Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: jfinn [at] wesleyan.edu.
Among the challenges to constitutional government linked to the Bush era are the rise of the surveillance state, harsh interrogations and torture, indefinite detention and the suspension of habeas corpus, extraordinary renditions, and military commissions. Many of the decisions to adopt these policies were taken unilaterally, without the counsel of Congress, the federal courts, or other agencies and actors in the executive branch. Each of them poses a challenge to constitutional principles and practices, but more important than any one of them is the underlying understanding of the office of the presidency they rest upon. Taken together, they represent the rise (return?) of the unitary (imperial?) presidency, an executive with extraordinary obligations and equally enormous powers. This is, to put it mildly, a robust theory of the presidency, a theory in which the president’s duty to protect us from terrorism supersedes every other obligation of the office, including the oath to support the Constitution.
Notwithstanding obvious difficulties from the standpoint of constitutional theory, there are a number of ways one might try to justify the location of such extraordinary obligations and powers in a single office. One might argue, for example, that a crisis releases the chief executive from constitutional limitations that apply in times of peace and normalcy. Or one might argue that the office of the chief executive comes equipped with a Lockean prerogative. Both sorts of claims, whatever their merits, claim a long lineage in constitutional theory and practice. Jack Goldsmith makes clear, however, that the Bush administration’s justification for the use of extraordinary powers was intricately caught up with a theory of newer vintage, sometimes called the theory of the unitary executive.
The unitary theory of the executive holds that Article 2 vests the whole of executive power in the office of the presidency and that such power is not shared with the other branches or even, necessarily, accountable to them. Part of Goldsmith’s book is a story about how and why one version of this theory took hold in the Bush administration. In particular, the version of the unitary presidency that appealed to some officials, such as David Addington, in Vice President Cheney’s office, and John Yoo, in Justice, is this: In times of crisis, the President’s duties and powers as Commander-in-Chief trump constitutional rules and federal laws that would ordinarily constrain the executive. Relying on this expansive understanding of executive power, Goldsmith’s predecessors at the Office of Legal [*957] Counsel in the Department of Justice (OLC), including Yoo and Jay Bybee, prepared several classified memos asserting that the president may legally ignore a range of federal statutes, including laws prohibiting torture, and electronic surveillance without a judicial order.
One of the chief arguments in favor of the unitary presidency is that it purports to center responsibility in a single, identifiable public office and thereby promotes democratic accountability. Ironically, however, Goldsmith’s narrative suggests that the centralizing of public accountability in a single location has had the precise opposite effect. The fear of being held to account has not only skewed policy decisions and the policy making process, it has also led the presidency to isolate itself from the inevitable scrutiny and accountability that would result from a process in which it shares power with congressional and judicial actors.
There are important questions about the constitutionality of almost all of the major policy decisions taken by the Bush administration in the global war on terror (GWOT). But the more important, larger question – the one that that applies not just to the eight years of the Bush administration but to the office of the presidency after Bush leaves – is whether the conception of the presidency that rests behind specific policy decisions can be reconciled with constitutional democracy. To answer it, we need first to think carefully about the kinds of pressures and reasons that gave rise to the terror presidency as an institutional form. We need to consider, too, the durability of those pressures: Are the institutional changes wrought by the terror presidency local to the Bush administration or more permanent?
II. Fear and the Rise of the Terror Presidency.
Much of Goldsmith’s record of his time at the Department of Justice addresses the role of the OLC in advising the President about the legality of a series of decisions made in the war on terrorism, including decisions concerning the application of the Geneva Conventions to detainees. Among Goldsmith’s first priorities was a review of earlier OLC opinions that considered the legality of several secret counterterrorism policies. Goldsmith learned quickly, and much to his distress, that some of these opinions “were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President” (p.10). Goldsmith’s explanation for the inferior quality of these opinions, some of which were prepared by his friend John Yoo, is the “extraordinary pressure” incumbent on the Office of Legal Counsel (OLC). “Fear explains why the OLC pushed the envelope” (p.166).
