War Is Too Important to Be Left to the Lawyers

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War Is Too Important to Be Left to the Lawyers The Terror Presidency: Law and Judgment Inside the Bush Administration By Jack Goldsmith (W.W. Norton, 256 pages, $25.95)

Reviewed by Michael Barone

Memoirs of presidential appointees who have left office in unhappy circumstances usually take the form of angry screeds. Not so with The Terror Presidency, by Jack Goldsmith, the Harvard Law professor who served less than a year as head of the Office of Legal Counsel in the White House. Naturally the publisher's press release and the first press accounts focused on his disagreements with administration policy. That's the way publishers sell books and the mainstream media attempt to sway opinion. But overall this is a careful and thoughtful book by a conservative lawyer who makes it clear that the threat of a terrorist attack imposes a tremendous burden on responsible officers of government, most of all the president. They know that thousands, perhaps tens of thousands, of people could die if they fail. Opposition party politicians, judges, and critics in legal academe, Goldsmith reminds us, do not bear this burden. Goldsmith did.

And he approved of much of administration policy. He continues to believe, as he did as a law professor, that the United States should not subject itself to the International Criminal Court. He believes that it was proper to call the conflict with al Qaeda a war and that it was legal to invade Iraq. He believes that the president has the power to detain enemy combatants, to deny them prisoner of war status, and to try them by military commissions.

Where he disagrees with the administration is on the question of whether, on particular issues like the NSA terrorist surveillance program, it should "go it alone, in secret," or seek authorization from Congress. Goldsmith tended to favor the latter. David Addington, then Vice President Dick Cheney's counsel and now his chief of staff, tended to favor the former, and almost always prevailed-at least until court decisions forced the administration to go to the Hill. Goldsmith argues that, although Congress might have given the administration less authority to act than it wanted, the administration would have been better off in the long run going to the Hill. He cites the legislation Congress eventually passed on military tribunals and terrorist surveillance in support ofhis case. But he also tells us enough about the other side's argument-that the administration needed maximum flexibility to act right now-to allow readers to reach their own decision. He expresses admiration for Addington's motives and, except for a stray reference to his "crazy ideas," is a model of civil discourse.

I leave it to readers to resolve the Goldsmith-Addington argument. What was most striking to me about The Terror Presidency is the picture it presents of an overlawyered war. "Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death." There are, Goldsmith tells us, 10,000 lawyers at the Pentagon and more than 100 at the CIA. They are called on to approve-or disapprove, or limit-every weapon and almost every military target and every intelligence mission. This was not the case, he points out, in World War II, when Franklin Roosevelt "acted in a permissive legal culture that is barely recognizable to us today. …