Power and Constraint: The Accountable Presidency After 9111. By Jack Goldsmith. New York, London: W.W. Norton & Company, 2012. Pp. xvi, 311. Index. $26.95.
In the wake of 9/11, some see the executive branch as out of control--spying on U.S. citizens, detaining suspected terrorists indefinitely, subjecting detainees to harsh interrogation techniques, even on occasion killing suspected terrorists through the use of drones--all behind a wall of secrecy that precludes scrutiny by the public or the courts. (1) As is his wont, Jack Goldsmith, the Henry L. Shattuck Professor at Harvard Law School and a former Bush administration official, provides a revisionist rebuttal to the commonly held view that "we are living in an era of unrestrained presidential power" (p. 252). In its place, Goldsmith presents a "relatively sanguine story" (p. 248), arguing that the last decade has produced a presidential "synopticon" (p. 207) of unprecedented transparency, in which the president is "deeply constrained by law and politics" (p. 48).
Like all of Goldsmith's work, Power and Constraint is a powerful challenge to conventional thinking. It is brilliantly argued and often persuasive. But just as the conventional critique of the terror presidency goes too far in sounding "the death knell for the separation of powers" (p. x), Power and Constraint swings too far the other way in its claims about presidential accountability. As usual, the truth lies somewhere in between.
The story that Goldsmith tells is one of action and reaction, thesis and antithesis, producing a new equilibrium or synthesis. Rather than acquiescing in the Bush administration's "aggressive executive unilateralism" (p. 37), Congress and the courts--aided by inspectors general, military and national security lawyers, the press, and human rights attorneys representing detainees at Guantanamo (GTMO)--"pushed back against the Commander in Chief like never before in our nation's history" (p. 38). The result was a rethinking, recalibration, and, in some cases, revision of the Bush administration's counterterrorism policies. For example:
* An investigation by the CIA's Office of Inspector General led to a discontinuation after 2003 of the much-criticized interrogation technique known as waterboarding.
* GTMO detainees were allowed to file habeas petitions in U.S. courts as a result of the Supreme Court's 2004 decision in Rasul, (2) and 2008 decision in Boumediene. (3)
* Interrogation techniques were limited first by Congress's adoption of the Detainee Treatment Act of 2005, which banned cruel, inhuman, and degrading treatment; (4) and later by the Supreme Court's decision in Hamdan, (5) which ruled that Common Article 3 of the Geneva Conventions applies to the conflict with Al Qaeda.
* Congress "prescribed in detail" the procedures for military commissions (which were "much more protective to defendants than the President's commission scheme"), through the Military Commissions Act of 2006 (p. 187). (6)
Power and Constraint analyzes the system of "distributed checks and balances" (p. 49) that led to these constraints and suggests a new way of thinking about who is doing the checks and balances. Goldsmith goes beyond the traditional focus on interactions among the three branches of the federal government, arguing that many of the checks on presidential power in the aftermath of 9/11 did not come from Congress or the courts. Instead, executive power was constrained by "giant distributed networks of lawyers, investigators, and auditors, both inside and outside the executive branch" (pp. xi--xii): from within the executive branch, by military and national security lawyers and inspectors general; from without, by the press and the human rights bar.
The end result of the back and forth between...