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
Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer"
Another must-read piece, also, like Steve Coll's New Yorker essay, a review of Mark Mazzetti's The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth, is Jack Goldsmith's "The Trust Destroyer," in the current New Republic. Goldsmith (a friend and sometime colleague at the Harvard Law School) is usually thought of as being on the more conservative side of the spectrum from Coll, but their take on the book, and on the deficiencies of the Obama presidency--again, this is relevant to Mary Dudziak's critique--is remarkably similar. The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself. Should we have a genuinely public debate about what forms new congressional legislation might take with regard to regulation of drones and the use of special forces in countries with which we are not at war, I'm not positive how I'd come out, but I agree with both Goldsmith and Coll that the quality of our democracy is being eroded by the coy nature of such debate as occurs, where an Administration official makes a speech, at Oxford, Harvard, or wherever, or the President says something cryptic at a news conference, or, most notoriously, someone leaks the "White Paper" without, however, publicly addressing what many of us view as its near-bizarre notion of "imminence" with regard to justifying assassination. [UPDATE: A major theme of Steve Griffin's fine new book, which I happily blurbed, is that we have never truly thought through the legal doctrines required to justify what has become basically common practice since Truman's intervention in Korea. Steve emphasizes not only the changing nature of the challenges facing the US and its presidents, but also, crucially, the remarkably enhanced capabilities that presidents have in their capacity as "commanders-in-chief." In addition to weaponry that even Truman, who "dropped the Bomb," could not have envisioned, there is also the creation of "special operating forces" and the parallel airforce now apparently under the control of the CIA.
With regard to the White Paper's relianceon "imminence" as a justification for targetted assassination, I think it'w worth noting that the ABA rules of professional conduct, which in many states permit lawyers to disclose confidences when "imminent" danger is presented by a client, are interpreted far more restrictively. That's not meant to be a knock-down argument. Back in the days when I taught professional responsibilty, I suggested that a corporate attorney who realized that his clients were violating certain environmental laws and therefore posed a danger to people, even if not "imminently," should still feel at least a permission, and perhaps even a duty, to disclose. Consider the West, Texas explosion in this regard, where the company storing ammonium nitrate seems, on the face of it, to have engaged in flagrantly negligent, if not outright criminal, misconduct. This simply illustrates the potential value of a genuine public debate about the meaning of "imminence" and whether we are/should be willing to apply the same definitions to fat-cat lawyers for banks or chemical companies and to suspected terrorists. Posted
by Sandy Levinson [link]
I posted a warning here some years ago that making it impractical to capture, detain and interrogate al Qaeda members would instead compel the President to kill them all.
Obama uses drones and special ops to accomplish this because they avoid Americans coming home in aluminum boxes from conventional ground wars. This suits an otherwise war weary citizenry just fine.
Placing a layer of legal process over all this, as Mr. Goldsmith suggests, is a palliative for the squeamish and will not change the reality of our shadow war one iota any more than the FISA court curbs electronic intelligence gathering.
This is a difficult post to comment on, which is unusual for Sandy's posts at this Blog. With an UPDATE, Sandy connects to Steve Griffin's post put up shortly after Sandy's on April 3rd. This will be only the second comment in the 3 days following Sandy's post.
Sandy closes with this:
" This simply illustrates the potential value of a genuine public debate about the meaning of 'imminence' and whether we are/should be willing to apply the same definitions to fat-cat lawyers for banks or chemical companies and to suspected terrorists. "
Perhaps Sandy is mixing too much of a fruit salad here. Is Sandy calling for a "Truth and Reconciliation Commission" to address publicly what America has done since 1945 (in the manner of South Africa following apartheid)? Would the proposed "genuine public debate" enhance America's national security in this time of economic, political and military unrest in the world, on top of the political gridlock in Washington? Can President Obama, or any President, be expected to "correct" or undo suggested errors going back to 1945? Hindsight is not always 20-20.
As noted in a comment on Prof. Griffin's post, I await, anxiously, the upcoming National Security Strategy currently being worked on.
Of course, in the meantime, we should indeed get cracking on " ... fat-cat lawyers for banks or chemical companies .... "
" The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself. "
By the way, if by focusing on "imminence" you mean the Koh, et al. references to "immient threat," lets recall that an "immient" threat is not even a threat. Under international law, some argue that a state can engage in lawful measures of self-defense in case of an imminent attack (i.e., anticipatory self-defense), although this seems to be a minority viewpoint. The Bush Admin. used the phrase "emerging threat," which is rather like an "immient" threat, because neither is a present threat -- and the Bush Nat. Sec. doctrine was widely denounced.
" and the Bush Nat. Sec. doctrine was widely denounced."
demonstrates a possible memory problem. Bush's National Security Strategy of 2002 (Sep. or Oct.) was not widely denounced until long after the invasion of Iraq as it was failing. And even then, the denouncing was not that wide. (Query: Have subsequent Strategies changed that much?) Keep in mind that Bush/Cheney were reelected in 2004. Perhaps with Bush/Cheney the word was "immanence" rather than "imminence."
Shag: I mean widely denounced over time, esp. re: claims to use "preemptive" self-defense when a threat was merely emerging. This is especially evident in the law review literature. Re: "imminent threat" -- yes, that's the worry (didn't change?).
But " ... widely denounced over time, ... " is being widely challenged by Bushies, especially with the background of George W.'s new library and its interactive features responding to challenges of his policies.
I anxiously await Obama's upcoming National Security Strategy to make a comparison with Bush's.