The Terror Presidency: Law and Judgment Inside the Bush Administration.

• Author: Kmiec, Douglas W.
• Position: Book review

THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION. BY JACK GOLDSMITH. W.W. NORTON & COMPANY, 2007.

In his book, The Terror Presidency, (1) Harvard Professor Jack Goldsmith writes about his nine months of service as head of the Office of Legal Counsel (OLC) at the Department of Justice. The book is a useful and interesting contribution to the modern debate over the balance between national security and civil liberties. It is also a provocative contribution, perhaps sometimes in ways unintended by the author, to what it means to be a nation governed by the rule of law rather than the rule of men. Until recently, this Office was not well known to the general public, (2) even though it played pivotal roles in advising Franklin Roosevelt on constitutional aspects of U.S. support for Great Britain in World War II, (3) Dwight Eisenhower in the use of troops to integrate schools in Little Rock, Arkansas, (4) and, as Professor Goldsmith now documents, George W. Bush in the assessment of legal authorities in the wake of 9/11. Towering figures in American law have occupied the front office in OLC, including Nicolas Katzenbach, Malcolm Wilkey, William H. Rehnquist, Antonin Scalia, Theodore Olson, and Walter Dellinger. (5) Even some of those who worked in OLC but did not head the Office, such as Samuel Alito, have gone on to great national service. (6) Many others have enjoyed a legal career greatly enriched by service to OLC. (7)

Compared to other divisions of the Department of Justice, OLC is tiny. It consists of only a handful of lawyers, but its influence is disproportionate to its size. (8) It was the one place in government where one expected--or at least received, whether wanted or not--objective, candid advice on the interpretation of the law. (9) Throughout its history, OLC prided itself on keeping a low public profile, advising the President on constitutional questions presented by pending legislation, drafting the President's executive orders to ensure their proper form and legality, and resolving internal executive branch disputes over conflicting interpretations of constitutional provisions and statutes. (10)

The operations of OLC were in many ways structured like those of a court. (11) Prior to the Bush administration, it was uniform practice to insist that those requesting advice do so in writing, both to identify precisely the nature of the question being asked and to secure the preliminary thoughts or analysis of those seeking assistance. (12) In providing counsel, OLC insisted upon the freedom to seek the written views of other components of government that might be affected or see the matter differently. When the Office of Legal Counsel delivered its advice, it would never do so in draft form, so as to avoid the impression that it could be influenced by considerations other than interpretive merit. (13) The advice would be given in writing, and it would almost always begin with a disclaimer that its views were informed solely by the law and not the policy wisdom or prudence of the action being analyzed. (14)

The Office of Legal Counsel almost never testified before Congress, because doing so would assume the role of advocate rather than interpreter. (15) When OLC communicated with Congress, it routed its advice or questions through the Department of Justice's legislative liaison or the equivalent official at the White House. These were more than formalities. As Professor Goldsmith records, "OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law." (16)

Of course, OLC was not charged with taking a crabbed view of the law that failed, as Robert Jackson once said, to give "the benefit of a reasonable doubt as to the law" to the President. (17) Professor Goldsmith rightly observes that this was especially true in matters of national security, "where the President's superior information and quite different responsibilities [than those of the other branches] foster a unique perspective." (18) That Professor Goldsmith had an intellectual grasp of what it takes to be the head of the Office of Legal Counsel is evident by his own thoughtful words:

The head of OLC must be a careful lawyer, must exercise good judgment, must make clear his independence, must maintain the confidence of his superiors, and must help the President find legal ways to achieve his ends, especially in connection with national security. OLC's success over the years has depended on its ability to balance these competing considerations--to preserve its fidelity to law while at the same time finding a way, if possible, to approve presidential actions. (19) Professor Goldsmith's first and principal opportunity to implement this proper intellectual conception of the role of the head of the Office of Legal Counsel came when the White House requested an opinion on the applicability of the Geneva Conventions to the citizens of Iraq during the U.S. occupation of that country. Professor Goldsmith reports that the request came over the telephone and that his advice was expected within a week. (20) It is obvious that pressuring him to respond under those terms was not consistent with OLC's customary traditions of deliberation. Perhaps this was understandable given the emergency nature of events facing the country. Nevertheless, this context bears remembering as others, including myself, review the handiwork of OLC in a calmer, more extended period.

