And no matter what one thinks the correct stance is, this seems to be all about Obama having missed his opportunity to take a correct and defensible legal stance in 2009 (thanks Rahm), but also refusing to take a stance he’ll need to fight for going forward. Now, frankly, of all the political fights Obama refuses to fight, I suspect an assessment that this is now an unwinnable fight might, for once, be accurate (which is different than agreeing that it was unwinnable in summer 2009). In other words, his assessment than an attempt to head Bud McKeon off at the pass may indeed be morally preferable if legally suspect. But all the claims about EOs stopping short of institutionalizing a permanent system of indefinite detention also ignore the ways that doing this via EO is at the least legally troublesome and may be far worse in the long run.

The incoming Chair of the House Armed Services Committee Bud McKeon wants to revisit and expand the 2001 AUMF authorizing our war against al Qaeda.