An insufficiently accountable presidency: some reflections on Jack Goldsmith's 'Power and Constraint'.

• Author: Azmy, Baher
• Position: Article in this issue, p. 11 - Symposium: Presidential Power and Foreign Affairs

Abstract

In his insightful and highly readable new book, Power and Constraint, Jack Goldsmith argues that contrary to popular perception, executive branch activity in our enduring, post-9/11 era has been adequately constrained by a range of novel forces such human rights groups, government lawyers and journalists and that such constraints have, in turn, produced a public and political consensus that the current balance between national security policies and civil and human rights is "legitimate." This review takes issue with Goldsmith's perspective on the capacity of the entities he praises to meaningfully check wartime Executive Branch practices and contests Goldsmith's methodologically flawed attempt to transform his positivist description of the way things are into a normative conclusion that this is the way things ought to be in our constitutional system. This review also identifies a perceptible bias in Goldsmith's analysis that heavily preferences an aggressive national security regime, while discounting harms to the victims of that regime's excesses, and argues that Goldsmith undervalues important metrics of accountability that should cause us to doubt seriously that we have a properly constrained the presidency or that our current state of affairs is constitutionally legitimate.

CONTENTS I. INTRODUCTION II. A ROSY PRESIDENTIAL SYNOPTICON A. Journalists B. Government Insider and Outsider Watchdogs C. Warrior Lawyers D. The Guantanamo Bar III. AN UNSTABLE THEORY OF LEGITIMACY A. The Obama Administration B. Public Opinion C. The Courts 1. Detention 2. Targeting D. A Revealing Bias IV. A THIN THEORY OF ACCOUNTABILITY A. Defining Accountability Down B. High-Level Impunity 1. Extraordinary Rendition 2. Torture 3. Supervisory Liability C. The Tragedy of the American Form of Legitimacy 1. Victims 2. History 3. The World V. CONCLUSION: A MORE SINISTER PARADOX I. INTRODUCTION

Case Western Reserve University School of Law has understandably chosen to recognize Jack Goldsmith's latest book, Power and Constraint: The Accountable Presidency After 9/11, (1) as part of this year's Frederick K. Cox International Law Center War Crimes Symposium. It is a thoughtful and very readable account of the dynamic political, legal, and military forces that shaped and ultimately limited executive-branch policy making around a host of asserted war-making activities such as targeting, detention, and surveillance in the tumultuous decade following 9/11.

Goldsmith's project and his perspective are optimistic, some would even say Panglossian. (2) He seeks to demonstrate that, despite depictions of lawlessness, secrecy, and cruelty associated with counterterrorism policies of the past decade--and primarily occurring in George W. Bush's first term--the executive branch has in fact come to be meaningfully constrained by a complex, inter-related, and decidedly modern set of mechanisms. Those mechanisms have made the commander-in-chief democratically accountable and subject to a system of checks and balances that, while different from the structural ones contemplated by James Madison, are equally effective in limiting executive branch transgressions throughout what may well be an endless war. Goldsmith's provocative thesis--supported as it is, by first-person interviews from a variety of participants on all sides of the decade's legal drama and benefitting from some temporal distance from key events--will surely populate syllabi addressing the post-9/ll legal landscape for years to come, alongside other important and decidedly less sanguine works that have excoriated the Yoo-Addington-Cheney legal paradigm that operated in the early-to-middle years of the Bush Administration. (3)

As readable as Goldsmith's account is, however, it suffers from notable methodological flaws and ultimately comes to a highly contestable substantive judgment about the virtue of the present state of affairs. These facets of his analysis appear to be driven by a significant bias that preferences American exceptionalism and might over the substantial human suffering caused by those same forces. On the methodological side, Goldsmith's analysis falls into a basic philosophical trap, the "is-ought problem" (also known as "Hume's Law"). (4) That is, Goldsmith appears to make normative judgments about how the world of accountability ought to be, from largely positivist premises about the way the world is; he labels, it seems, this determinist account of the current state of affairs as "legitimate." His normative conclusion--that, in effect, this is the best of all possible worlds--does not follow from his positivist (and too rosy, in my view) depiction of the status quo. Indeed, it is undermined by some striking statements that bespeak a failure to fairly evaluate the competing interests at stake. For example, he regards the ethics investigation into John Yoo's instrumentalist memos authorizing torture as "brutal," saying nothing about the actual brutality of the interrogations and violence Yoo ratified.5 To take another, he credulously asserts that all of the remaining Guantanamo detainees are the "worst of the worst" "terrorist soldiers,"6 a claim that is so sloppy and manifestly false,7 it would appear to call into question the balance of his entire legitimacy analysis.

