The Terror Presidency: Law and Judgment Inside the Bush Administration
by Jack L. Goldsmith
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Book Summary Information
Author: Jack L. GoldsmithEdition: Hardcover
Audio: English (Original Language); English (Unknown); English (Published)
Published: 2007-09-10
ISBN: 0393065502
Number of pages: 256
Publisher: W. W. Norton
Book Reviews of The Terror Presidency: Law and Judgment Inside the Bush Administration
Book Review: Superb inside look at the early Bush administration's counterterrorism policies
Summary: 5 Stars
The grand irony of the (early - pre-2004) Bush administration's counterterrorism policies, Goldsmith observes, is that although the Bush administration lawyers sought "to leave the presidency stronger than they found it", in fact they "seem to have achieved the opposite". The reason is simply that the American constitutional system really does have three branches of government. Although the judiciary in principle has little constitutional role to play in matters of war or foreign policy generally, the fact that the war on terror has been conceived by the administration as a global war - in which the whole world is the battleground, in which even American citizens on American soil could be named as enemy combatants and indefinitely detained solely on the say-so of the executive - ensures that the Supreme Court cannot be left aside.
The administration's tunnel vision has thus left it blind to the fact that, by seeming to go it alone and refusing to go to Congress for such things as limits, but also authority, to hold detainees at Guant?namo, or specific rules on interrogation that confine, but also legally protect, interrogators, the administration has tied itself in marriage to a far more exigent spouse - the Court. The message of successive detainee cases from the Supreme Court - Hamdi and Hamdan, particularly - has not so far been that the constitution forbids much of what the executive proposes to do. After all, most of this pertains to non- citizens detained outside the United States; and until the Bush administration's spectacularly overreaching legal theories blew up in its face, no one thought the constitution applied to them at all. The message is, rather, that the administration should seek Congressional assent for what it wants to do. The Court has signalled provisionally that it will accept at least some extraordinary rules in the war on terror - provided, however, that the political branches have together given those departures democratic legitimacy. The Court's limits, following the just argued Boumediene case, to what the political branches might do even together are not yet firmly drawn.
But there is no going it alone in a system of divided constitutional powers. If not Congress, it will be the Court - or more exactly, as Benjamin Wittes has noted, the inconstant Justice Anthony Kennedy, the Supreme Court's swing vote - that endorses policy. In pursuing unfettered executive power to act alone, the administration has made Justice Kennedy its five-star general, its very own Douglas MacArthur in the war on terror. On the infrequent occasions when the administration has been forced by the Court to go to it for authority, it has been denied practically nothing. It has not so far mattered that the Bush administration is a lame duck, or whether Congress is in Republican or Democratic hands.
The administration seems not to have understood that what lives by executive discretion dies by executive discretion. If the Bush administration took counterterrorism as seriously as it took the abstraction of executive power, it would have thought ahead to its own departure from office. If it truly believed that its approach to counterterrorism was correct, then from the first day of its second term it would have engaged with Congress to create institutions to outlive any particular Presidency. It would have thought about the example of the Cold War and how a democracy deals with a genuine threat to a whole way of life. In retrospect, the democratic institutions of the Cold War did a remarkable job of balancing safety and liberty over decades; pure executive discretion cannot possibly promise the same. The administration having undertaken none of these things, US counterterrorism policy today flails without long-term strategic guidance or institutional stability.
Yet any future institutional settlement for counterterrorism inevitably bumps up against the contradictory impulses of government officials who confronted Goldsmith on his entry into the OLC and impelled his departure not many months later. The Terror Presidency says repeatedly that government policy after 9/11 was Bush's instruction to the then Attorney General, John Ashcroft: "Don't ever let this happen again". For Goldsmith, every Presidency for the foreseeable future will be characterized by an "unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so". No matter what might get said in the course of an election campaign, a Democratic administration once in office, "will be even more anxious than the current President to thwart the attack". In order to act as aggressively as the spirit of the age demands, however, government officials in the CIA and elsewhere must have confidence that apparently authorized aggressive actions that turn out to be mistaken, unnecessary, excessive or cause collateral damage to innocents will not be judged after the fact by a different set of standards than those going in. The criminal laws now in place make it very difficult, however, for operational officers of government, whether in detention, interrogation, surveillance or other covert activities, to have such confidence. The criminal laws use vague terms such as "inhumane", "degrading" or "humiliating" that practically invite after-the-fact revisionism, creating legal uncertainties that become insurmountable obstacles to action. Congress and the administration, in the seemingly perverse desire to have it both ways - encourage action but have the option to prosecute it afterwards - refuse to be specific as to what is actually permitted and not. Operational officials therefore respond rationally to the disincentives to act created by legal uncertainty.
