Jack Goldsmith's part memoir, part historical and legal analysis of the Bush administration's war on terror, The Terror Presidency, came out a number of months back. It has of course been widely and positively reviewed, as befits a book that captures so extraordinarily well the dilemmas of governance and executive power in the difficult circumstances of terrorism and counterterrorism. It is one of the few books about the Bush administration and one of the few insider books on the Bush administration that I can confidently predict will remain required reading for the long historical term.
I am delighted to note that my own review, in the Times Literary Supplement of 19 December 2007, is now up online at the TLS, here.
(Thanks to Scott Lahti for cluing me in, I had no idea it was actually out.)
The grand irony, Goldsmith observes, is that although the Bush administration lawyers sought “to leave the presidency stronger than they found it”, in fact they “seem to have achieved the opposite”. The reason is simply that the American constitutional system really does have three branches of government. Although the judiciary in principle has little constitutional role to play in matters of war or foreign policy generally, the fact that the war on terror has been conceived by the administration as a global war – in which the whole world is the battleground, in which even American citizens on American soil could be named as enemy combatants and indefinitely detained solely on the say-so of the executive – ensures that the Supreme Court cannot be left aside.
The administration’s tunnel vision has thus left it blind to the fact that, by seeming to go it alone and refusing to go to Congress for such things as limits, but also authority, to hold detainees at Guantánamo, or specific rules on interrogation that confine, but also legally protect, interrogators, the administration has tied itself in marriage to a far more exigent spouse – the Court. The message of successive detainee cases from the Supreme Court – Hamdi and Hamdan, particularly – has not so far been that the constitution forbids much of what the executive proposes to do. After all, most of this pertains to non- citizens detained outside the United States; and until the Bush administration’s spectacularly overreaching legal theories blew up in its face, no one thought the constitution applied to them at all. The message is, rather, that the administration should seek Congressional assent for what it wants to do. The Court has signalled provisionally that it will accept at least some extraordinary rules in the war on terror – provided, however, that the political branches have together given those departures democratic legitimacy. The Court’s limits, following the just argued Boumediene case, to what the political branches might do even together are not yet firmly drawn.
But there is no going it alone in a system of divided constitutional powers. If not Congress, it will be the Court – or more exactly, as Benjamin Wittes has noted, the inconstant Justice Anthony Kennedy, the Supreme Court’s swing vote – that endorses policy. In pursuing unfettered executive power to act alone, the administration has made Justice Kennedy its five-star general, its very own Douglas MacArthur in the war on terror. On the infrequent occasions when the administration has been forced by the Court to go to it for authority, it has been denied practically nothing. It has not so far mattered that the Bush administration is a lame duck, or whether Congress is in Republican or Democratic hands.
The administration seems not to have understood that what lives by executive discretion dies by executive discretion. If the Bush administration took counterterrorism as seriously as it took the abstraction of executive power, it would have thought ahead to its own departure from office. If it truly believed that its approach to counterterrorism was correct, then from the first day of its second term it would have engaged with Congress to create institutions to outlive any particular Presidency. It would have thought about the example of the Cold War and how a democracy deals with a genuine threat to a whole way of life. In retrospect, the democratic institutions of the Cold War did a remarkable job of balancing safety and liberty over decades; pure executive discretion cannot possibly promise the same. The administration having undertaken none of these things, US counterterrorism policy today flails without long-term strategic guidance or institutional stability.