Final Response to David Cole

Jack Goldsmith
Friday, December 17, 2010, 8:10 PM
I disagree with the characterization in David’s latest post of Bush administration practices.  But I am not going to change his mind on that issue, so I will end this exchange on my side by noting points of agreement.  I agree, and have long argued, that the Obama administration is more restrained in legal argumentation and rhetoric than the Bush administration.  I also agree, and have long argued, that this approach leads to more sustainable counterterrorism policies.  What is remarkable about the Obama restraint is that – despite campaign rhetoric and

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I disagree with the characterization in David’s latest post of Bush administration practices.  But I am not going to change his mind on that issue, so I will end this exchange on my side by noting points of agreement.  I agree, and have long argued, that the Obama administration is more restrained in legal argumentation and rhetoric than the Bush administration.  I also agree, and have long argued, that this approach leads to more sustainable counterterrorism policies.  What is remarkable about the Obama restraint is that – despite campaign rhetoric and early expectations to the contrary, and with the exception of CIA programs on interrogation and black sites – it has led to little if any change in substance from late Bush administration practices concerning war v. crime, military detention, military commissions, habeas corpus, state secrets, surveillance, and more.  This is not a “gotcha” point.  It is a point about how consequential the Constitution’s checks and balances (both inside and outside the executive branch) were during the period 2003-2009 in modifying early presidential practices and in putting them on more legitimate ground.  As David's initial essay and subsequent defenses of the Obama administration illustrate, the Obama administration built on and broadened the national consensus inherent in these modifications.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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