Jack Goldsmith
THE TERROR PRESIDENCY
Justice and judgment inside the Bush administration
256pp. W. W. Norton and Company. £15.99.
978 0 393 06550 3
Jack Goldsmith is a widely admired professor now at Harvard Law School who
spent ten months in the Bush administration during 2003–04 as the head of a
special Justice Department office responsible for giving authoritative
interpretations of law to the executive branch. It was the Office of Legal
Counsel that, in 2002, produced the infamous “torture memos”, and that, the
following year under Goldsmith, took them back again. Now it is again in the
news, as controversial memos regarding harsh interrogation issued by one of
Goldsmith’s OLC successors surface in the newspapers. Goldsmith’s
part-memoir, part-historical analysis, The Terror Presidency, examines not
just the Bush administration’s “war on terror”, but the enormous pressures
and constraints on future American Presidencies confronting the threat of
terrorism. The book is superb – deceptively casual and eminently readable,
yet profoundly considered and argued.
Goldsmith is a conservative; “I am not”, he says unequivocally, “a civil
libertarian.” He expresses no discomfort with the Bush administration’s
fundamental approach to 9/11 – he believes, that the United States is indeed
“at war with terrorists”. Looking forward to future Presidential
administrations, he sees a need to reshape the struggle against terrorism in
ways that get beyond the permanent use of emergency presidential powers; he
acknowledges that the terminology of “war on terror” has lost its utility,
but he urges retaining the strategic understanding of a war against
transnational terrorism even if its legal contours shift. The difficulty
faced by Goldsmith, however, was that his role in government was to give
binding legal advice to an executive branch hemmed in by a thicket of laws,
complicated, vague and often imposing personal criminal liability on
officials. Goldsmith believes these laws, mostly dating from the 1970s, are
historically unprecedented, sometimes constitutionally dubious, and leave
little room for manoeuvre to government officials who are under enormous
pressures both to keep the population safe from terrorism and to protect
rights and liberties by not acting aggressively. The threat of criminal
enforcement naturally disinclines lower-level officials – in particular, the
ones who actually carry out policy – to take the personal legal risks of
criminal prosecution that the aggressive pursuit of counter-terrorism might
entail.
The Terror Presidency reaches beyond personal memoir to offer a historical
comparison of the legal powers available to Presidents in time of war and
emergency, under Lincoln, Roosevelt and Bush. Lincoln and Roosevelt
operated, of course, under immensely fewer legal constraints than the Bush
administration. Lincoln undertook many legally dubious actions, suspending
habeas corpus, for example, and imprisoning large numbers of suspected
Southern sympathizers without legal recourse; Roosevelt, under the thinnest
cover of complaisant legal opinions issued by his Attorney General, Robert
Jackson, ignored laws passed by Congress explicitly aimed at keeping the
United States out of war. He could not even plead the exigencies of war at
that point, because war was precisely what Congress had legislated to avoid.
But even before 9/11, the Bush administration – particularly Vice President
Dick Cheney, through his mysterious counsel and chief of staff, the ascetic,
iron-willed David Addington – was committed to rolling back what it saw as
the dangerous erosion of Presidential power since the Vietnam war. After
9/11, success in the war on terror was viewed as identical to the
restoration of executive discretion. Comparing Lincoln and Roosevelt to Bush
is therefore to say that they had far more discretionary power, and that
this discretionary power needed to return to the Presidency.
Goldsmith’s point is subtler, however. It was not so much executive discretion
that allowed Lincoln and Roosevelt to act decisively. It was, rather, that
while each was politically attuned to Congress’s sensitivities, because they
and their subordinates did not face today’s Congressional restrictions on
Presidential discretion, they thus had a “less pressing need to assert
presidential prerogatives vis-à-vis Congress”. Lincoln and Roosevelt were
politically wary of discretion’s possible excesses; and they could direct
themselves wholly to the substantive struggles at hand.
Lincoln and Roosevelt, unlike the Bush administration, anticipated the famous
dictum of Justice Jackson that the executive achieves its maximum power
acting in conjunction with the other political branch of government,
Congress. Lincoln, ever the lawyer, remained “anxious about his
unprecedented assertions of presidential power” and “almost always sought
congressional support”. Roosevelt on certain crucial issues did not go to
Congress, but still he did not use his prerogatives as “part of an
aggressive program to expand presidential power for its own sake”. By
contrast, Cheney and Addington “shared a commitment to expanding
presidential power” that – although in their eyes was necessarily
co-extensive with prevailing in the war on terror – to outside observers
forced a choice at key moments between the war on terror and the abstract
principle of executive power for its own sake. In this, Lincoln and
Roosevelt each chose differently, opting not to go it alone, but instead to
work with Congress towards an agreement that maximized Presidential power
because it would represent the two political branches of government. The
Bush administration has adamantly refused to follow this course, for the
foolish lawyerly reason that asking Congress to roll back its fettering laws
would imply an acceptance that Congress had such fettering powers in the
first place.
The grand irony, 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 Guantánamo, 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’être 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.
Kenneth Anderson teaches law at American University, Washington DC, and
is Research Fellow of the Hoover Institution and a member of its Task Force
on National Security and Law.