Fear provides the occasion for the extravagant claims of power that undergird the terror presidency. Moreover, these fears are a more or less permanent feature of a political landscape dominated by the war on terrorism, a war that is both grave and unending. Goldsmith identifies two kinds of fear – ”fear of not doing enough” and “fear of doing too much and ending up before a court or grand jury” (p.12), but there is a third he does not name: the fear of electoral or public accountability. Thus there are three distinct kinds of fear in play: Fear of the next attack, fear of laws that overly [*958] circumscribe presidential power, and, paradoxically, fear of electoral accountability.
a. Fear of the Next Attack.
Goldsmith argues that it is “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives” (p.72). Goldsmith offers up several examples of the pervasive effect of this kind of fear in the administration. In one case, after Goldsmith advised Addington against the legality of a particular policy, Addington responded: “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” Elsewhere, Goldsmith describes the impact of the “threat matrix.” Delivered every morning to the president, the matrix “lists every threat directed at the United States in the past 24 hours.” The matrix, Goldsmith notes, can be “many dozen pages long” (p.71).
The key point, however, is not that the administration is so keenly aware of the threats facing the United States. It is, instead, the administration’s view that these threats are grave, unprecedented, and that “success” in responding to them means preventing all of them. (Goldsmith notes that this definition of policy success was described by Suskind as the “one per cent doctrine” (Suskind 2006).) Goldsmith captures this sense in a quote from Jim Baker, who likened the wear on terrorism to a soccer game: “the task of stopping our enemy to a goalie in a soccer game who ‘must stop every shot,’” for if the enemy “‘scores a single goal,’” the terrorists succeed. To make matters worse, “‘the goalie cannot see the ball – it is invisible. So are the players – he doesn’t know how many there are, or where they are, or what they look like.’“ Indeed, the invisible players might shoot the ball “‘from the front of the goal, or from the back, or from some other direction – the goalie just doesn’t know’” (p.74). Such an approach, Baker admitted, can lead one to become “paranoid” and lead to “obsession” (p.72). It is far from clear this is a sensible strategy for coping with uncertainty and risk in general or with the threat of terrorism in particular (Macklem et al. 2001). Indeed, failure (in the sense that not all attacks can be prevented) under such a definition is a near inevitability, and the fear of failure, Goldsmith concludes, is a prime factor in the administration’s formulation of antiterrorism policy.
b. Fear and Lawfare.
A second kind of “fear” also appears in Goldsmith’s account. Goldsmith argues that the presidency is hobbled, if not crippled, by law. Goldsmith pictures a presidency cabined and enfeebled by a thicket of rules, statutes, and judicial decisions that, far from clarifying what the law permits and prescribes in the GWOT, instead confuses and cripples the executive branch.
Goldsmith identifies two sets of legal restraints upon the presidency – domestic law and international treaties and conventions. Domestic legal constraints include the War Powers Act of 1973, the Foreign Intelligence Surveillance Act of 1978, and the Torture Act of 1994, all of which, Goldsmith argues, unwisely confine presidential war power.
One of the chief difficulties with such laws, he argues, is their vagueness. The [*959] lack of clarity opens up the possibility that national security officials might later be prosecuted. Goldsmith reports that the Bush administration was concerned about the prospect of “lawfare” or the possibility of legal prosecution if they ran afoul of any one of a great many legal restrictions upon the presidency. The fear of prosecution was not so much a concern that such actions might occur in John Ashcroft’s term of office, but rather “in a subsequent administration of a different party” (p.68).
Goldsmith also argues that a snare of international obligations and commitments similarly circumscribe the presidency. After World War II, the international community embraced a broad range of conventions, such as the Geneva Conventions on Prisoners of War, that assert international jurisdiction over human-rights violations. (Goldsmith notes, in this regard, that Addington once advised Secretary of Defense Rumsfeld that international law is “a tool of the weak” and a threat to the interests of the United States.) Goldsmith writes at some length about the kinds of concerns in the administration generated by the International Criminal Court, and recounts his own memo on the “judicialization of international politics,” written while he was at Defense and later circulated to the National Security Council. (Goldsmith writes that “Yoo and I were a part of conservative intellectuals – dubbed ‘new sovereigntists’ in FOREIGN AFFAIRS magazine – who were skeptical about the creeping influence of international law on American law”(p.21).)
