Posted by: Shaun | June 5, 2008

Of terrorism and presidential power

The Terror Presidency: Law and Judgment Inside the Bush Administration, BY JACK GOLDSMITH

W.W. Norton, 2007, 256 pp., $25.95

September 11, 2001 was a day of national tragedy for the United States as well as a day of national transformation.  In response to the terrorist attacks on the World Trade Center and the Pentagon, the executive branch undertook a reevaluation of its role in the permanent emergency that was to follow: the Global War on Terrorism.  Aside from tracking down elusive al Qaeda operatives in the mountains of southern Afghanistan, one of the greatest challenges its plans would face would be three decades of American and international law designed to curtail the power of states to wage indiscriminate war.

Few people are better placed to comment on the way George W. Bush and his administration approached this hurdle than Jack Goldsmith.  Goldsmith is a professor of law at Harvard University, though his career has taken from the University of Chicago through the Pentagon, where he served as Special Counsel, and, finally, to the Office of Legal Counsel (OLC) in the Department of Justice.  It is his experience in this latter position that provides the most of the subject matter for The Terror Presidency.

The OLC is a form of legal adviser for the president, offering analysis of executive policies in order to determine their compliance with the law. This task has taken on increased urgency in the era of terrorism with the Bush administration consistently pushing the limits of its legal authority under the guise of the “Unitary Executive Theory” and inflated estimates of its “Commander in Chief” authority under the Constitution.

Goldsmith replaced Jay Bybee as head of the OLC in 2003 after winning approval from administration attorneys like Alberto Gonzalez and David Addington based on his competence as well as his conservative intellectual credentials (he is also the author of The Limits of International Law along with Eric A. Posner).  Goldsmith was immediately thrust into the thick of the fight when he was asked to provide an opinion on whether the rights conferred under the Fourth Geneva Convention applied to terrorists captured in Iraq.  When he advised the administration that under most circumstances they did, it was not pleased.  As he was informed, “They’ve never been told no.” (41)

Goldsmith provides interesting insight into some of the legal personalities behind the War on Terror, particularly David Addington.  Addington, Vice President Cheney’s counsel, is a zealous advocate of increased executive authority who seems to view post-Watergate legislation like the War Powers Act in the same light as Germany viewed the Treaty of Versailles.  He is also a notorious bully, once responding to an unfavorable legal decision by saying, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” (71, emphasis in original)

The culmination of Goldsmith’s experience in the OLC came when he reviewed the decision on “enhanced interrogation techniques” written on August 1, 2002 by John Yoo.  This was the infamous “torture memo.”  He writes:

The message of the August 1, 2002, OLC opinion was indeed clear: violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority. (144)

The problem, aside from the odious immorality implicit in the memo, was that the legal reasoning upon which the opinion was based was deeply flawed.  Goldsmith, rightly, took the extraordinary action of repudiating a memo that had been endorsed by his predecessor and the Attorney General of the United States.  Shortly after, he tendered his resignation.

Far from being an anti-administration jeremiad, Goldsmith’s book seeks to explain the enormous pressures under which the administration must operate.  Fear, in his experience, is the primary driver of tough anti-terrorism policies.  Given the nebulous nature of the threat, with bits of intelligence pointing in different directions, no official wants to take the chance that something they failed to do allowed the next attack to happen.  Thus, every possible action is taken to preempt the extremists and some lines are inevitably crossed.

On the other hand, legal advisers and policymakers are constrained by what Goldsmith calls the “post-Watergate hyper-legalization of warfare.”  He explains:

In my two years in government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls.  These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to insure that they didn’t.  But they worried nonetheless that they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one’s career, even if you emerge “innocent.” (69)

He continuously reiterates this distinctive feature of the modern policymaking environment, reminding his reader that past presidents were not subject to such legalistic restrictions.  Lincoln administration officials didn’t fear prosecution for his suspension of habeas corpus nor did Franklin Roosevelt’s advisers look over their shoulders when consigning Japanese Americans to detention camps and trying Nazi saboteurs in impromptu military tribunals.

While it is true that prosecutions are not always conducted solely on the merits of a case and that, even when they are, facts can be distorted by hindsight, contemporary “hyper-legalization” has a legitimate historical basis for its existence.  As even Goldsmith himself admits, these laws were a response to very serious violations of American law and civil liberties during the 1960s and 1970s.  We would do well to remember that they have a purpose beyond acting as a nuisance to intelligence officials.

Ultimately, Goldsmith believes that most of the policies carried out by the Bush administration, along with the legal opinions written to justify them, were warranted.  The administration’s great failure, in his view, was that it did not properly educate the public on the terrorist threat to build support for these measures and that it failed to consult with Congress before taking action.

Certainly, greater transparency and Congressional approval would have been welcome changes from the secretive Bush administration we have come to know.  However, Goldsmith seems to adhere to the fallacious proposition that the threat posed by terrorism to the United States is “existential” in nature.  An extreme threat demands extreme measures, albeit limited in applicability to the current conflict and enacted with Congressional approval.  The fact is, such a threat does not exist.  Moreover, the only way that terrorism could threaten the existence of United States is if it were to so frighten the nation that it decided to abrogate the very civil liberties that are its bedrock.  In this respect, the course of action advocated by Goldsmith, while preferable to policy by executive fiat, is still deeply flawed.

The Terror Presidency offers a fascinating perspective on the inner workings of the Justice Department in a time of war.  It offers a great deal of insight into the pressures faced by legal authorities, decision-makers, and individuals on the ground while presenting a useful critique of the way those pressures have shaped presidential policy since 9/11.  Ultimately, Goldsmith presents a number of compelling stories and valuable ideas, but his criticism of Bush’s terror presidency does not go far enough.

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