Jack Goldsmith's new book, The Terror Presidency, has come out ahead in recent reviews of Bush Administration books, the most recent by Anthony Lewis and David Gergen. Not so fast, says Steven Griffin at Balkinization, taking up the question of whether the fear of future prosecution, central to Goldsmith's story, holds up.
Goldsmith's book is clearly one of the more important of the new spate of Bush books, but this is the first good review I've seen that actually critically engages Goldsmith's thesis. Some reviews argue that the arguments in the book are compelling because they are a critique of a conservative administration by a conservative, rather than because the evidence lines up. Griffith writes, in part:
Goldsmith portrays an executive branch increasingly “ensnared by law.” He contrasts this with the situation during WWII. His account is that FDR felt free to ignore his own lawyers, including Attorney General Biddle, whereas the Bush II administration had to consult lawyers before the CIA could cross the street. He also cites Quirin, the Nazi saboteur case, relied on repeatedly (as he notes) by the Bush administration. The idea is that in Quirin, swift justice was dispensed, blowing past legal technicalities such as due process. We couldn’t do that today.
Why? A radical change in “law and legal culture.” There were legal revolutions in civil rights, an increase in judicial power and “rebellions and disclosures.” There were new restraints on executive power such as the War Powers Resolution and independent counsels to enforce them (Goldsmith implies the counsels enforced the WPR and influenced presidential war power – news to me). The Bush II administration was very aware of these restraints and worried by their implications for the 9/11 war, the war set in motion by the September 2001 AUMF....
Independent counsels just waiting to prosecute Bush officials? That is a strange notion. Republicans gave up on independent counsels once and for all after the Iran-contra prosecution, which indeed ran for years and outlived any reasonable purpose. Democrats of course gave up after Ken Starr lost his head and the law expired in 1999. Maybe Goldsmith is thinking of the power of the Attorney General to appoint special prosecutors such as Patrick Fitzgerald in the Scooter Libby case. But this rings false. Goldsmith notes the 9/11 AUMF, but not what it meant politically, which is that Congress signed on to the war against Al Qaeda on a bipartisan basis. This doesn’t mean everyone in the executive branch had a get out of jail free card. It is highly implausible, however, that anyone could be prosecuted for acts authorized by those in authority taken in pursuance of the war. Politically speaking, how would such prosecutions get off the ground? Who would bring them? Perhaps the party that opposed the 9/11 war? There is no such party. So Goldsmith ignores the inescapable political element in constitutionalism. The 9/11 war was authorized by Congress and the people of the United States. No one needs to worry about post-hoc prosecutions on the basis of vague laws because everyone was in the same boat, politically speaking.
The rest is here.