Yesterday, on Democracy Now, Sunstein did his best Michael O'Hanlon imitation and tried to rewrite his history of support for the Bush Administration's military tribunals, acting as if he would never be cited as someone who supported Bush's lawlessness. To put it bluntly, Sunstein was prevaricating. In 2002, writing about the Bush military tribunals, Sunstein argued in favor of the unconstitutional Bush military tribunals:

War and the Constitution

Under existing law, President George W. Bush has the legal authority to use military commissions to try certain suspected terrorists for violations of the law of war. In arguing otherwise, George P. Fletcher makes numerous blunders ["War and the Constitution," January 1–14, 2002]. The key decision is Ex parte Quirin (1942), in which the Supreme Court upheld President Roosevelt's decision to use military commissions to try German saboteurs who had landed on Long Island. The Court concluded that Congress had authorized use of commissions to try violations of the law of war. The Court held that the saboteurs had violated that law, and hence were "unlawful combatants," because they entered the country secretly, without uniform, and with the intent to destroy property. The Court emphasized that unlawful combatants could be treated differently from ordinary soldiers operating in uniform pursuant to an ordinary chain of command.

The Court extended this ruling in In re Yamashita, allowing commissions to try a Japanese general who had participated in atrocities against civilians (also violative of the law of war).

After these cases, President Bush's choice stands on firm legal ground insofar as he seeks to use military commissions to try people who planned and participated in the September 11 attacks (and similar actions). The congressional authorization found sufficient in Quirin is the same law invoked in Bush's order. In rejecting this conclusion, Fletcher misdescribes the law.

Fletcher's key contention is that when civilian courts are open, a military commission cannot be used to try offenses that fall within the civilian courts' jurisdiction. But Quirin rejected that contention in unambiguous terms, saying that this principle had no application to a case involving lawful or unlawful combatants. Fletcher invokes the 1866 decision in Ex parte Milligan as "the leading precedent." But in Quirin, the Court explicitly limited the reach of Milligan, saying that it did not involve a belligerent enemy. Amazingly, Fletcher suggests that Quirin "invented" the category of unlawful combatants. That category was and remains well established in both domestic and international law. ("By universal agreement and practice, the law of war draws a distinction between . . . those who are lawful and unlawful combatants," the Court said, with many citations.) Fletcher urges that it is important to distinguish between Nazi-style violations of moral decency and other violations of the law of war. For purposes of analyzing the legal issues raised by military commissions, this distinction is not relevant, much less important.

(Emphasis supplied.) Sunstein in essence argued for the decision in Al-Marri, which treats the President as an absolute monarch in time of war. In my view, Sunstein is wrong on the law. And in the 2006 Hamdan decision, the Supreme Court disagreed with Sunstein and the Bush Administration.

Similarly, Sunstein endorsed the Bush Administration warrantless surveillance program. And in an interview with Hugh Hewitt, Sunstein used the same condescending tone to dismiss critics of the Bush Administration:

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is.

Sunstein now wishes us all to forget that he fully supported the Bush Administration's lawlessness. He clearly wants to play a role in a potential Obama Administration. I do object to that possibility. Sunstein has supported the most extreme views of Executive power argued by the Bush Administration. Almost as bad, he has been mendacious about his previous positions, painting himself as in the mainsteam of progressive legal thought when he clearly is in the camp of the extreme conservative views on executive power. If Obama wants a Sunstein in his Administration, let's be clear about what we are getting - not some progressive legal thinker on Executive Power, but someone who hold the most extreme views on the subject, views rejected by the Supreme Court of the United States.

Speaking for me only