“the Terror Presidency” Excerpts, Part 2

Yesterday I argued that presidential war powers became more constrained by law during the Bush years than ever before.  If this is so, why do so many people think the opposite?  There are at least three reasons, all having to do with the baselines from which we judge presidential power. 

First, while the Bush administration did sometimes push the law aggressively, its rhetoric was often more expansive than the reality of the power it asserted.  Some Office of Legal Counsel opinions made broad legal arguments for presidential power that were unnecessary to the conclusions of the opinions.  And the Bush White House frequently proclaimed a desire to expand the powers of the presidency unconnected to any particular policy initiative.  This rhetorical strategy was without precedent in American wartime history.  It was also self-defeating.  In wartime citizens worry about granting too much power to the President.  Bush administration rhetoric exacerbated these worries in ways that colored and distorted the legitimacy of some of its actions. 

Second, when critics claim that Bush expanded the legal powers of the presidency, they tend to focus on the unilateral powers asserted at the beginning of the administration, and not on where those powers stood by the end of the administration.  As I outlined yesterday, over the course of eight years Congress and the courts pushed back against many of these unilateral assertions of power and approved (and thereby legitimated) others.  There was much more consensus about counterterrorism strategy – across both political parties and the branches of government – at the end of the Bush administration than at the beginning. 

Third, the Bush administration’s assertions of presidential power seem extreme to the many people who do not believe we are at war or in any event do not believe the President should assert war powers in our struggle with Islamist terrorism.  It does not matter that Congress expressly authorized an armed conflict against those responsible for 9/11 and approved many of the Bush policies.  Nor does it matter that the Supreme Court recognized that Congress’s authorization triggers the President’s war powers.  These things do not matter much because the public cannot see the enemy and there has been no attack on the homeland in eight years. 

Public judgments about the legality of presidential actions are colored by public perceptions of the stakes.  When a nation is unambiguously at war and believes its future is at risk, practices that would have seemed problematic in peacetime are viewed as necessary and thus legitimate.  Relatively few complained when Lincoln jailed anti-war agitators without charge or trial, or when Roosevelt used a military commission with few procedural niceties.  But to the extent that a war appears unreal or the threat appears exaggerated, wartime presidential powers like detention or military trials or aggressive surveillance are viewed more skeptically, regardless of their technical legality.   

These points help in assessing the Obama administration’s embrace of many of the Bush counterterrorism policies, including the state secrets doctrine, warrantless wiretapping, the power to detain enemy combatants indefinitely without charge or trial and (in places like Afghanistan and Iraq) without habeas corpus review by federal courts, and the like.  These policies are not nearly as extreme as worried Obama supporters on the left have claimed.  To the contrary, they are traditional presidential war powers that have the backing of Congress or a long legal pedigree.  And measured against the baseline of past wars, these powers are more carefully regulated by law than ever before. 

Nor is Obama necessarily hypocritical for embracing policies that he criticized during the campaign, as some critics on the right believe.  Obama’s criticisms of the Bush administration’s counterterrorism program were directed mostly at its first-term unilateralism, and not at the policies as they stood at the end of Bush’s second term after having been vetted for years by Congress and the courts.  And Obama has shifted the legal foundation for some Bush positions – for example, he grounded his detention authority directly in congressional power and international law rather than in his commander-in-chief authority.  (The Obama position on the state secrets doctrine is consistent with past presidential administrations but does appear to be a change from his campaign position; however, the administration’s final word on that doctrine has not yet been announced.) 

We are in the midst of the most unusual war in our history – unusual because of its indefinite duration, and because the enemy is lethal but the public cannot see it and thus does not fully appreciate its threat.  This unusual war thus presents two special dangers.  One is that the public’s under-appreciation of the threat, so natural after nearly eight years without an attack at home, will lead to under-preparation in the institutions of government that cannot function without public support.  Another is that an indefinite transfer of war power to the President might distort the constitutional balance of power.  To overcome these dangers we must empower the President to meet the threat fully while developing institutions that ensure he remains accountable to Congress and the law.  The surprising general consensus on how to meet this challenge among the late Bush administration, the early Obama administration, and the Congress suggests that we have gone further in meeting it than many realize.

Excerpted from The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack Goldsmith. Copyright (c) 2007 by Jack Goldsmith. With permission of the publisher, W.W. Norton & Company, Inc.