Via Froomkin, Sid Blumenthal…
In private, Bush administration sub-Cabinet officials who have been instrumental in formulating and sustaining the legal ‘war paradigm’ acknowledge that their efforts to create a system for detainees separate from due process, criminal justice and law enforcement have failed. One of the key framers of the war paradigm (in which the president in his wartime capacity as commander in chief makes and enforces laws as he sees fit, overriding the constitutional system of checks and balances), who a year ago was arguing vehemently for pushing its boundaries, confesses that he has abandoned his belief in the whole doctrine, though he refuses to say so publicly. If he were to speak up, given his seminal role in formulating the policy and his stature among the Federalist Society cadres that run it, his rejection would have a shattering impact.
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Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited.In its defense, he says without a hint of irony or sarcasm, ‘Not everything we’ve done has been illegal.’ He adds, ‘Not everything has been ultra vires’ — a legal term referring to actions beyond the law.