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Friday, November 02, 2007
Goldsmith's Terror Presidency
Stephen Griffin
I’ve finished reading the two latest books on the age of terror – Jack Goldsmith’s The Terror Presidency and Charlie Savage’s Takeover. First I’ll post on Goldsmith, then Savage.
Comments:
Presidential "mistakes" in the prosecution of the Vietnam War had nothing to do with the radical change in "law and legal culture" to which Goldsmith referred. Rather, this is the work of a radical anti war Congress which came to power in 1974 and whose intent was to hobble Executive intelligence gathering and war making powers.
Consequently, there is little to learn from Vietnam. Rather, the lesson is how these post Vietnam restrictions blinded and hamstrung the Executive so it could not effectively defend the nation against the 9/11 attacks. The Executive push back after 9/11 has nothing to do with expanding Presidential power. Rather, the Bush Administration is attempting with only partial success to simply restore Presidential power to the status quo ante 1974. The WWII precedent is useful in reestablishing the proper scope of Executive powers.
And so the idea that we can learn something from these conflicts about the exercise of executive power has been erased as well. As Goldsmith and others have pointed out, officials like Cheney reacted to laws like the WPR by saying presidential power had to be increased. But what about the presidential mistakes that led to passage of the WPR? Not his problem and he obviously never felt the need to answer those questions.
And, strangely enough, WPR actually increases a president's power, allowing them to officially engage in war without direct congressional approval, and at which point it would be very unlikely that Congress would attempt to pull troops out of the war zone (unless it was under Republican leadership against a Democratic President). And the bottom line is that the President is supposed to execute the laws as written. Yes, he can suggest legislation (or in the current case, write it up for acceptance nearly wholesale), but once passed, the President is supposed to use it as is, or challenge it in court. Not ignore portions via signing statements (aka the unconstitutional line item veto of current usage). To me there is a fundamental difference between abiding by the law and attempting to subvert it. The Bush administration is attempting, with some success, to restore imperial power to the status quo ante 1774 (and in some cases 1215). Some can quiver in their pants and complain that these steps are necessary to protect us from a relatively small, generally disorganized non-state enemy, but that question was answered in the Bill of Rights.
Thanks for an insightful view of Goldsmith's book. I'm looking forward to your thoughts on Savage - who, relevant to the comments above, has a very cogent discussion of the Bush admin's so-called "unitary executive" and its ahistorical view of "inherent" executive powers, which seems to want to re-incorporate all the royal perogatives Blackstone enumerated that the Constitution explicitly removes from exclusive executive control.
I appreciate the reminder that things have happened since the days of the "greatest generation" and the legal environment has changed as well.
"Lawrence v. Texas" suggests "the last 50 years" is an important place to look when deciding things such as "due process," securties that tend to develop meaning over time, so that appeals to the Magna Charta in 1760 would confuse many around in 1360. This was underlined in the various detainee cases. For instance, in Hamdi, Souter referenced 18 U.S.C. § 4001(a) (Non-Detention Act) (1971) ... passed with clear intent not to re-visit Japanese internment. See also, Hamdan, where Stevens noted WWII era precedents in various ways did not meet the test of time. We should learn from history, including the compelling understanding of the need of human rights law with teeth after WWII (see, e.g., Samantha Power's work). Now, some can look at history with clouded eyes and see what they want (Yoo thinks the Constitution envisaged a George III like exective), but we need not go that route. BTW, Fraud Guy's sentiments are on the money, including as to the WPR. I fear the same concerning this latest attempt (see Lucy and the football post) to pass an anti-torture bill, as if w/o such a law, such things are okay.
joe said...
We should learn from history, including the compelling understanding of the need of human rights law with teeth after WWI The comparison of the victory in WWII with the utter inability of the hamstrung and blinded Executive to deal with al Qaeda up through the 9/11 attacks is all the historical lesson you need. You NEVER fight a war blindfolded and with one hand tied behind your back.
I like that part about how "the Iran-contra prosecution [an autonomous entity, apparently] . . . outlived any reasonable purpose" whereas "Ken Starr lost his head." As I have noted before, this rhetorical trope, whereby left/liberal law professors assert that their political adversaries are stupid and intellectually inferior, is very tiresome, and, outside the faculty lounge echo chamber, unconvincing. I can hardly imagine how tiresome Prof. Griffin must be when he isn't struggling to be even-handed.
The comparison of the victory in WWII with the utter inability of the hamstrung and blinded Executive to deal with al Qaeda up through the 9/11 attacks is all the historical lesson you need.
Comparing the conflict with Al-Qaeda to WWII is like comparing the Haymarket Riot to the Civil War (and about as fruitful). You NEVER fight a war blindfolded and with one hand tied behind your back. That explains Iraq today, if the blindfold was the preconceived desire for war with Iraq, regardless of the facts, and the tied hand was Rumsfeld's desire for the smallest possible invasion force, as well as the lack of a plan or sufficient force to secure ordnance, infrastructure, and the citizens of Iraq, setting the stage for the continuing insurgency against our occupation. But those faults had nothing to do with the the status of American law and the power of the Executive branch, and everything to do with those who were wielding that power.
Bart, your statement that there is nothing we need to learn from Vietnam is the single stupidest comment ever made in the history of the blogosphere. Congratulations.
Prof. Griffin, I think your claim that Goldsmith ignores post-WWII changes in the law and legal culture is misleading. Rather, I think he draws different lessons than you--namely that judgments by executive department officials will be second-guessed with the benefits of hindsight in various fora. "Vietnam" may not be in the index, but try "Kissinger."
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