The Terror Presidency: Law and Judgment Inside the Bush Administration

• Author: Major Brian P. Gavula
• Pages: 07

THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION1

REVIEWED BY MAJOR BRIAN P. GAVULA2

The Terror Presidency's most fundamental challenge is to establish adequate trust with the American people to enable the President to take the steps needed to fight an enemy that the public does not see and in some respects cannot comprehend.3

In July 2004, Jack Goldsmith4 resigned as Assistant Attorney General, Office of Legal Counsel (OLC), less than ten months after assuming that position.5 During his brief tenure as the "chief advisor . . . about the legality of presidential actions,"6 Goldsmith wrestled with some of the most important and controversial issues surrounding the war on terror: the applicability of the Geneva Conventions to Iraqi insurgents,7 the Terrorist Surveillance Program,8 and, most famously, the interrogation policy.9 To his utter astonishment, Goldsmith concluded within two months of taking office that several OLC opinions authored by his predecessors were "deeply flawed"10 and that consequently, "some of our most important counterterrorism policies rested on severely damaged legal foundations."11 In the following months, against the backdrop of a terrorist threat level "that was more frightening than at any time since 9/11,"12 Goldsmith's efforts to place the Bush administration's antiterrorism policies on a more firm legal footing would inexorably place him "on a collision course with powerful figures in the administration,"13 ultimately leading to his resignation.

In The Terror Presidency: Law and Judgment Inside the Bush Administration, Jack Goldsmith describes the insular practices, unprecedented pressures, and peculiar philosophies of presidential power that shaped the Bush administration's counterterrorism policies following the terrorist attacks of 9/11. While it may disappoint readers expecting either a chronological, blow-by-blow account of the debates in President Bush's inner circle or a legalistic issue-by-issue rebuttal to former OLC lawyer John Yoo's14 War by Other Means,15 The Terror Presidency is nonetheless an informative and worthwhile synthesis of lessons learned from the Bush administration's approach to the war on terror. In both criticizing and defending this approach, Goldsmith first examines the organizational structure and legal conditions that led to "the surprisingly central and sometimes unfortunate role that lawyers played in determining counterterrorism policy."16 Using several representative policy examples, he then skillfully contrasts the Bush presidency with the "crisis presidencies"17 of Abraham Lincoln and Franklin Roosevelt to support his overall thesis: that in seeking to maximize the President's formal power to do whatever he thought necessary to respond to the terrorist threat, the Bush administration's "go-it-alone"18 approach- characterized by "minimal deliberation, unilateral action, and legalistic defense"19-instead diminished the presidency's informal power and credibility.20

In the opening chapter, Goldsmith sets the stage for the prominence of lawyers in post-9/11 policymaking by describing the OLC as an arm of the Department of Justice empowered to issue legal opinions that are "binding throughout the executive branch"21 and that, if reasonably relied upon, effectively preclude subsequent prosecution.22 Thus, "[i]n an administration bent on pushing antiterrorism efforts to the limits of the law, OLC's authority to determine those limits made it a frontline policymaker in the war on terrorism."23 While the OLC has a tradition of giving "detached, apolitical legal advice,"24 Goldsmith recognizes the reality that OLC lawyers usually are "philosophically attuned"25 to the current administration, resulting in a role that is "something inevitably, and uncomfortably, in between" that of a neutral court and a zealous private attorney.26

Unfortunately for Jack Goldsmith, in October 2003 he took the helm of an OLC which the administration expected to be more akin to the latter. Goldsmith inherited a set of legal opinions largely authored by former OLC deputy John Yoo,27 whose expansive view of unconstrained presidential war powers pervaded these opinions and fell in line with other like-minded individuals in the Bush administration, such as David Addington, the Vice President's Counsel.28 More dangerously, Yoo's concept of executive power often caused his legal reasoning to go far beyond what was necessary,29 reinforcing the administration's go-it-alone approach. In fact, Goldsmith's very first opinion as OLC head, in which he determined that the Fourth Geneva Convention applied even to Iraqi insurgents, was also the first time that the Bush administration had been told "no" on its antiterrorism policies.30 Not surprisingly, he encountered everything from puzzled disbelief by then-White House Counsel Alberto Gonzales, to outright hostility by Addington, who barked, "'The President has already decided that terrorists do not receive Geneva Convention protections. . . . You cannot question his decision.'"31

After laying out the institutional backdrop for his first OLC opinion, Goldsmith takes the first of several historical detours in order to examine why his conclusion was accepted, albeit grudgingly, by an administration used to getting its way. He traces the evolution from the predominantly political constraints on presidential power that challenged Franklin Roosevelt's actions during World War II,32 to the legalization and criminalization of warfare that plagued the Bush administration.33 Not only did the Bush administration worry about international law and the threat of foreign courts exercising universal jurisdiction over U.S. officials,34 but also it had to contend with a multitude of domestic statutes, such as the Foreign Intelligence Surveillance Act, the War Crimes Act, and the Torture...