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[Jonathan Adler, September 4, 2007 at 9:40am] Trackbacks

The Conscience of Jack Goldsmith:

Next Sunday, the New York Times Magazine will feature a profile of Harvard Law Professor Jack Goldsmith written by Jeff Rosen. The profile centers on Goldsmth's work on international law and national security issues, and his brief tenure as the head of the Justice Department's Office of Legal Counsel during the Bush Administration. It also previews Goldsmith's forthcoming book, The Terror Presidency: Law and Judgment Inside the Bush Administration. Here's a brief taste:

Goldsmith told me that he has decided to speak publicly about his battles at the Justice Department because he hopes that "future presidents and people inside the executive branch can learn from our mistakes." In his view, American presidents for the foreseeable future will, like George W. Bush, face enormous pressure to be aggressive and pre-emptive in taking measures to prevent another terrorist attack in the United States. At the same time, Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?

In Goldsmith's view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, "go-it-alone" view of executive power. As Goldsmith sees it, this strategy has backfired. "They embraced this vision," he says, "because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it."

[Link via How Appealing.]

For those with an interest in the development of legal opinions related to counter-terrorism efforts, including the infamous "torture memos," the article is a must read. Among other things, it discusses Goldsmith's decision to withdraw some of the controversial memoranda. Goldsmith apparently withdrew more OLC legal opinions than any of his predecessors, including others related to the "War on Terror."

Goldsmith comes off very well in the article, as well he should. From what I understand of the internal debates on these issues, Goldsmith (and his deputy, Patrick Philbin) remained true to their conservative legal principles while resisting pressure to adopt ends-oriented conclusions in their legal analyses. The Administration could have used more political appointees like them throughout the Justice Department.

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[Ilya Somin, September 7, 2007 at 3:13am] Trackbacks

Resolving the Goldsmith Contradiction:

Some of Glenn Reynolds/Instapundit's readers claim that there is a contradiction between his claim that Jack Goldsmith's new book on the War On Terror criticizes excessive legal constraints on presidential wartime authority, and Jonathan Adler and Orin Kerr's characterization of Goldsmith as criticizing the Bush Administration's assertions of virtually unlimited presidential power in time of war.

In reality, there is no contradiction here. Glenn is right to point out that Goldsmith believes that pre-9/11 law constrained presidential wartime authority too much, and that some of the Bush Administration's efforts were undercut by those constraints. But Orin and Jonathan are also correct in pointing out that Goldsmith disapproved of the Bush Administration's response to the problem. Instead of working with Congress and the courts to change overly restrictive laws (Goldsmith's preferred strategy), the Administration chose to claim that they already had the power to do almost anything the president might want to, so long as it has even a remote connection to waging the war. As Goldsmith argues, this approach is bad law because the Constitution does in fact allow congressional and judicial restriction of the president's warmaking powers, and in some cases even requires it (for my take on these issues in a debate with John Yoo and others, see here).

Goldsmith also argues that the Bush Administration's approach was politically counterproductive and led to an actual diminution of the executive authority that the administration sought to enhance. Bush's overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power. As Goldsmith himself puts it, "They [the Bush Administration] embraced this vision because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it."

In sum, Goldsmith believes that the War on Terror has been hobbled by excessive legal constraints, but also argues that the Bush Administration's response to the problem was both legally dubious and politically counterproductive. In my view, he is largely correct on both counts.