Criminal Justice & the Rule of Law

Reviews of “Power and Constraint”

Jack Goldsmith
Wednesday, June 13, 2012, 4:46 PM
I have not linked to the reviews of my book Power and Constraint as they have appeared, but by now there are enough reviews – by Gary Schmitt in the Weekly Standard, Christopher Caldwell in the NYT, Roger Lowenstein i

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I have not linked to the reviews of my book Power and Constraint as they have appeared, but by now there are enough reviews – by Gary Schmitt in the Weekly Standard, Christopher Caldwell in the NYT, Roger Lowenstein in Business Week/Bloomberg, Anthony Dworkin in the Washington Post, and Steven Aftergood at Secrecy News – to permit general comment. The motivation for the book was to rebut widespread claims that the post-9/11 Terror Presidency is legally unconstrained by showing that the presidency is embedded in a novel web of consequential internal and external legal and related constraints.  I am very pleased that none of the reviewers questions this part of the argument.  Instead, they focus on normative implications, which I addressed in Chapter 7.  Schmitt, Caldwell and Lowenstein correctly note that I am less than clear on the desirability of the post-9/11 accountability system.  I think it is a necessary response to a very powerful presidency, and I believe it helped to achieve a consensus on counterterrorism policies, and to legitimate them.  But I am much less certain whether it is achieved the proper balance between liberty and security.  My skepticism is mostly grounded in factual uncertainty about the threat and the effectiveness of policy responses to it. Caldwell thinks a heavily lawyered army is “predictable” and thus “vulnerable,” and that the new accountability system “leaves us, on the one hand, more likely to fight our wars in a way we are not ashamed of and, on the other, more likely to lose them.”  There are costs to a lawyered military, which I describe in the book.  But the benefits of a lawyered military, which I also describe in the book, extend far beyond fighting wars we are not ashamed of, and include disciplined and thus more effective fire, and minimization of strategically destructive bad acts.  Also, of course, one of the great lessons of the last decade is that in war against terrorists, fighting in ways we are not ashamed of is vital if we are to be victorious.  It is hard for me to assess with confidence whether the benefits of law and lawyers in the military outweigh their costs.  My strong hunch is that they do, and the military establishment itself, in contrast to Caldwell, agrees. Schmitt too wonders whether the accountability system “leaves the government sufficiently prepared to handle the next great national security challenge.”  He also questions whether a “fairly reasonable balance between executive power and its constraint has been struck,” and states that “a question can be raised as to how stable that balance is, in fact, because several of the new checks on presidential power—investigative journalism, the new media, legal advocacy groups, and inspectors general—are themselves largely unconstrained by other players or institutions.”  Schmitt is right that these actors are largely unconstrained, or at least are not nearly as constrained as the presidency.  But they are not nearly as powerful as the presidency either.  I do not have a magical metric for answering Schmitt’s question, which is really a form of the larger normative question whether the constraints are too demanding. Dworkin has the opposite normative concern.  He says that I don’t “consider whether a set of policies that has broad domestic legitimacy might nevertheless be inappropriate . . . . ,” by which he means too restrictive of civil liberties  This is a criticism of the book I have heard from many on the left side of the aisle (including in this reaction to an excerpt of the book from the Center for Constitutional Rights): Even if the accountability mechanisms generated political and legal consensus, that consensus is bad or immoral, and we (the nation) will later regret the policies we now generally agree accept.  This speculation may prove right, just as it may turn out that we regret our current array of counterterrorism policies as too restrictive if there is another large-scale attack.  I cannot predict such things.  But I am confident that our system has been and remains pretty good at generating new information about excesses in either direction, and in responding to them.  As I said in Chapter 7:
While it is difficult to make firm conclusions about optimal counterterrorism policies and their associated accountability mechanisms, the experiences of the last decade provide a second-order solace. The presidential [accountability system] incessantly generates new information about the terror threat and the appropriateness and efficacy of counterterrorism measures to meet this threat, and our flexible political and legal institutions respond relatively quickly to this information.  The dizzying and often painful swirl of investigations, lawsuits, reviews, reports, and accusations that characterize the presidential [accountability system] forces the government to recalibrate its counterterrorism policies and accountability mechanisms constantly based on ever-changing information and ever-changing legal and political constraints.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. 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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