Understanding the raison d'?tre of the torture memos issued by OLC in 2002, prior to Goldsmith's arrival, is nearly impossible without understanding their relationship to the vagaries of these criminal laws. The role of the OLC for some fifty years has been to give authoritative advice to the executive branch on legality and constitutionality. As Goldsmith notes, of necessity its opinions are often secret and not reviewable by any court. This is not as strange as it sounds. It is a part of the executive's obligation to "faithfully execute" the laws; to do that, the executive must know what the laws are and what they mean - a function always delegated, however, to the Attorney General, constitutionally obliged to give advice on "questions of law when required by the President of the United States". In practice, however, this might easily tempt lawyers in the OLC to write tendentious briefs to justify what the executive already intends to do, under circumstances in which judicial review may not be possible.
The OLC has so far insulated its lawyers from pressure by the executive. In matters of national security law, those OLC opinions operate as immunity against criminal prosecution of officials who act in good faith even if, ultimately, wrongly. It is almost impossible for the Justice Department to prosecute an official when that same department's OLC has blessed the conduct. The torture memos therefore purported to define torture for purposes of guiding what the executive might lawfully do. From the standpoint of CIA agents and other officials, these opinions offered immunity for their actions if they acted in reasonable reliance on them. The OLC in 2002 offered opinions on the definition of torture that certainly fulfilled this function; but they did so in ways that Goldsmith could not sustain, drafted as tendentious and conclusory briefs.
Worse, they did so not within bounds of what actual administration interrogation policy might be - waterboarding, for example - but instead within the maximal legal bounds offering the most iron-clad protection possible against criminal liability for anything. Goldsmith says that he was not disturbed by the exploration of the outermost limits of the law against torture as such, but these memos had a purpose fundamentally different from simply setting out boundaries. They more or less authorized anything short of Saddam's infamous meat grinder, and then, for good measure, added that in any case the President was not bound by any of this. The memos were disastrous because they left the understanding that these hypotheticals at the outer orbits of law constituted a statement of the government's actual policy proposals. Goldsmith observes that although the charge is frequently made that the Bush administration is "lawless", it is better understood as the most over-lawyered in US history.
Goldsmith was pilloried in press articles suggesting that he had authored the torture memos. Only later did it emerge that he had in fact withdrawn them. This has caused Goldsmith to be treated in the media as a kind of hero, a whistle-blower, though Goldsmith himself feels uncomfortable with "the Manichean tone . . . one sees so often when press and intellectuals criticize the Bush administration's attempts to balance liberty and security". His discomfort is evident from the fact that he is contributing his profits from this book to charity and that he has refrained from wholesale criticism of the Bush administration. As custodian of the OLC, Goldsmith believed he had a constitutional obligation to offer opinions that were not merely briefs in support of a preordained position. Withdrawing the torture memos also meant, as he well knew, withdrawing immunity upon which mid-tier government officials and agents had relied in good faith. Goldsmith's exit from government was not on account of his being fired; indeed, the Attorney General or the President could have overruled him and did not. No one stopped Jack Goldsmith from withdrawing the torture memos; but having "reversed or rescinded more OLC opinions that any of my predecessors", he writes, many people "lost faith in me. What else might I withdraw and when?"
Many people believe that the terror threat is overrated, the problem is to "manage" rather than defeat it. Goldsmith acknowledges this emerging view, and while rejecting it does not seek to refute it. America will live the Terror Presidency, Goldsmith says, with its dense moral ambiguities unfolding deep within a democracy's many necessary bureaucracies and institutions. The moral uncertainties, lest anyone mistake his meaning, are captured with brutal precision by Goldsmith's own last words on the torture memos:
"Some people have praised my part in withdrawing and starting to fix the interrogation opinions. But it is very easy to imagine a different world in which my withdrawal of the opinions led to a cessation of interrogations that future investigations made clear could have stopped an attack that killed thousands. In this possible world my actions would have looked pusillanimous and stupid, not brave."
(This is taken from my review of this book in the Times Literary Supplement, December 24, 2007.)
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