Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College. Email: tobias.gibson [at] westminster-mo.edu.
Jack Goldsmith, currently of Harvard Law School and former Assistant Attorney General, Office of Legal Counsel, offers an interesting juxtaposition to the conventional wisdom of academics and the public that the presidency has centralized its power, unabated, since the reaction to the terrorist attacks of 9/11.
Goldsmith’s willingness to offer a contrary view should come as no surprise. He first rose to national prominence based on his brief time in the Office of Legal Counsel, during which he famously withdrew the so-called “Torture Memo” penned by John Yoo (Klaidman, Taylor and Thomas, 2006). In The Terror Presidency (2007), Goldsmith chronicles his time at OLC, but more importantly offers a thesis that was controversial at the time: President Bush’s attempts to create a unitary president undermined the powers of the presidency, in large part due to his reliance on the “hard powers” of the presidency which, ironically, led to a diminished level of hard power for the president (Goldsmith 2007, p.215).
Power and Constraint takes this finding to the next level, and in it Goldsmith argues that there were several constraining factors faced by President Bush, and currently by President Obama. Although Goldsmith discusses several forces which acted to rein in the presidency, the focus of this review is the roles that law, lawyers and courts played.
There has been a great deal of scholarship which argues that President Bush, and even President Obama, acted to centralize effective counter terrorism power to within the White House, and to the exclusion of the other “co-equal” branches of government. Goldsmith takes this view to task.
The introduction reminds the reader that the Constitution created a system of checks and balances, and contrary to the conventional wisdom, Goldsmith claims that Congress and the courts have “pushed back harder against the Commander in Chief than in any other war in American history” (p.xi). Moreover, the pushback was instigated and buttressed by a legion of attorneys working inside and outside of government.
Among the interesting discussions in the first chapter, “The New Normal,” is Harold Koh’s altered view on counterterrorism detention practices. Goldsmith notes that Koh, the former dean of Yale Law School, “had long railed” against Bush era practices including military commissions, extraordinary rendition and the continued use of Guantanamo Bay to detain suspected terrorists beyond the reach of legal institutions (p.20). However, when Koh entered the Obama administration as Legal Advisor to the State Department, he began to support many of the policies that he had previously sought to overturn, in part perhaps because he discovered that “[t]he making of U.S. foreign policy is infinitely harder than it looks from the ivory tower” (p.22).
In chapter 2, “Forces Bigger than the President,” Goldsmith offers a brief history of the separated war powers, and the limitations they placed on a wartime president. A quick walk through of Jefferson, Lincoln and Wilson shows that during war, presidents argued for and received vast powers to engage the enemy, but after the war was over, the traditional limitations on presidential power were retrenched.
This pattern failed in the wake of the World War II and the ride of the Cold War. Truman was the first president to send troops abroad, and to claim that Congress did not have the power to stop him from doing so. Presidents from Truman to Nixon led to the rise of what would become known as the “imperial Presidency,” acting nearly unfettered until backlash from Nixon’s Watergate scandal and questionable actions during the Vietnam War led Congress to again rise to the challenge of impeding the centralization and augmentation of presidential power. As Goldsmith notes, these actions, including the War Powers Resolution and the Foreign Intelligence Surveillance Act ( among several others), which seemed to work in the short term were then seemingly discarded during military actions in several locations. The popular consensus was that the reforms had failed.
Instead, according to Goldsmith, these congressional actions laid the groundwork for a formidable backlash to the presidency in the wake of 9/11 and unilateral actions. Vice President Dick Cheney famously stated that the presidency had been weakened in the decades between the Nixon and Bush (II) presidencies, and Goldsmith readily agrees. Indeed, he argues, when Bush tried to take several actions that previous commanders in chief had taken, including surveillance, detention and interrogation, he was “hemmed in by legal restrictions in the decades before 9/11” (p.37).
