An Insufficiently Accountable Presidency: Some Reflections on Jack Goldsmith's Power and Constraint

Article excerpt

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. …