POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11. Jack Goldsmith. (1) New York: W. W. Norton & Co. 2012. Pp. xvi + 311. $26.95 (Cloth).
President Barack Obama's updated version of the so-called war on terror has received something of a "free pass" from most political and legal scholars. (3) To be sure, civil libertarians at the ACLU, Center for Constitutional Rights, and other activist organizations, (4) as well as liberal voices on the editorial pages of the New York Times, (5) have pilloried Obama for his failure to fulfill what appeared to be a heartfelt 2008 campaign promise to dramatically reverse his conservative predecessor's controversial counterterrorism policies. Yet nothing akin to the avalanche of critical books or journal articles burying President George W. Bush's policies has emerged thus far. In part, the difference stems from Obama's admirable decision to abandon the Bush Administration's embrace of so-called "enhanced interrogation" (i.e., torture). (6) The silence likely stems as well from the partisan preferences of law professors and political scientists, many of whom instinctively sympathize with Obama and his Democratic Administration. Those defensive instincts have surely been reinforced, albeit inadvertently, by right-wing critics like Dick Cheney and Rudy Giuliani, neither of whom seems willing to miss an opportunity to appear before the TV cameras in order to denounce Obama for being "weak on terrorism." (7)
So it probably should come as no surprise that the best available account of the Obama Administration's version of the war on terror comes from one of our leading conservative jurists, Jack Goldsmith, in his new and provocative volume. More unexpected is that if Goldsmith's description of Obama's policies and his Administration's legal justifications is to be believed, some of the President's vocal critics on Fox News can probably calm down: as Goldsmith for the most part convincingly outlines, continuities outnumber discontinuities as far as Obama's relationship to his Republican forerunner goes (pp. 3-48). Most surprising perhaps, Goldsmith seems at least broadly appreciative of--if not always enthusiastic about--the basic outlines of Obama's present political and legal brew, seeing in it the product of fruitful institutional learning that has characterized U.S. policy since 9/11 (p. xii). For those vexed about indefinite detention, Abu Ghraib, and Guantanamo Bay, Goldsmith offers some reassuring words. Despite some blemishes, the U.S. polity, blessed with a thriving civil society and firmly institutionalized checks and balances operating effectively to counter extreme policies, has in fact performed reasonably well since 9/11: President Bush was eventually forced to reconsider counterproductive and legally dubious policies (e.g., torture) (p. xii). Because of our resilient and indeed self-correcting constitutional system, fruitful pushback not only encouraged officials to abandon such policies, but along the way vital lessons have been learned about how best to navigate what Goldsmith sees as a more-or-less permanent state of emergency (pp. xiv-xvi). Although Obama's present-day policies are by no means flawless, he has not only built on the lasting achievements of the Bush Administration's version of the war on terror, but has also sensibly tried to render them consonant with longstanding U.S.-backed legal ideals (pp. 5-20). Best of all, Obama has been driven to do so partly because he faces pressures like those which similarly forced President Bush to give ground (p. 24). Pace scholars on both the left and right who depict the present-day presidency as effectively uncontrolled by institutional and constitutional means, Goldsmith underscores crucial ways in which it continues to confront oftentimes imposing constraints. (8)
Providing a hardheaded yet surprisingly sympathetic look at President Obama's policies, Goldsmith's volume provides illuminating reading for anyone interested in the political and legal vagaries of post 9/11 U. …