Constitutional government in the United States is alive and well. At least, that is the hopeful conclusion of Jack Goldsmith’s stimulating new book “Power and Constraint.”
Goldsmith, a former head of the Bush Administration’s Office of Legal Counsel, disputes the widely accepted view that traditional checks and balances have been diminished by the war on terrorism. According to the conventional account, the post-9/11 national security bureaucracy produced waterboarding, detention without trial, unlawful surveillance and other anomalies, while the enforcement of existing legal norms was crippled, oversight bodies were passive and uncommunicative, secrecy was rampant and impunity prevailed.
This is a superficial and erroneous perspective, Goldsmith contends. If anything, he says, the mechanisms of oversight have flourished as never before and their ongoing impact on national security policy has been profound though not widely recognized.
While there has been nothing like a “truth commission” or a congressional Church Committee investigation to provide a full public account and evaluation of the government’s conduct of the war on terrorism, other types of oversight have more than filled the void, the author argues. He cites the investigation of the CIA detention and interrogation program by CIA Inspector General John Helgerson, and subsequent reviews.
“No CIA program — including the ones that underlay the Iran-Contra scandal and the many investigated during the Church and the Pike Committee hearings — has ever undergone so much extended or critical scrutiny. In the process both the CIA and the accountability system governing it changed fundamentally.”
Similarly, through the efficacy of internal and external oversight, the use of torture has been ended, habeas corpus has been reaffirmed, military commissions have been brought under the authority of law, and so forth.
In Goldsmith’s telling, the Presidency is a massively powerful Gulliver which is nevertheless constrained by a growing number of Lilliputian threads that limit executive freedom of action in new and unprecedented ways. Journalists, military and civilian lawyers, human rights activists and civil liberties organizations are portrayed as powerful and influential forces that have materially altered national policies. This contention has all the more weight — and cannot be easily dismissed as (self-)flattery or wishful thinking — because the author does not particularly share the agenda of these diverse actors.
“The dizzying and often painful swirl of investigations, lawsuits, reviews, reports, and accusations… forces the government to recalibrate its counterterrorism policies and accountability mechanisms constantly based on ever-changing information and ever-changing legal and political constraints,” he writes.
Yet this does not mean that all is well, or that anyone can rest easy.
“Many… remain alarmed by what they see as endless and undefined war, excessive presidential secrecy, insufficient judicial review of the President’s actions, too much surveillance, inadequate congressional involvement, and many other evils of the post-9/11 presidency. They continue to push hard against the government with lawsuits, FOIA requests, accountability campaigns, and strident charges against public officials.”
And, he says, that’s good. “This is all very healthy for the presidency and for national security.”
No one that Goldsmith spoke with — from executive branch and congressional officials to reporters, human rights organizations, and public interest activists — believes that political conditions are optimized to advance their own interests. “They all believed that they are on the losing end of the stick in trying to influence U.S. counterterrorism policies and their associated accountability mechanisms.”
But what has been achieved, in the author’s view, is “a harmonious system of mutual frustration.”
“Power and Constraint” has many virtues, beginning with its respectful presentation of multiple contrasting perspectives on the issues it explores.
Goldsmith acknowledges the fundamental and destabilizing uncertainties that preclude a final settlement of counterterrorism policy: “We do not know precisely how serious the Islamist terrorist threat is, or the likelihood of an attack, or its likely location or scale, or how much investment in what types of policies would best prevent attacks.”
Moreover, “even if all of the factual and legal questions were resolved, the assessment of proper counterterrorism policies and accountability mechanisms would still be guided by moral intuitions that are more diverse than we like to admit. Many find waterboarding, military commissions, and detention without trial repulsive; many others do not.”
The book includes a nuanced discussion of leaks of classified information, and of the role of secrecy more broadly, as well as the responses it has engendered.
“There are costs and benefits to national security from both secrecy and disclosure,” Goldsmith observes, “but we do not have great tools to measure or compare them.”
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