I just heard a story from BBC news about the failure of the Obama administration to launch a criminal investigation into torture techniques employed under the authority of the Bush administration. Their various political and academic experts/talking heads came to the consensus position that there is every legal reason to go forward with an investigation, but every political reason not to.
The elephant in the room: presidents are effectively above the law. Now, progressive Bush critics have been saying for several years that Bush had placed himself above the law, on this and a host of other issues (for instance, the unprecedented level of his use of signing statements), but it struck a different tone for me after hearing this story.
For purposes of this little flight of imagination, suppose that torture is both morally wrong and illegal under federal and international law. Suppose further that some president - call him President Lush for purposes of illustration - had ordered that torture be used in an attempt to extract information about planned terrorist operations in the US (in this case, let's suppose further that we are referring to foreign terrorists, trained and motivated by a ruthless religion-exploiting leader who was in turn trained by the CIA - you know, just for the sake of illustration - and not domestic terrorists trained and motivated by a completely different ruthless religion-exploiting leader).
If you're following so far, the scenario is: (a) President Lush ordered torture to be done, and (b) that torture is illegal. What the BBC story made clear is that, under these conditions, no future President in his or her right mind would attempt to prosecute these crimes, because that future President's political viability would be instantly destroyed by the party of President Lush and their media blowhards.
This leaves no domestic avenue for criminal justice to apply to President Lush. Meanwhile, President Lush might be prosecuted by an international criminal court - say, a war crimes court. This might well work, except that the military power of the US makes President Lush above international law as well. It's unimaginable that any sitting president would turn over President Lush to the international court, and it's unimaginable that any international body would, or could, come grab him.
So there you have it: we no longer have a Presidency. We have an elected Emperor, whose domestic power is limited by Congress, but whose international, military and paramilitary power is unchecked, unlimited, and beyond any meaningful legal authority or oversight of any kind. Let me remind that the military budget of the US is 48% of all the world's military spending - and it's not clear that this represents the entirety of the military and paramilitary budget. That's trillions of dollars of unchecked power.