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The fall election campaign is likely to focus on President Obama’s handling of the economy, but there once was a time when the president’s supposed softness on fighting terrorism was considered his biggest political weakness. Just how far Obama has come in this regard—and whether he betrayed his civil libertarian roots—is the leitmotif of Jack Goldsmith’s fascinating Power and Constraint: The Accountable Presidency After 9/11.
Goldsmith, a professor at Harvard Law School (the president’s alma mater), minces no words. As a candidate, Obama clearly rebuked the Bush-Cheney policies on spying, interrogation, detention, kangaroo military courts—and torture. And yet, “In perhaps the most remarkable surprise of his presidency,” Goldsmith writes, “Obama continued almost all of his predecessor’s counterterrorism policies.”
The specifics of Obama’s anti-terror program will cause liberals to wince far more than it should Dick Cheney, who has been Obama’s persistent critic. In one juicy example, Goldsmith recounts how Obama did a volte-face on military commissions—special courts used to try enemy forces during wartime, in which evidentiary and other rules are stacked against defendants. Obama, a former constitutional law professor, denounced commissions during his campaign, and at the start of his presidency he “suspended” their use for 120 days. The New York Times crowed that suspension was merely “a legal nicety,” soon to become permanent. But, as Goldsmith recounts, it was not a legal nicety. After an “intense” review,” Obama reinstated commissions, albeit with reforms the author describes as “real but not large.” He did so, Obama later explained, to protect sensitive sources and methods of evidence-gathering—the same rationale put forth by Bush-Cheney.
Why did President Obama seemingly retreat from the promises of Senator Obama? Partly, it was his essentially cautious nature—the same trait that led him to endorse tighter regulation of Wall Street, in the aftermath of the financial crisis, but not draconian reform (he never sought to break up the banks, for instance). Also, the realities of modern warfare proved unexpectedly complex. As an Obama administration lawyer put it, “the making of U.S. foreign policy is infinitely harder than it looks from the Ivory Tower.”
Goldsmith’s explanation is, ultimately, surprisingly forgiving. The author previously served in the Office of Legal Counsel under Bush, where he advocated a vigorous anti-terror policy within constitutional limits. He resigned to write a measured, but scathing, critique, The Terror Presidency, of how administration lawyers, such as John Yoo, bent the law in the name of catching terrorists.
Readers who expect a second helping of Goldsmith’s outrage will be disappointed. On issue after issue, he recounts how the Obama government resembles the administration it succeeded. Among them: Obama embraced the characterization of the fight against al-Qaeda as a “war” rather than crime-fighting; he continued detention of suspected terrorists without trial; he maintained the U.S. detention center at Guantanamo Bay (on this issue Congress gave him little choice); he embraced limits on habeas corpus in countries such as Afghanistan; he amplified the use of robotic killer drones in countries, such as Pakistan, with which the U.S. is not at war; and Obama’s Justice Department has continued its predecessor’s emphasis on surveillance and secrecy. “There is a real danger,” according to an American Civil Liberties Union report quoted by the author, “that the Obama administration will preside over the creation of a ‘new normal.’” Goldsmith concurs, “This is basically what happened.” Yet he does not protest. Rather, he calls his tale a “relatively sanguine story about how modern constitutional checks operated in a novel war.”
It turns out that both Obama’s seeming flip and Goldsmith’s more accepting view are less of a change than they appear. Obama the candidate was usually careful to refrain from specific promises (pledging to close Guantanamo was an exception). As Goldsmith said, he left himself “wiggle room” to evaluate Bush’s policies.
The more pervasive explanation is that the anti-terror policies that Obama, and much of the public, found repellent had already been abandoned or substantially modified by the time he took office. Obama departed from Bush circa ’03—but by 2008, Bush’s policies had also changed. Interrogation techniques are a good example. Obama rightly described waterboarding as “torture,” and the author calls the approach of the Obama Justice Department a significant change from that of the Bush-Cheney lawyers. However, the change was “smaller than advertised,” because during Bush’s second term, both Congress and the Supreme Court narrowed the use of acceptable interrogation techniques. In particular, the high court ruled that the Geneva Conventions applied to the conflict with al-Qaeda. Waterboarding was abandoned after 2003—six years before Obama took office.
