Katyal on Goldsmith's Terror Presidency:

Georgetown law professor Neil Katyal has an extensive review of Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration in The New Republic. It should be available to non-subscribers who register, and it is worth a read. The review begins:

Jack Goldsmith's book is quite possibly the first sober account of the pressures that a post-9/11 president faces in the attempt to respond under the rule of law to the security threats facing this country. The book is largely a memoir of Goldsmith's service as an assistant attorney general for the Office of Legal Counsel (OLC), and of his terrible predicament as he found himself in the midst of an extraordinary debate among administration officials about how best to respond to the threat of terrorism. While OLC operates in relative obscurity for most Americans, it is in fact a genuinely significant institution of American government: all thorny legal questions within the executive branch are supposed to be submitted to this tiny elite office. OLC is the "decider" of these questions, and its judgments bind the entire executive branch.

In the fulfillment of his duties at OLC, Goldsmith said no to the White House on various matters, including torture and electronic surveillance. As a result, he soon left his Justice Department position and decamped to Harvard Law School. Now he has written this remarkable book--a book that anyone concerned about civil liberties in the war on terror must read. Goldsmith is not a civil libertarian. And this is not a kiss-and-tell book. It is a serious book with a serious lesson: that the war on terror is here to stay and will continue to pose extraordinary challenges to our current legal framework. Those inclined to think that the next administration will instantly shut down mass detention centers such as Guantanamo, or promptly terminate massive electronic surveillance under the Patriot Act, are likely to be sorely disappointed, no matter who sits in the Oval Office.

I agree with Katyal that The Terror Presidency is a must read, as much for those (like myself) who are inclined toward a more "conservative" view of international law and expansive view of executive power as anyone else. Combining first-hand accounts with thoughtful analysis and explanation of the relevant legal context, Goldsmith provides a quick tour of the central legal issues confronting post-9/11 counter-terrorism efforts. He also provides ample reason for those who have supported the administration on such issues to reconsider their position.

Among the many interesting points in Katyal's review is his cautionary discussion of the relevance of contemporary academic theories to the real world of governing and policy.

Reading Goldsmith's account of his experience of an academic theory applied to public policy in a time of crisis, one comes away with some rueful thoughts about the larger question of the relationship between the legal academy and the practice of law. The various events depicted in Goldsmith's book were set in motion by a wild notion dreamed up in America's law schools. Yoo's unitary-executive-on-steroids idea was not the first crazy theory to emerge from the legal academy; but it is likely the first to have achieved a secret stranglehold on the levers of government.

Law professors at elite universities today are predominantly theoreticians, paid to come up with large and original ideas. In the real world, if you came up with an idea like the John Yoo version of the unitary executive theory, you would get laughed out of town, because such a theory does not comply with the traditions and the values of this country. But in the legal academy, you get tenure. This trend in the modern law school, where practice has been subordinated to theory, has several consequences, but the most important one is that law professors can get sold on a theory with little understanding of how its implementation would work and what it would actually mean. There is little or no field-testing of these theories: legal scholars are rewarded mainly for cleverness and originality. The phenomenon is exacerbated by the fact that many top law schools are increasingly hiring faculty with no significant experience in legal or government practice.

Given the ideological leanings of most legal academics, I suspect this could be as great a problem, if not greater, in a prospective Democratic administration. It is a problem nonetheless.

I am not convinced by every point in Katyal's essay. For instance, I am not sure about his proposal to reform OLC. Still, those interested in these issues should read the review and, if they have not already done so, read Goldsmith's book.