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.

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 11:19 PM by Stephen Griffin [link]