Power and Constraint: National Security Law after the 2012 Election

By Goldsmith, Jack | Case Western Reserve Journal of International Law, Fall 2012 | Go to article overview

Power and Constraint: National Security Law after the 2012 Election


Goldsmith, Jack, Case Western Reserve Journal of International Law


Thank you very much, Michael. And thanks to you and everyone at the Cox Center for organizing this conference and inviting me to speak. The title of my lecture derives from my book Power and Constraint: The Accountable Presidency After 9/11. (1) Today I will talk about the themes of the book as they apply to the topic of this conference.

The title of this conference invites the question: What's at stake in this election for presidential power and foreign affairs and national security law? My basic answer is that relatively little is at stake. This is not a claim about whether our policy toward Israel or Iran or China will change. I'm not an expert in those fields, and I believe such things are hard to predict in any event. Rather, I'm going to focus on what might be called "legal policy" topics related to presidential power, national security law and foreign relations law. My claim is that legal policy in these areas will continue on the same basic track of the last few years regardless of who is elected president.

This prediction is not based on an analysis of campaign speeches or party platforms. The 2012 Republican platform said hardly anything about national security legal policy issues. But even if it did, I don't think it would mean much for a possible Romney presidency. If you think I am wrong, if you believe that platforms matter, and if you are inclined to think there will be a big difference between a President Obama and a President Romney on the issues before us, I invite you to think back to how much President Obama promised he would change President Bush's policies during the presidential campaign of 2008. (2)

In fact, as we all know now, despite these pledges, and contrary to expectations, President Obama was much more aggressive than expected in asserting presidential powers. (3) In many contexts, he continued late Bush-era policies (such as state secrets, surveillance, military detention). In other contexts, he continued but accelerated trends that prevailed in the late Bush Administration. Consider three examples of the latter phenomenon. First, the Obama Administration ended the CIA interrogation and black site program. But that program was dying and practically non-operational during the last two years of the Bush Administration. (4) Second, Obama ramped up targeted killings once in office, but he was actually continuing a trend of ramped-up targeted killings during the last two years of the Bush Administration. (5) Finally, President Obama worked with Congress to tighten the rules for military commissions, but those changes were relatively small and continued a trend that had begun in 2002. (6)

Understanding the structural factors that led President Obama to continue President Bush's policies in these ways is the key to understanding why our basic national security legal policies will persist beyond the next election regardless of who is president. Obviously, if President Obama wins the election, he can be expected to pursue the same basic policies that he followed during the first four years. The more interesting claim is that if Romney wins the election, he won't change Obama's policies much. So what are the structural factors that led Obama to follow Bush and that would lead Romney, if he wins, to follow Obama?

First, and most obvious, is the responsibility of the presidency. It is a truism that governing is much more difficult than campaigning. The occupant of the Oval Office has undelegable responsibilities for the security of the nation (and in many respects for the security of the world). Every president knows that he is invariably responsible for national security catastrophes. This responsibility focuses every president's attention, and causes him to be risk averse about national security and to spend an inordinate amount of time and energy protecting national security.

Second and relatedly, when the president enters the Oval Office, he gets access to national security information that the public cannot see. …

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