The proliferation of domestic and international legal constraints upon the executive branch has caused a profound transformation in the environment that surrounds the presidency. Goldsmith argues that past presidents, such as Lincoln and Roosevelt, were largely free of such restraints. They were free to respond to crises without the fear of subsequent indictment. More important, perhaps, is that these new rules have contributed to a new legal culture, “reinforced by the swarm of lawyers that rose up in the military and intelligence establishment” (p.91), a culture dominated by “risk-averse legalism” (p.93). Goldsmith concludes that the restraints on the presidency enacted after Watergate constitute a substantial obstacle to the Bush administration’s effort to respond to September 11. “The administration,” he writes, “has been strangled by law, and since September 11, 2001, this war has been lawyered to death” (p.69).
How did the Bush administration respond to these overbearing legal restrictions on presidential power, many of which would have required the president to act in cooperation with Congress? Goldsmith claims that Addington and others relied on a series of poorly argued, secret legal memos to simply sidestep them. Moreover, in Goldsmith’s view, Addington, and his superior, Cheney, deliberately rejected the counsel of those both inside and outside the administration, who had urged cooperation and consultation with Congress.
c. Fear and Politics.
Finally, Goldsmith alludes to another kind of fear prompted by the war on terrorism – the fear of electoral [*960] accountability, or of being held to account for failure to prevent the next attack. The clearest evidence for both the existence and the importance of this fear is the simple fact that most of the OLC opinions Goldsmith addresses were prepared in secret and classified. The purpose of such secrecy was precisely to evade accountability, whether in the Attorney General’s office, elsewhere in executive branch, or outside of it.
The distorting effects of this kind of fear on antiterrorism decision-making in the Bush administration should be of special interest to students of the unitary theory of the presidency, because it suggests an elemental flaw in one of the theory’s central premises. One of the advantages of the theory of the unitary executive is that it claims to locate popular accountability in the president. In other words, a president may not evade accountability for policy by claiming that his hands are unnecessarily tied by the demands of Congress or the federal courts. The president alone is responsible. But in Goldsmith’s view, the administration was unwilling to abide such scrutiny, in part because it fears the public no longer shares its sense of the urgency or importance of the threat. “The American public largely shared the government’s anxieties on 9/11. But since that time public concern about the terror threat has waned” (p.187). Elsewhere, Goldsmith observes that “it is natural for public vigilance to fade over time, even if to the President’s eye the threat has not faded one bit” (p.187). Goldsmith’s response to diminishing public concern is to urge the President “to educate the public about the threat without unduly scaring it. . . . And he must convince the public that he is acting in good faith to protect us and is not acting at our expense to enhance or protect himself” (p.192).
And yet in large measure it is precisely the fear of shouldering public accountability that explains overreaction to exaggerated fears. It is the same fear that leads, too, to unilateral decision-making, to decisions taken in secret and without the consult of other branches. Instead of concentrating responsibility in a single office – and in so doing advancing democratic accountability – the unitary theory of the presidency has had the opposite effect, of obscuring who bears responsibility by shielding decision making responsibility from the public and by vitiating the separation of powers. The unitary theory of the presidency has given us a presidency enshrouded in secrecy, entrusted with profound powers that cannot be held to account by co-ordinate constitutional actors.
III. Reconciling the Terror Presidency and the Constitution.
In Chapter Six, Goldsmith takes up directly the “failures” of the Bush administration. To put it simply, individual policy mistakes all trace to a larger failure of political strategy. In Goldsmith’s view, most if not all of the president’s policy decisions in the GWOT should have been made on the basis of greater consultation with Congress. They would thus have been considerably less vulnerable, both politically and legally.