However, having identified what I believe is a perceptible bias in his perspective, I must make a full disclosure of my own. I am a long-standing member of the Guantanamo Bay Bar Association, the collection of thousands pro bono attorneys described in Goldsmith's book, who have represented hundreds of Guantanamo detainees in habeas proceedings following the Supreme Court's decision in Rasul v. Bush.B And I have recently assumed the role of Legal Director of the Center for Constitutional Rights (CCR), a human rights litigation and advocacy organization Goldsmith places at the center of the legal battles seeking access to justice for Guantanamo detainees and accountability for torture and human rights abuses committed by U.S. officials in connection with the Bush Administration's "war on terror." Goldsmith credits CCR president and leading human rights lawyer, Michael Ratner, for filing the first habeas cases in 2002 challenging the legality of the Guantanamo detentions, when few others dared take on such an unpopular cause. (9) But Goldsmith also contends that the litigation not only failed to achieve its initial aims--i.e., ending indefinite, preventive detention--the litigation actually set in motion a series of judicial decisions and executive actions that ultimately legitimated these policies under the law and popular perception.

Of the many facets of Goldsmith's account, this is the one I am most interested in, and not just because it surely has a sting to it. After all, no human rights lawyer wants to hear that she has solidified or validated the very system she finds immoral and dedicated her life to changing. Still, putting aside the literary allure of the "be-careful-what-you-wish-for" trope, Goldsmith's characterization of the state of the world today is neither entirely accurate nor fair. In what follows, I first intend to demonstrate that this facet of his book's conclusion--that various aspects of U.S. counterterrorism policy (especially around detention, targeting and surveillance) now have legal legitimacy--suffers from some significant methodological flaws: the empirical foundation for his claim of "legitimacy" is uncertain, at best. After spending a little more time questioning Goldsmith's perspective, I then seek to show that the system of "accountability" that Goldsmith endorses remains fundamentally unjust and will be judged so by important criteria that Goldsmith undervalues. Finally, I suggest Goldsmith's policy recommendation for a robust executive national security paradigm may produce a paradox that would sting far more harshly than the one Goldsmith attributes to CCR's work.

2. A ROSY PRESIDENTIAL SYNOPTICON

   Goldsmith posits that we have developed a healthy system of presidential accountability--a push and pull equilibrium in which various actors inside and outside of the government (e.g., journalists, whistleblowers, government agency Inspectors General, military lawyers, human rights NGOs), responded to the extra-legal actions of the first-term Bush Administration and exposed, litigated, publicized, and ultimately forced a change in the worst executive-branch practices related to things such as incommunicado detention, extraordinary rendition, secret CIA prisons, and torture. (10) He catalogs the ways in which these actors played a meaningful part in supplementing and energizing the role of traditional institutions--the courts and Congress--in checking extra-legal Bush Administration activities, (11) even as he gives some of these actors more credit than they probably themselves believe they deserve. He regards their modest successes as particularly novel and noteworthy in light of the traditional deference given to the president during times of crisis.

   What seems most important to Goldsmith is that the cumulative response of these actors to emergency actions of the Bush Administration--the "ecology of transparency" (12) they created--is actually durable and sustainable. These actors can, and should, in his view, remain in place to scrutinize and constrain future executive wartime practices. Goldsmith believes that these forces have inverted the traditional assumptions regarding the awesome and intimidating power of the state, including its consistent capacity to surveil and control its citizens. (13) Instead of (or at least in addition to) a Benthamite, state-created panopticon, a device in which one can monitor many, Goldsmith believes we live in a synopticon, in which these many actors can consistently monitor and control one: the presidency. For Goldsmith, this dynamic produces a happy stasis of presidential power checked by presidential accountability...