In a similar example, Obama, in his first week, dismantled secret overseas prisons. Goldsmith writes, “This was a real departure from the Bush regime, but less of a departure than met the eye,” because for the last two years under Bush such “black sites” had been practically empty.
These examples stand for a larger truth, which is that interrogation, evidence-gathering, and detention standards were significantly modified both before and after the Abu Ghraib abuses in 2004. This is Goldsmith’s other story: how a constellation of forces—the courts, Congress, the press, human rights organizations, public opprobrium, as well as internal lawyers and investigators within the CIA and the military—worked together to “uncover, challenge, and change” the system.
Goldsmith presents this process as a model of checks and balances that would have caused a constitutional father such as James Madison to smile. But he is not fully comfortable with the results. He frets that a deluge of lawyers has handcuffed both the military’s and the CIA’s room to operate. In one example, he describes how the army shrunk from aiming a drone at a mosque believed to harbor the Taliban leader Mullah Omar. Partly on advice of a military lawyer who feared the presence of civilians, the drone targeted a vehicle outside the mosque instead. Omar escaped. Although the incident occurred in 2001, what was new and increasing through the decade, Goldsmith writes, was the extraordinary role of both lawyers and law in modern war. Even field soldiers engaged in detention must be conscious of due process concerns. This worries the author perhaps more than it should.
Goldsmith also scolds the press for downplaying the risks that leaks pose for security, not that the press is entirely to blame. As Goldsmith notes, the Internet and the explosion of the “secrecy bureaucracy” (almost 1.5 million people now have top secret security clearance) have made leaks all but inevitable.
The two subjects of his title, power and constraint, are intended to be oppositional; the author tilts slightly toward the former. Thus, he cites “unhappy consequences” such as “harmful disclosure of national security secrets.” Going further, he argues that “it is hard to know whether the virtues of increased presidential accountability outweigh its vices.” Goldsmith’s evidence, not to mention recent disclosures of Koran burning, as well as the shooting of innocents by a deranged GI in Afghanistan, reaffirms that America is stronger, not weaker, thanks to the array of forces that “constrain” its use of power.
Mostly, Goldsmith agrees that increased constraint has been a good thing. He describes the reforms limiting White House and military discretion over the last decade as an example of what historian Arthur Schlesinger Jr. termed “the vital mechanism of self-correction.” Goldsmith is painstakingly detailed (among many such concrete examples, he walks us through then Washington Post Executive Editor Leonard Downie Jr.’s decision on whether to accede to President Bush’s request to hold back sensitive information).
The author is scrupulously fair. While not excusing past abuses, he is right to remind us of the context of waterboarding and other of the CIA’s “enhanced interrogation techniques”—namely that, on 9/11, the agency had suffered its greatest intelligence failure ever, and was desperate to prevent a repeat. It is just such urges that underline the ever-present need for constraint.
The author credits Obama with a more significant change in attitude than in policy. His administration often embraced reforms “on its own initiative,” in contrast to its predecessor, which too often did so under the glare of congressional or judicial pressure. And Goldsmith upends the standard view of Cheney, who by spring 2009 already was fulminating that Obama was “making America less safe.” The charge, says Goldsmith, was false. Rather, “Obama’s few real changes from the Bush era … continued trends that began at the end of the Bush administration and that Cheney opposed while in office.”
Goldsmith’s finale—”There will be another terrorist attack at home, perhaps one as catastrophic as 9/11″—struck me as too hawkish and alarmist, what we expect from Jack Bauer rather than Jack Goldsmith. A more apt, and more uplifting, conclusion is found in his introduction: that America has experienced “a remarkable and unnoticed revolution that checked and legitimated … presidential power.”