It is here that Goldsmith comes closest to his position as an academic and not as a lawyer in the OLC. Goldsmith draws upon the presidencies of Lincoln and, especially, Roosevelt to think more expansively about the terror presidency [*961] and its relationship to the larger constitutional order. His comparison with Roosevelt starts with a claim that the challenges facing the terror presidency are similar to those Roosevelt confronted: “Franklin Roosevelt faced a similar set of challenges in the eighteen months prior to the Unites States’ entry into World War II in December 1941” (p.192). The basis for this comparison is perhaps questionable, itself another misjudgment occasioned by fear. It is far from clear that the challenges are even remotely similar, and Goldsmith does not do much to justify the comparison. But Goldsmith is right to think there are lessons to be had in Roosevelt’s use of the prerogative power. Goldsmith notes, for example, that neither Lincoln nor Roosevelt confronted the fear of lawfare; instead, they operated in environments largely free of the legal constraints that hobble the terror presidency.
Goldsmith attributes the “successes” of the Roosevelt presidency’s claim for and use of extraordinary powers to careful and widespread consultation with Congress and with potential critics of his administration. The failures of the Bush administration, by contrast, are grounded in a view of the presidency that regards consultation with other actors – indeed, voluntary compliance with the law – as an unwelcome constraint on presidential power. To consult, Goldsmith suggests, was a sign of weakness: “The Bush administration has operated on an entirely different conception of power that relies on minimal deliberation, unilateral action, and legalistic defense. This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise” (p.205).
At this point, however, the argument is not fully explained. Goldsmith never actually identifies how the absence of law promoted Roosevelt’s successful use of expansive emergency powers (largely by cooperating with co-ordinate constitutional actors), or how its presence forestalled the Bush administration from pursuing a similar path.
In some ways, Goldsmith’s sense – that Bush should have sought the active cooperation of Congress and other political actors – comports neatly with an understanding of constitutionalism that is based on “justification” rather than “invariance” (Finn 1991). But the failure of Bush to consult is, for Goldsmith, an unfortunate failure of political leadership, a method of governing that is flawed chiefly because it failed. It is flawed, too, because it left the office of the presidency weaker: “They borrowed against the power of future presidencies – presidencies that, at least until the next attack, and probably even following one, will be viewed by Congress and the courts, whose assistance they need, with a harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years” (p.140).
Goldsmith’s primary criticism of Bush, then, is not that the President acted unconstitutionally or illegally but rather only that he acted unwisely. The lesson we are to take away is that future presidents – all of which will be terror presidencies – should consult more broadly and more frequently with other constitutional actors. But Goldsmith’s recommendation (that future presidents consult, or give reasons), is driven not by any commitment to the rule of law, or [*962] to constitutional values, but rather simply and only by a desire to secure presidential power. In that respect, the differences between Goldsmith and Addington and Yoo are simply prudential. If the President’s policy agenda could be better advanced without such consultation and cooperation, there would be nothing in Goldsmith’s prescriptions – nothing in the law or the Constitution – that would or should foreclose that approach.
There are, of course, other counterweights to the terror presidency, such as judicial review. Indeed, one could argue that the terror presidency has already run up against a serious set of judicially imposed restraints (Dworkin 2008). On the other hand, it is far from clear that cases like RASUL, HAMDI, HAMDEN and BOUMEDIENE constitute unequivocal evidence of the efficacy of judicial review. As I have suggested elsewhere, “Although the Court appears to have insisted upon some measure of judicial accountability, it has also authorized important and far reaching departures from what the rule of aw requires in ordinary criminal cases. . . . The overall import of the decisions is to authorize a separate system of jurisprudence . . . for offenders designated by the government as enemy combatants” (Finn, forthcoming). Moreover, as Goldsmith acknowledges, the Court’s decisions in HAMDI and HAMDEN were followed by congressional actions that pretty much gave the President whatever he asked for, including authorization to pursue aspects of the military commissions that the Supreme Court had invalidated. Other counterweights to the terror presidency might include the kinds of accountability occasioned by elections, the free and open public dialogue guaranteed by the First Amendment, and a reinvigorated commitment to the separation of powers. Unfortunately, Goldsmith does not take up the question of whether or how these mechanisms might constrain the terror presidency.
