an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I’ve finished reading the two latest books on the age of terror – Jack Goldsmith’s The TerrorPresidency and Charlie Savage’s Takeover. First I’ll post on Goldsmith, then Savage.
I’m glad Goldsmith wrote this book. If nothing else, it should promote greater public awareness of the importance of OLC and the difficult job executive lawyers have, particularly in wartime. My reservations about this book have less to do with the specific constitutional arguments he makes about such matters as the torture memos and more with how he situates the Bush administration and questions of executive power within recent American history. I’ll provide some examples, then comment.
Goldsmith portrays an executive branch increasingly “ensnared by law.” He contrasts this with the situation during WWII. His account is that FDR felt free to ignore his own lawyers, including Attorney General Biddle, whereas the Bush II administration had to consult lawyers before the CIA could cross the street. He also cites Quirin, the Nazi saboteur case, relied on repeatedly (as he notes) by the Bush administration. The idea is that in Quirin, swift justice was dispensed, blowing past legal technicalities such as due process. We couldn’t do that today.
Why? A radical change in “law and legal culture.” There were legal revolutions in civil rights, an increase in judicial power and “rebellions and disclosures.” There were new restraints on executive power such as the War Powers Resolution and independent counsels to enforce them (Goldsmith implies the counsels enforced the WPR and influenced presidential war power – news to me). The Bush II administration was very aware of these restraints and worried by their implications for the 9/11 war, the war set in motion by the September 2001 AUMF. In a key memo, Alberto Gonzales warned the president about future independent counsels that might choose to pursue “’unwarranted charges.’” During Bush II, there continued to be a “post-Watergate, post-Iran-Contra, post-Lewinsky legal culture in which independent counsels, inspectors general, and ethics monitors harass political officials for years after they leave office.” Goldsmith’s point seems to be that after 9/11, important officials such as Gonzales were looking for a legal (constitutional) way around the law (statutes). John Yoo was in a good position to provide the answers as someone “who possessed at the tip of his confident pen all of the crucial precedents from the founding era, the Civil War, and World War II that would be vital in helping the administration respond to al Qaeda.”
I hope I am not nitpicking, but these historical observations make me nervous. Maybe I have to reread accounts of the Japanese internment cases, but I thought one of the lessons learned was how Biddle was undermined by zealous attorneys in the military and in his own department who twisted the facts to serve popular (and their own) prejudices. Sound familiar? And Quirin turned into a debacle when the Supreme Court found itself unable to write a sound ex-post opinion that made sense of a rush to judgment. Bush II lawyers apparently didn’t know that this opinion was almost as dubious in the judgment of history as Korematsu, something pointed out in the historians’ brief filed in Hamdan.
What of the change in legal culture? Here I get very nervous. Do you remember any wars fought by the U.S. after 1945? Goldsmith and Yoo don’t. Why did Congress pass the WPR? Well, there is no entry for “Vietnam” in the index. What I have observed about Bush II legal arguments is that they tend to end with WWII era precedents. The entire Cold War, Korea, Vietnam and subsequent conflicts (except for Kosovo – thank you, President Clinton!) has been erased from the history of presidential war power. 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. Vietnam is not so easily ignored, however.
And the independent counsels just waiting to prosecute Bush officials? That is a strange notion. Republicans gave up on independent counsels once and for all after the Iran-contra prosecution, which indeed ran for years and outlived any reasonable purpose. Democrats of course gave up after Ken Starr lost his head and the law expired in 1999. Maybe Goldsmith is thinking of the power of the Attorney General to appoint special prosecutors such as Patrick Fitzgerald in the Scooter Libby case. But this rings false. Goldsmith notes the 9/11 AUMF, but not what it meant politically, which is that Congress signed on to the war against Al Qaeda on a bipartisan basis. This doesn’t mean everyone in the executive branch had a get out of jail free card. It is highly implausible, however, that anyone could be prosecuted for acts authorized by those in authority taken in pursuance of the war. Politically speaking, how would such prosecutions get off the ground? Who would bring them? Perhaps the party that opposed the 9/11 war? There is no such party. So Goldsmith ignores the inescapable political element in constitutionalism. The 9/11 war was authorized by Congress and the people of the United States. No one needs to worry about post-hoc prosecutions on the basis of vague laws because everyone was in the same boat, politically speaking.
Goldsmith is right that executive branch lawyers have a tough job. As he says, it’s difficult to keep an open mind under the relentless pressure of the “threat matrix.” There are always people around willing to push the envelope of what is legally acceptable on the basis of flimsy rationales. That’s why we need lawyers who know their history just as well as they know their law. Posted
by Stephen Griffin [link]
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.
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.
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."