If my critique of the Bush administration could be expressed in a single sentence, it would be this -- they ignore and attack restraints on their power. This is the foundational conceptual thread that binds together so many of the scandals and controversies we've seen over the past few years. International law constraining your actions? Ignore it. War crimes statute limiting your interrogation methods? Ignore it (then delete it). Don’t like part of a congressionally-enacted statute? Issue a signing statement and ignore it. Pesky FISA cramping your style? Declare it unconstitutional. Geneva Convention got you down? Call it quaint. Is your habeas flaring up again? Delete it. Having problems with a special prosecutor? Lie to him. Are certain Democrats political threats? Prosecute them, or suppress their political base through fraud investigations or through not enforcing the Voting Rights Act. And if U.S. Attorneys refuse to go along? Fire them.
I could go on, but you get the point. And many similar critiques could be leveled against the Republican Party more generally on everything from Bush v. Gore, to the Texas redistricting, to the Medicare Rx bill vote, to the New Hampshire phone-jamming scandal, to the nuclear option, etc.
I'll give the GOP credit for instilling me with a healthy respect for limiting government (albeit they've shown that I should focus on limitations less of the "minimum wage sucks" form than the "torture = illegal" issue). But as Publius notes, the problems here aren't necessarily breaking or evading rule of law. Some of what the Bush administration has done is probably legal, but hideously inadvisable. For example, I guess I give the administration a little credit for (belatedly) getting Congress to change the law regarding Habeas. It's better than the old position, which was that President Bush could ignore Habeas simply because he wanted to. But it's still a bad thing insofar as it obliterates a crucial check on government power that prevents oppression.
America has a peculiar internal history, one that is deeply tied to our tradition of being a liberal, democratic state. In its purist manifestations, this story serves our nation well as a symbol of our highest aspirations. But we must take care not to be seduced by our own idealized history. If there is one thing Americans remember, it is that there is nothing intrinsic to being "American" that prevents our government from becoming a tool of oppression and illiberalism. If we strip away the procedures and norms that demand open government and democratic accountability, we will not be saved from authoritarianism simply because the state flies red, white, and blue. Many people seem willing to sanction near-any assertion of power by the Executive Branch, primarily because they cannot even imagine that this state, our state, could succumb to the totalitarian temptation that has cursed so many people around the world. This type of thinking will do us (and the democratic project) in.