal of the last eight years — meaning something more than just sand-papering the roughest edges — will come not from having a kinder-hearted and more magnanimous leader, but only from a restoration of the legal and Constitutional framework that makes a President’s magnanimity irrelevant, since his powers are exercised transparently and with real checks and limits.  It remains very much an open question whether that will happen.  There are some preliminary signs that it could, and some much more concrete signs that it won’t — at least not without a very concerted fight.

There really haven’t been any situations were President Obama (or president-elect Obama) asked the civil liberties base to “make him do it,” a la Franklin Delano Roosevelt.  But that doesn’t mean that progressives and people who believe in the importance of the rule of law to the American project should not push to make restoring the Constitution a top priority for Obama. Bush era policies on rendition, torture, wiretapping, state secrets, executive privilege, and habeas corpus must not live on in an Obama presidency. While we can hope that Obama will not misuse these powers as long as he possesses them, we cannot leave it to hope that he will simply do the right thing while keeping the powers for the presidency.

Standing up for the rule of law during an Obama administration is not a stand against Obama. Pointing out the need to recommit our nation to the rule of law is not an attack. And while I personally wish there had been more done on this front already – and that Obama’s appointees were expressing at minimum the same levels of commitment he made as a candidate on this array of issues – I do think, like Greenwald, that the door is still wide open for President Obama to restore the rule of law. I would just propose that Obama can go faster.