In the end, Goldsmith’s recommendations are grounded not in the rule of law, or the Constitution, but rather in their utility as a mechanism for enhancing the powers of the terror presidency. Nowhere does Goldsmith really address the fundamental question of whether the terror presidency can be reconciled with our commitment to the Constitution. Instead, we get only a bromide: “In the permanent emergency we face, the best hope for preserving both our security and our liberty is to select leaders who will be beholden to constitutional values even when they are forced to depart from constitutional traditions” (p.216).
A long time ago, when the dangers terrorism poses for constitutional governments seemed safely a matter of history, I wrote that “Even in a crisis, there is a sense in which constitutionalism, government based on reason and limited by the rule of law rather than government by will or self-interest, can persist” (Finn 1991, p.28.) What is necessary in a crisis, I argued then and still believe, is not invariance from strict constitutional limitations on the use of power, but rather the project of public justification. Justification as a constitutional project is necessarily an activity that takes place in concert with other constitutional actors; it thus demands, as a constitutional obligation, [*963] that executives consult widely and broadly with other constitutional actors. It prohibits as unconstitutional claims of exclusive extraordinary power, whether grounded in theories of prerogative or the unitary presidency (Finn 1991, pp.28-40). They are not matters of political convenience or simply stratagems for increasing presidential power. They demand, instead, that the pursuit of power, no matter how nobly intentioned or how authentic the need, must conform to certain irreducible constitutional constraints. If antiterrorism policies fail to comply with these principles, the failure is not, as Goldsmith suggests, a mistaken approach of political style. It is a failure of constitutional governance.
Can constitutional government survive the terror presidency? Constitutionalism, Noah Webster once wrote, is “the empire of reason.” What constitutionalism demands is “a commitment to a public life premised upon the public articulation of reasons” (Finn 1991, p.30). Fear is an enemy of reason, and succumbing to it seems to answer in the negative Hamilton’s searching question, in Federalist One, of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force” (Rossiter 1961). There is irony, therefore, in Goldsmith’s use of Roosevelt as a role model for how a strong presidency should function in a constitutional democracy. The irony is not that Roosevelt’s critics, like Bush’s, accused him of embracing dictatorial powers and disregarding constitutional restraints. The irony is that the Terror Presidency owes its existence to and requires fear. And it is the persistent durability of fear that explains why we should be careful not to assume that the constitutional challenges of the last eight years are unique to the Bush administration: “For generations,” Goldsmith warns, “the Terror Presidency will be characterized by unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so” (p.189).
Dworkin, Ronald. 2008. “Why it was a Great Victory.” http://www.nybooks.com/articles/21711 (August 14, 2008).
Finn, John E. 1991. CONSTITUTIONS IN CRISIS: POLITICAL VIOLENCE AND THE RULE OF LAW. New York: Oxford University Press.
Finn, John E. (forthcoming) “Counter Terrorism Regimes and the Rule of Law.” forthcoming in Martha Crenshaw, ed., THE CONSEQUENCES OF COUNTERTERRORIST POLICIES IN DEMOCRACIES. (New York; Russell age Foundation, forthcoming).
Mackle, Patrick, Ronald J. Daniels, Kent Roach (eds). 2001. THE SECURITY OF FREEDOM. Toronto: University of Toronto Press.
Rossiter, Clinton, ed. 1961. THE FEDERALIST PAPERS. New York: New American Library. [*964]
Rossiter, Clinton. 1948. CONSTITUTIONAL DICTATORSHIP. Princeton: Princeton University Press.
Schlesinger, Arthur. Jr. 1973. THE IMPERIAL PRESIDENCY. New York: Popular Library.
Suskind, Ron. 2006. THE ONE PERCENT DOCTRINE: DEEP INSIDE AMERICA’S PURSUIT OF ITS ENEMIES SINCE 9/11. New York: Simon & Schuster.
Yoo, John. 2006. THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. Chicago: University of Chicago Press.
BOUMEDIENE v. BUSH, 553 U.S.___ (2008).
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
RASUL v. BUSH, 542 U.S. 466 (2004).
© Copyright 2008 by the author, John E. Finn.
The Terror Presidency: Law and Judgment Inside the Bush Administration