Monday, November 5, 2007

Katyal on Goldsmith

Neal Katyal, Georgetown, has an extensive review of Jack Goldsmith, The Terror Presidency, in the current issue of The New Republic. Highly recommended. Katyal is a brilliant constitutional scholar and advocate, and not an uninterested party in this matter, having taken on the Bush Administration as the lawyer for Guantanamo detainee Salim Ahmed Hamdan in Hamdan v. Rumsfeld. He suggests, in part:
At its best, the book deftly advances two central claims: that the law governing presidential action has markedly shifted in recent years to constrain the president and his advisers; and that the president faces vast pressures to push the law to its limit because of the fear of another attack, particularly since he will be the focus of blame should an attack take place. About both of these matters he is persuasive, and it is one of the strengths of Goldsmith's book that even as it dissents from the Bush administration's understandings of the Constitution and national security, it takes the threat to American security very seriously.
Sometimes, though, the book veers into a rather strained attempt to defend the administration, perhaps out of a sense of loyalty. In a passage that some are citing as proof that the administration has acted with fidelity to the law, Goldsmith argues: "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. The administration has paid attention to law not necessarily because it wanted to, but rather because it had no choice." But to say this is to say nothing at all. No one doubts that the administration "paid attention" to legal constraints--they hired lawyers such as Yoo to "pay attention" to these constraints by finding ways around them. Paying attention to law so as to loophole it is not much of a defense of the administration. It is ironic that many who pick up Goldsmith's book on the basis of its title will no doubt assume that the book is about how the president has created terror, instead of about his response to it. But since the administration departed from longstanding traditions and embraced instead a radical constitutional agenda of its own, such a view of what is described in Goldsmith's book is, in significant ways, correct.
Read the rest here.