War without End? Legal Wrangling without End

Article excerpt

Abstract

It is optimistic to argue, as Jack Goldsmith does, that debates in the Bush era generated a broad consensus on national security law in later years. Rather, partisan critics denounced a Republican administration .for violating the law, then acquiesced to similar practices when implemented under its Democratic successors. But politics won't disappear from national security law, because citizens demand security as well as law. Political leaders will only embrace fixed rules when they accommodate exceptions. We will continue to have debates over the exceptions. Even the original expounders of modern natural law expected this result.

CONTENTS

I.   QUESTIONABLE CONSENSUS

II   INTERNATIONAL LAW OFTEN LIVES BY EXCEPTIONS

III. POLITICAL CRIMES AND THE GRADATIONS OF IMMUNITY

IV.  COMPETING PHILOSOPHIC PERSPECTIVES

V.   CONCLUSION

Jack Goldsmith's book, Power and Constraint, (1) is a genuine contribution to the history of our time. It offers a wealth of detail, reflecting energetic and fair-minded inquiry. I believe its underlying interpretation of events, however, is somewhat optimistic.

In Goldsmith's account, the debates of the Bush years achieved reform of some policies. For other polices, such debates established a more firmly grounded consensus, ultimately embraced by the Obama Administration. In Goldsmith's view, this shows that we have a system that will restrain impulsive presidential action. I accept every detail of Goldsmith's account, but I remain skeptical of his "relatively sanguine" conclusion. (2)

I don't say this as someone determined to counter the positions advanced by Professor Goldsmith. A few years ago, Goldsmith published (with Darryl Levinson) Law for States, in the Harvard Law Review, (3) expressing general skepticism about such law, noting parallel difficulties in international law and American constitutional law. I think the skeptical Goldsmith of that article offers a better perspective on recent disputes about national security law than the optimistic account on offer in Power and Constraint.

I. QUESTIONABLE CONSENSUS

As Goldsmith tells the story in his book, we had fierce debates about Guantanamo detention policies, about trial by military commissions, and about coercive interrogation practices in President George W. Bush's first term. Reforms were introduced into detention policy and into military trial procedures; a blanket ban was imposed on "torture." The most sensible or consensual compromises of the Bush era prevailed after they were "vetted, altered and blessed--with restrictions and accountability strings attached--by other branches of the U.S. government." (4) In short, the system worked.

I see the larger pattern differently. I am struck not by continuity but contrast. Partisan critics of the Bush Administration wielded legalist critiques when it was helpful in discrediting Bush policies. They then forgot their scruples when the White House was occupied by a president who was more to their liking (at least in general). That left the Obama Administration free to disregard legal constraints on the executive and to disregard even the policy compromises supposedly settled by the previous debates.

Start with the issue of detention. The Obama Administration came to office promising to close the detention facilities at Guantanamo. It is true (as Goldsmith records) that congressional opposition forced the new administration to abandon plans to move Guantanamo detainees to U.S. prisons and arrange for civilian trials of detainees in the United States. (5) But the Obama Administration was not willing to develop a new policy to determine when newly captured terror suspects could be brought to Guantanamo. Perhaps it was unwilling to offend the political constituency that still expected Obama to close down Guantanamo and so did not want to be seen expanding rather than diminishing the number of detainees there. …