Is Jack Goldsmith Too Optimistic?

The excerpts from Jack Goldsmith’s afterword to The Terror Presidency, like the book itself, raise extremely important questions of the proper allocation of power among the branches in the face of severe national security threats. The issue, less academically: does the President have the power to defend the nation effectively against our enemies, especially those who may acquire and use weapons of mass destruction against the U.S. and its allies? And, are the liberties of U.S. citizens otherwise protected? 

The excerpt posted April 14 edges up to an answer that current arrangements have hamstrung the Executive, putting the nation at risk. The second, posted the next day, takes some comfort in the Obama Administration’s continuation of certain counter-terrorism policies. It suggests that the right balance has emerged from “the surprising general consensus on how to meet this challenge among the late Bush Administration, the early Obama Administration, and Congress.” While the latter conclusion would be comforting, several reasons suggest that the consensus is illusory and Goldsmith’s earlier conclusion is closer to the truth – and in fact understates the limits on the Executive’s current power and the resulting risks to the nation’s security.     

Turn first to dealings between Congress and the President. Prior to the twilight of the Vietnam War, Congress influenced ongoing national security initiatives mostly through the budget process, specialized briefing and oversight processes, and general laws structuring our armed forces. The Terror Presidency outlined the web of relatively recent laws and treaties that governed counter-terrorism activities even in the early years of the Bush Administration, while faulting the Administration for not engaging Congress more actively in the years following September 11. Whatever the merits of that criticism (and the Patriot Act, authorizations for the use of military force separately in Iraq and against al Qaeda, the creation of the Department of Homeland Security, and the statutory reorganization of the intelligence community weigh against the point), Goldsmith does not extend it to the later Bush Administration. For good reason: two separate surveillance Acts, separate statutes addressing treatment of detainees, the reauthorization of the Patriot Act, high-profile hearings regarding various military and intelligence initiatives, and vigorously contested military spending bills marked those years.       

There’s much to be said for many of those statutes and for that engagement with Congress, but those events only begin to capture the emerging dynamic between the branches. Legislative actions increasingly reflect a deep resistance to maintaining ongoing military engagements and to leaving their management to the President.  Historians may debate whether Congress snatched defeat from the jaws of victory in declining to support the South Vietnamese in the mid-1970s, but there is little doubt that Congress nearly did so in 2007. Many in Congress sought to manage and constrict the conduct of the Iraq War and the broader war against terrorists, and the Democratic majority repeatedly backed measures designed to short-circuit the Surge and end combat long before the military advised. Those measures would have plunged the region into a chaos that would have benefited only our enemies. Early responses to the Obama Administration’s Afghanistan plans and requests for supplemental military appropriations suggest that the Vietnam impulse will be with us for many years to come.  

Congress also increasingly reflects the left’s traditional hostility to a range of intelligence activities. The longstanding reconciliation of Congress’ interests with the execution of effective intelligence measures was to have the House and Senate Intelligence Committees manage oversight of sensitive intelligence matters. Indeed, invigorating and formalizing that channel of oversight was the principal structural change produced by the debilitating Congressional investigations of the 1970s and 1980s. Recently, that compromise has broken down. The press and the left clamor for public disclosure of the most sensitive details of intelligence activities, and many Congressional committees – often without the intelligence committees’ commitment to confidentiality – structure their hearings and legislative activities accordingly.

And then there are the courts. Goldsmith rightly underscores how the federal courts have recently abandoned longstanding doctrines and precedents to reach out to limit the Executive’s counter-terrorism powers. If anything, he understates the nature of the departure and the risk it poses to the national security. Beginning in the 1940s, judges absorbed the lessons of World War II and the Cold War about existential threats to the nation and elaborated a range of doctrines that nearly always removed the judiciary from political and policy debates surrounding the conduct of foreign and military affairs. This remained true even as judges crafted new rules to permit an explosion of domestic legal claims against the government during the 1960s and 1970s: despite antiwar activists’ best efforts, the courts sidestepped the robust legal disputes over the authorization and conduct of the Vietnam War, and continued to avoid such issues through the conclusion of the Cold War and the military engagements of the 1990s. 

Many judges adhere to that tradition of deference in military and foreign affairs, but the culture wars that have split the judiciary have recently extended to those matters as well.  Many judges, including at times a majority of the Supreme Court, have acted on the basis that wars are too important to be left to the generals (or to Congress and the President) and that courts fulfill their mission by hearing and giving effect to claims of right. If you suspect that assessment is hyperbole, go read the majority opinion in Boumediene. There, the Supreme Court last year reversed its own precedent to set aside the considered national security judgment of Congress and the President for the benefit of foreign persons the military had concluded were waging war on the nation. That decision is only the most prominent in a series of cases that address disputes between the government and groups opposed to counter-terrorism and other military and intelligence activities – and that split judges along the same political lines as do the domestic disputes that have long traced the legal battle lines in the culture wars.                

This judicial activism and recent dynamic between Congress and the Executive reflect a broader change in legal culture — fostered not coincidentally by a generation that cut its teeth on protests against the Vietnam War and the CIA.  Both developments stem in large part from the extension to military matters of the rights and litigation cultures that have flourished over the past decades amidst disputes over the death penalty, criminal defendants’ rights, personal privacy, religious observance, and access to government information. In particular, the government’s counter-terrorism programs naturally threaten the standing of and provided opportunities for the self-styled international human rights community. Viewed from the perspective of an adversarial legal culture, the conflict between the U.S. government and foreign terrorists principally threatens the rights and interests of foreign persons targeted by the government, rather than the rights and interests of U.S. citizens targeted by the terrorists. Foundation grants, pro bono support from prestigious law firms, generous press coverage, and rulings from sympathetic judges promptly followed. 

The most pressing national security issue may well be whether this adversarial legal culture has captured the Executive itself, in addition to influencing Congress and the judiciary. Several of President Obama’s top appointees to the Department of Justice and elsewhere made their names litigating against the United States on behalf of now-convicted terrorists or otherwise opposing initiatives that the Obama Administration has tentatively continued. Disputes surrounding the binding effect of international legal norms will shape the force and scope of the Administration’s counter-terrorism efforts, and other appointees advocate the legal theories that would most constrain U.S. action in this respect. Still others within the Administration may be exquisitely sensitive to the legal and political claims of the domestic and international rights communities.

For this reason, the nation’s security and the robustness of its actions directed against our adversaries will largely turn over the next years on whether the Executive Branch disables and disarms itself, rather than upon the courts’ or Congress’ checks upon its powers. Jack Goldsmith has been one of the most cogent and thoughtful defenders of the traditional legal doctrines and theories that provide the framework for vigorous assertions of sovereignty and defenses of the national security. His view has until now been a majority one among lawyers in the Executive Branch, but a decidedly minority one among law professors, advocacy organizations, and much of the elite bar. Members of those groups have now gained the commanding heights of much of the Executive Branch itself, and we will have to watch to see whether they continue the national security “consensus” that Goldsmith finds in the later years of the Bush Administration or embark instead on a considerably different course.