Power and Constraint: The Accountable Presidency After 9/11.

• Author: Scheuerman, William E.
• Position: Book review

POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11. Jack Goldsmith. (1) New York: W. W. Norton & Co. 2012. Pp. xvi + 311. $26.95 (Cloth).

President Barack Obama's updated version of the so-called war on terror has received something of a "free pass" from most political and legal scholars. (3) To be sure, civil libertarians at the ACLU, Center for Constitutional Rights, and other activist organizations, (4) as well as liberal voices on the editorial pages of the New York Times, (5) have pilloried Obama for his failure to fulfill what appeared to be a heartfelt 2008 campaign promise to dramatically reverse his conservative predecessor's controversial counterterrorism policies. Yet nothing akin to the avalanche of critical books or journal articles burying President George W. Bush's policies has emerged thus far. In part, the difference stems from Obama's admirable decision to abandon the Bush Administration's embrace of so-called "enhanced interrogation" (i.e., torture). (6) The silence likely stems as well from the partisan preferences of law professors and political scientists, many of whom instinctively sympathize with Obama and his Democratic Administration. Those defensive instincts have surely been reinforced, albeit inadvertently, by right-wing critics like Dick Cheney and Rudy Giuliani, neither of whom seems willing to miss an opportunity to appear before the TV cameras in order to denounce Obama for being "weak on terrorism." (7)

So it probably should come as no surprise that the best available account of the Obama Administration's version of the war on terror comes from one of our leading conservative jurists, Jack Goldsmith, in his new and provocative volume. More unexpected is that if Goldsmith's description of Obama's policies and his Administration's legal justifications is to be believed, some of the President's vocal critics on Fox News can probably calm down: as Goldsmith for the most part convincingly outlines, continuities outnumber discontinuities as far as Obama's relationship to his Republican forerunner goes (pp. 3-48). Most surprising perhaps, Goldsmith seems at least broadly appreciative of--if not always enthusiastic about--the basic outlines of Obama's present political and legal brew, seeing in it the product of fruitful institutional learning that has characterized U.S. policy since 9/11 (p. xii). For those vexed about indefinite detention, Abu Ghraib, and Guantanamo Bay, Goldsmith offers some reassuring words. Despite some blemishes, the U.S. polity, blessed with a thriving civil society and firmly institutionalized checks and balances operating effectively to counter extreme policies, has in fact performed reasonably well since 9/11: President Bush was eventually forced to reconsider counterproductive and legally dubious policies (e.g., torture) (p. xii). Because of our resilient and indeed self-correcting constitutional system, fruitful pushback not only encouraged officials to abandon such policies, but along the way vital lessons have been learned about how best to navigate what Goldsmith sees as a more-or-less permanent state of emergency (pp. xiv-xvi). Although Obama's present-day policies are by no means flawless, he has not only built on the lasting achievements of the Bush Administration's version of the war on terror, but has also sensibly tried to render them consonant with longstanding U.S.-backed legal ideals (pp. 5-20). Best of all, Obama has been driven to do so partly because he faces pressures like those which similarly forced President Bush to give ground (p. 24). Pace scholars on both the left and right who depict the present-day presidency as effectively uncontrolled by institutional and constitutional means, Goldsmith underscores crucial ways in which it continues to confront oftentimes imposing constraints. (8)

Providing a hardheaded yet surprisingly sympathetic look at President Obama's policies, Goldsmith's volume provides illuminating reading for anyone interested in the political and legal vagaries of post 9/11 U.S. counterterrorism. Unfortunately, the author's insufficiently critical view of the U.S. constitutional system leads him not only to exaggerate its successes in dealing with terrorism, but also to distort some of the complexities of counterterrorism under the Obama Administration.

1. IN GEORGE W. BUSH'S FOOTSTEPS

   Many readers of this journal are already familiar with the fact that Goldsmith served as Assistant Attorney General in the Office of Legal Counsel between October 2003 and June 2004, before running afoul of precisely those Bush Administration officials who supported far more outlandish views about executive prerogative. (9) So his present volume represents an implicit attempt to provide an ex post facto justification for the more moderate course he advocated under President Bush, as well as a clear suggestion that voices like his won the war even if they lost the internecine bureaucratic battles: counterterrorism law and policy not only positively evolved in the direction sought by moderate conservatives like Goldsmith who were abrasively pushed aside by their rivals, but President Obama has relied heavily on the Bush Administration's approach between 2006 and January 2009: "The bottom line is that it copied most of the Bush counterterrorism program as it stood in January 2009, expanded some of it, and narrowed a bit" (p. 5).