In this regard, Professor Goldsmith's book gives low marks to the legal advice rendered by his predecessor, Professor John Yoo. (21) Certainly, however, Professor Goldsmith would want his sometimes blunt and harsh criticism to be understood in light of the unprecedented and uncertain times in which Professor Yoo did his work. Indeed, the book's criticism is aptly qualified by the following observation by Professor Goldsmith:

Everyone in the administration with access to highly classified intelligence on threats to the homeland was scared of another deadly attack, and of not knowing how to prevent it. This fear created enormous pressure to stretch the law to its limits in order to give the President the powers he thought necessary to prevent a second 9/11.... But unlike [several] other presidents, President Bush acted in an era in which many aspects of presidential war power had become encumbered by elaborate criminal restrictions, and in which government officials seriously worried that their heat-of-battle judgment calls would result in prosecution by independent counsels, Justice Departments of future administrations, or foreign or international courts. (22) Understanding this human reality, it turns out, is necessary for a fair evaluation of Professor Goldsmith's advice as well.

The Geneva Conventions of 1949 codify the laws of war. (23) Under the Conventions, there are two broad categories of per sons who can be detained lawfully by an occupying power: (1) prisoners of war (POWs), and (2) civilians. (24) The Conventions that cover these two categories--commonly known as the Third and Fourth Geneva Conventions, respectively--set out the terms of detention for each category of individuals, the protections to be accorded during their detention, and the circumstances under which they are to be released. (25)

Professor Goldsmith's book is at its very best when outlining the considerations that led to the determination, prior to his arrival at OLC, that the Third Geneva Convention did not apply to members of al-Qaeda because they were unlawful enemy combatants. Although the Supreme Court would later chip away at this determination in Hamdan v. Rumsfeld (26)--finding that Common Article 3 of the Conventions applied to al-Qaeda (27) (a conclusion that Professor Goldsmith views as "legally erroneous" (28))--the fundamental conclusion that al-Qaeda was not deserving of POW status has never been set aside. (29) This is important to remember, because the United States has been unfairly criticized for relying upon this distinction, (30) even though it is well settled in the law of armed conflict. (31)

What is the difference between lawful and unlawful combatants? (32) Lawful combatants are worthy adversaries. They fight in uniform. They fight with their weapons openly displayed. They operate under a command and control structure. They observe the laws of war insofar as they do not target civilian populations but rather only military installations. If a lawful combatant is captured in the context of a military engagement, he is entitled to the prisoner of war protections of the Geneva Conventions and the common law of war that preceded them. Those captured cannot be prosecuted for the taking of life or other bodily assaults associated with military engagement. (33) Furthermore, interrogation is limited to rudimentary identification and any detention is for the purpose of preventing return to the battlefield and can last only for the length of the war. (34)

The unlawful combatant side of the ledger involves a contrary set of presumptions, as the Supreme Court recognized in its unanimous opinion in Ex parte Quirin. (35) Unlawful combatants do not fight in uniform. They are not subject to a centralized system of command and control. (36) Unlawful combatants hide weapons and do not observe any semblance of the laws of war--as we know from 9/11 and the Madrid and London bombings. They not only endanger civilians by hiding among them, but also target civilian populations. Indeed, as the World Islamic Front Declaration of War illustrates, targeting civilians is al-Qaeda's central purpose. (37) Such unlawful combatants have never been immune from prosecution for war crimes under any convention. They can be captured and interrogated. There is even common law authority to summarily execute them in the field. (38)

The differentiation between lawful and unlawful combatants is not an exercise...