The following article by Lewis Rice appears in the Summer 2012 issue of the Harvard Law Bulletin.
As Barack Obama ’91 was making criticism of Bush administration policies on terrorism a centerpiece of his campaign for the presidency in 2008, Jack Goldsmith offered a prediction: The next president, even if it were Obama, would not undo those policies. One of the key and underappreciated reasons, he wrote in a spring 2008 magazine article, was that “many controversial Bush administration policies have already been revised to satisfy congressional and judicial critics.”
In his new book, "Power and Constraint: The Accountable Presidency after 9/11" (Norton, 2012), Goldsmith examines why his prediction largely came true, pointing to the forces outside the presidency—including Congress, courts, lawyers, the media and nongovernmental organizations—that have shaped the counterterrorism policies of two administrations. Based on dozens of interviews with key players inside and outside government and informed by his own experience in the Office of Legal Counsel in the Bush administration, the book refutes the notion that the administration’s attempts to expand presidential powers went unchallenged.
“I thought that the conventional wisdom that the separation of powers was broken was wrong,” he said in an interview. “I also thought that the conventional wisdom about why Obama continued Bush’s policies—mainly because he was weak-willed—was wrong.”
Goldsmith argues that then-candidate Obama was actually criticizing policies that had already been changed by the latter period of the Bush administration, including policies on interrogation, detention, surveillance and military commissions. Even a policy on which Obama seemingly reversed course—ordering the closing of secret prisons—held little meaning, he notes, as these sites were nearly empty during the last two years of the Bush presidency.
“The main difference between Bush and Obama is that Obama truly has a different attitude toward his powers,” Goldsmith said. “He exercises his powers aggressively, [but] he pays much more attention to public justifications for the legality of what he is doing.”
As Goldsmith outlines in the book, since 9/11, many different interests are watching and responding to the legality of presidential actions, pushing back harder than at any time of war in American history. They include journalists who defied Bush administration requests not to publish reports on secret prisons and who exposed the government’s warrantless wiretapping program. Among other examples are human rights organizations such as the Center for Constitutional Rights, whose litigation on behalf of Guantánamo detainees resulted in Supreme Court victories that limited presidential power and granted increased rights to enemy combatants, and inspectors general, whose independent reviews increased the transparency of government practices. The book also highlights the growing role of military lawyers in ensuring that the rule of law is followed in operations (an HLS alum, Brig. Gen. Mark Martins ’90, chief prosecutor in the Office of Military Commissions, is prominently featured).
In many ways, the constraining forces can help presidents gain credibility and hone effectiveness on national security issues, according to Goldsmith. The strategic use of law, he writes, “resulted in better planning, better policies, self-corrections, and legitimated and empowered presidential action.” In addition, the pushback that realigned Bush administration policies “essentially blessed them in ways that Barack Obama found difficult to resist.” At the same time, he notes that the accountability system can burden justified executive action or cause potentially harmful disclosures. The result is “a harmonious system of mutual frustration,” he writes.
Though it’s impossible to know with certainty whether the pendulum has swung too far toward presidential power or constraint, Goldsmith said the country has struck a sensible balance based on the information the public has. And, he added, one of the lessons of the book is that the country can change when it gets new information. He knows firsthand from his time in government, which he chronicled in his previous book, “The Terror Presidency,” that complete information is not always available when the president must make national security decisions.
“The fact of the matter is that presidents, especially in times of war and national security crises, do try to expand their powers because their responsibilities increase,” he said. “And it’s the other institutions that decide whether the presidency goes too far.”
Click here for a matrix of HLS alumni in the national security field since 9/11.