   To be sure, Goldsmith concedes that Obama has broken decisively with his precursor's positions in some crucial arenas. Most dramatically, Obama has disavowed the Bush Administration's early endorsement of torture (p. 14), and despite sizeable political opposition also released significant quantities of previously classified documents about recent U.S. interrogation practices, some of which provide absolutely harrowing details. (10) Obama also cut loose from Bush by closing down so-called offshore "black sites" where suspected terrorists were subjected to controversial forms of interrogation and detainment, while forthrightly reaffirming the U.S. commitment to the relevant Geneva conventions concerning the humane treatment of prisoners (p. 16). He also has moved away from making constitutionally tendentious claims concerning inherent executive power, instead tending to appeal to statutory legislation (e.g., Congress's September 18, 2001 authorization "to use all necessary and appropriate forces" against those aiding or abetting the 9/11 attacks) as a legal justification for his actions (pp. 39-41). As part of a noteworthy shift in the rhetorical (and sometimes legal) framework under which counterterrorism is now waged, the bellicose language of "war on terror" has pretty much vanished from Administration statements, the dubious legal category of "enemy combatant" is no longer deployed, and, most importantly, even when pursuing actions seemingly reminiscent of his predecessor's, the Obama Administration generally highlights their alleged compatibility with basic rule of law virtues (e.g., the right to a fair hearing) (pp. 40-41). Even though Goldsmith sometimes wants to downplay the degree to which this move represents significantly more than improved political "packaging", (11) he concedes that Obama's rule of law rhetoric has not only generated political capital for the president, but has also shaped some key facets of U.S. counterterrorism (pp. 39-48).

   Admitting that such changes remain considerable, Goldsmith nonetheless proceeds to make a strong case in defense of his thesis that "Obama [has] continued almost all of his predecessor's counterterrorism policies" (p. x). In this vein, Obama has publicly renewed President Bush's declaration of a "national emergency" from September 14, 2001, and elsewhere has frequently taken over--or at most modestly altered--core Bush-era legal arguments and doctrines. Although its public rhetoric might suggest otherwise, the Administration continues to insist that the U.S. remains at war with Al-Qaeda, and it still asserts far-reaching executive authority to combat terrorism by appealing to the vast and arguably unwieldy delegations of authority promulgated right after the 9/11 attacks (e.g., the congressional declaration of war against Al-Qaeda) (pp. 5-6). Like his conservative predecessor, Obama relies on the controversial Patriot Act--whose renewal he supported--to legitimize some of his policies (p. 16). Nor has the Obama Administration bothered to explain when, if ever, the ongoing war on terror and/or "state of emergency" will conclude (p. 21-22). Not surprisingly, the Administration has continued many and perhaps most of the extensive forms of intelligence gathering and surveillance employed by Bush (pp. 16-17). As Goldsmith points out, Obama has even tellingly "approved the construction of a $1.5 billion, one-million-square-foot NSA data center" in Utah equipped with state-of-the art cybersecurity tools (p. 17).

   Despite Obama's initial promise to close it down, Guantanamo Bay (GTMO) remains open and operative, albeit on a smaller scale (i.e., with only 167 detainees (12)) than under Bush (pp. 11-12). Even if blame for this failure can by no means be placed solely or perhaps even chiefly at Obama's feet, he has followed Bush in endorsing indefinite detention for some suspected terrorists, many of whom will apparently remain in more-or-less permanent limbo at GTMO (pp. 12-13). Similarly, the Obama Administration reformed, but by no means abandoned, the system of military commissions inherited from the Bush Administration (p. 9). While the commissions now look quite different from the kangaroo courts initially sought by former Secretary of Defense Rumsfeld and others, in part because of some real procedural improvements (p. 187), the overall picture remains sobering: the Administration is still fighting off legal challenges to its attempt to give base commanders carte blanche authority over visits by legal counsel, along with discretion to decide how...