The reaction by Congress and the courts has continued into the Obama administration, in part because the new president continued several policies implemented under Bush. As but one example of the fettered president, despite a long history of presidents transferring detained enemies around the world, including to the United States mainland, Congress reacted forcefully to prevent the transfer of Gitmo detainees to prisons in the United States (see Johnson, Gibbons and Gibson, 2010).
Part II of the book is the most relevant to the judicial and legal scholars. In this section, Goldsmith outlines the manner in which law, lawyers and courts have most impacted the president., A thorough reading of the book will allow the reader to see the way that lawyers from outside government, in particular for the American Civil Liberties Union and the Center for Constitutional Rights, sought (and won) important limitations on the presidency. However,for the sake of brevity in this review, I will focus on the attorneys and institutions within government.
In the aptly titled chapter “Spies Under a Government Microscope,” Goldsmith details the rise of CIA lawyers and the impact on actions taken by the Agency. In the mid-1970’s, the CIA had eight attorneys. By 2010, there were approximately 150 attorneys at CIA. More than the incredible increase in the size of the legal staff was the transition in outlook. Accordingly, “the CIA legal staff … transformed itself from being indifferent to the law to being preoccupied by it” (p.87). The reasons for this are driven by the abuse of the Agency by President Nixon and the Iran-Contra Scandal during the Reagan administration. In the wake of these events, Congress acted to require accountability within the executive branch, and fettered the president by requiring that he provide findings for covert actions and that covert action abide by American law. As a result, CIA and Director of National Intelligence lawyers vet every proposed covert action. The result is that few of the proposals are carried out, because most of them get “lawyerized to death” (John Rizzo, as quoted in Goldsmith, p.89). In other words, there exists a “second face of power” (Bachrach and Baratz; Cameron, chapter 4), in which the status quo is continued because the president’s, or his agent’s, preferences are contrary to the best legal understanding of the attorneys charged with vetting the policy proposal.
Another reason that attorneys have an increased role in policy making at CIA is that Congress has delegated oversight of intelligence actions to these bureaucrats; indeed, Goldsmith describes CIA attorneys as the “primary enforcers” of congressional rules (see also McCubbins and Schwartz). Despite fears that these attorneys might be susceptible to “going native,” Goldsmith argues that this is not the case because of the bitter lessons that bad legal advice has taught these attorneys. In other words, risk aversion has been institutionalized at CIA.
“Warrior-Lawyers” may be the best chapter in the book. In it, Goldsmith introduces the disparity in war making prior to the end of the Vietnam War. As Goldsmith notes, cities were firebombed in Europe and atomic bombs were dropped on Japan with nary an attorney consulted about the “legality” of the action. In the wake of the Vietnam War, at which point the U.S. military was disheartened and in ill-repute, part of the solution to professionalize the armed forces was a focus on legal action. The military began to teach each soldier about actions allowed by law. While there are potential shortcomings to this, which are ably discussed in the chapter, leadership appreciated the empowering aspect of the law. According to Brigadier General Mark Martins, a longtime advisor and confidant to retired General David Petraeus, “the rule of law is important because it legitimates violent conduct that otherwise would be both criminal and dishonorable” (p.128).
Although following the rule of law empowered the military in some ways, Goldsmith also notes that it worked to limit the military as well. Congress passed hundreds of laws in the decades following Vietnam which served to limit the range of accepted military actions. Moreover, there was a rise in the impact of international law on military actions. For example, although the United States has never adopted the revised Geneva Convention treaties of the 1970’s, it is nonetheless limited by the complexities of global legal expectations based on these treaties. Additionally, international courts claim jurisdiction in several nations where the U.S. military acts.
Targeting decisions are also law-laden. Although the decision itself is in the hands of a commander, lawyers are advised throughout the process, from intelligence gathering used to find and identify targets to whether final targeting is legal. Goldsmith also asserts that the operational lawyer helps to ensure that the targeted attack complies with domestic laws as well. So strong is this limit, these attorneys have the power to veto a targeted attack throughout the decision making process.
