As I’ve been intermittently critical of the Obama administration’s course of action on rule of law questions, I think it’s important to note that the release of secret legal documents yesterday is a huge step in the right direction and a meaningful signifier of the sort of change that is possible with Obama in the White House. Glenn Greenwald’s look at “Authority for Use of Military Force to Combat Terrorist Activities Within the U.S.” is particularly instructive of where we are today, less than two months after the conclusion of the Bush administration.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments.  It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.  And it wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls “domestic military operations” was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying — in secret and with no oversight — on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

Clearly the task in front of the Obama administration to unwind and rollback extreme, anti-constitutional executive branch legal positions like this is great. It is up to Obama and his legal counsel to take all that was wrong and cut it out, swiftly and with no hesitation. If Obama’s team proves slow or even unwilling to do this, the onus must fall out congressional leaders to do what they failed to do over the last eight years: be an assertive check on the executive branch.

Greenwald points out the the military operations authorized were not abstract, but were actualized by NSA warrantless wiretapping of Americans on U.S. soil. Understanding the sort of legal doctrines the Bush administration used to justify these actions is a necessary, but not sufficient, step for restoring the rule of law in America. We also must know what specifically was done following the establishment of these legal positions. We must know who was spied upon, who tortured our prisoners, and who was sent abroad to be tortured. We must know how wide a net the federal government cast in their suspicions of innocent Americans. Knowing what secret laws were and are in place is a step in the right direction, but it is by no means a meaningful accounting of the assault on the Constitution under the Bush administration.

Via Greenwald, Scott Horton writes:

 We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it. [Greenwald’s emphasis]

This is the imperative the Obama administration faces: how do we have such an accounting of the Bush “dictatorship” so as to restore the Constitution, while simultaneously instilling in the American public a degree of outrage and skepticism that will ensure that such actions are never again deemed acceptable by anyone serving in the federal government? Looking at our past is precisely what will ensure that our nation’s future is bright and defined by our freedoms and not their absence.