Balkinization: American Exceptionalism (or "The Best of All Possible Worlds")

American Exceptionalism (or "The Best of All Possible Worlds")

Jonathan Hafetz

Jack Goldsmith recently published a thought-provoking piece in The New Republic entitled "The Great Legal Paradox of Our Times: How Civil Libertarians Strengthened the National Security State." Goldsmith argues, in short, that litigation brought by the Center for Constitutional Rights (CCR) on behalf of detainees at Guantanamo had the unintended effect of entrenching some of the very policies CCR and other civil libertarians opposed, in particular, indefinite detention and the use of military commissions to try terrorism suspects. (The response of CCR's Legal Director, Baher Azmy, is here). In Goldsmith's view, advocates played a valuable role by resisting the expansion of presidential power and triggering the involvement of the legislative and judicial branches. Ultimately, Goldsmith concludes, equilibrium was restored and "a consensus legal infrastructure" emerged, as these new presidential powers were both moderated and institutionalized.

As a descriptive matter, Goldmith's captures the solidification of key features of U.S. national security policy after 9/11. The United States' development of a military-based approach to counter-terrorism, rooted in the language and logic of a global armed conflict against al Qaeda and associated forces, has far-reaching implications, not only for the detention and trial of terrorism suspects but also for a range of other issues, including the use of deadly force. (I explore some of those implications in a recent article here and here).

But Goldsmith's decidedly Panglossian account obscures a more troubling lesson about the inter-branch buy-in on questions like indefinite detention or the non-justiciability of claims by torture victims. The current state of affairs is less a triumph of the Madisonian ideal of checks and balances than a cautionary tale about the way extraordinary powers asserted in the name of national security can become accepted and embedded. The primary lesson, then, is not Madisonian but Addingtonian. As David Addington, who helped established the broad features of today's consensus legal infrastructure during the Bush administration, told Goldsmith, "We're going to push and push and push until some larger force makes us stop." (The two men often clashed when Goldsmith headed the Office of Legal Counsel in 2003 to 2004). Eventually various forces did resist--thanks to CCR and many others, both inside and outside government. But, in the process, U.S. policy was substantially transformed and public debate fundamentally altered. (Torture, for one, became an acceptable subject of discourse). And, once extreme measures are pursued in this manner, the checking mechanisms Goldsmith extols have only a limited capacity to restore the balance.

Posted 9:15 AM by Jonathan Hafetz [link]