Outside the military, this attention to legal details is also evident, even in the most controversial of actions, such as the use of an unmanned aerial vehicle (UAV; or “drone”) in killing American citizen and Islamic cleric Anwar al-Awlaki. The Attorney General, through the Office of Legal Counsel, gave legal consent. State Department legal advisor Harold Koh, too, has publicly supported the action (McKelvey).
Goldsmith also details the rise of what he calls “The GTMO Bar,” a group of attorneys who impacted the detention methods of “enemy combatants” held at Guantanamo Bay, Cuba. For example, the Center for Constitutional Rights filed a lawsuit for Shafiq Rasul, a Briton held without habeas corpus rights, because President Bush had suspended them in his “Military Order Number 1.” The CCR argued that this suspension of rights was unconstitutional. The initial reaction was muted, or even non-existent. Five months after the lawsuit was filed, it was dismissed in federal court. However, in June, 2004, the Supreme Court reversed the dismissal and ruled that Rasul and the other detainees could have their day in court.
Goldsmith argues that this was extraordinary, given the seeming precedent of ex parte Quirin and Eisentrager that would allow the suspension of habeas. Perhaps more extraordinary, however is the impact of the decision. In the immediate aftermath of the Court’s mandate, the Bush administration set up Combatant Status Review Tribunals to review the legal standing of each detainee. Steps were also taken to limit the detainees to only those who posed significant threat to the nation. As result of these actions, “…judicial review …contributed to the discharge of 308 detainees from GTMO” (p.179). This is certainly a nontrivial contribution.
Moreover, following Rasul, the Supreme Court, empowered in a way not seen during past wartime, issued decisions in Hamdi, Hamdan, and Boumediene, all of which further limited presidential powers. Boumediene was the first time in U.S. history that the High Court ruled a wartime measure, the Military Commissions Act of 2006 unconstitutional, meaning that there was no recourse for the elected branches to overturn the action.
In conclusion, this book is highly recommended. It is interesting, well written and should be appreciated by a wide audience. The details of the impact of attorneys, courts and the Constitution are far deeper and richer than this review can adequately illustrate. Some topics that I have not covered include: the role of the Judge Advocate General in the policy debates and outcomes; the major role of international human rights legal education; and the interesting, and the underreported role of Senator Lindsey Graham, himself a JAG, in detailing the legal limits of detention in the wake of the Rasul decision. Perhaps more importantly, the book illustrates the importance of understanding the roles of multiple actors in the development and application of national security policy.
Bachrach, Peter and Morton S. Baratz. 1962. "Two Faces of Power." American Political Science Review 56: 947-952.
Cameron, Charles M. 2000. Veto Bargaining: Presidents and the Politics of Negative Power. New York: Cambridge University Press.
Goldsmith, Jack. 2009. The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: W.W. Norton.
Johnson, Alexandra D., Meredith Gibbons, and Tobias T. Gibson. 2010. “Rethinking Unilateral Powers in the Obama Administration.” PRG Report XXXII (2): 13-15.
Klaidman, Daniel, Stuart Taylor, Jr. and Evan Thomas. 2006. “Palace Revolt.” Newsweek February 6, 2006.
McCubbins, Mathew D. and Thomas Schwartz. 1984. “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms.” American Journal of Political Science (28): 165-179.
McKelvey, Tara. April 8, 2012. “Interview with Harold Koh, Obama's Defender of Drone Strikes.” http://www.thedailybeast.com/articles/2012/04/08/interview-with-harold-koh-obama-s-defender-of-drone-strikes.html (accessed August 15, 2012).
Boumediene v. Bush, 553 U.S. 723 (2008).
Ex Parte Quirin 317 U.S. 1 (1942).
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Johnson v. Eisentrager, 339 U.S. 763 (1950).
Copyright by the Author, Tobias T. Gibson.