The constitutional seesaw in the war on terror.
Apr 30, 2012, Vol. 17, No. 31 • By GARY SCHMITT
A presidential candidate who runs against the foreign affairs record of an incumbent often appears to adopt policies that are more in line with the previous occupant of the Oval Office than not.
Khalid Sheikh Mohammed
Nor is this notion of continuity in policies an especially new refrain: The first “modern” political history written by an American, Henry Adams’s History of the United States of America During the Administrations of Thomas Jefferson and James Madison, is famous for its finding that, as presidents, Jefferson and Madison followed a foreign policy track much like that of their Federalist predecessors—and in spite of their harsh criticism of George Washington and John Adams. So it shouldn’t be that much of a surprise to discover that President Obama’s counterterrorism policies, with some exceptions, are not all that different from those of George W. Bush.
But of course, it is a surprise. Candidate Obama was unsparing in his criticism of the Bush administration’s handling of the war on terror, repeatedly suggesting that President Bush had turned his back on the rule of law, endangered civil liberties, and upended the very principles of constitutional government as the Founding Fathers had envisaged.
Yet we now have a sitting President Obama who continues to deal with Islamist terrorism as though we are at war, will use deadly force against an American citizen and anyone else deemed a threat (regardless of whether that individual is anywhere near an ongoing field of combat), claims the prerogative to withhold information from the public and even judicial proceedings based on a state-secrets privilege, asserts the right to detain individual terrorist suspects without trial, tries suspected terrorists in military commissions, has not attempted to roll back any of the most important features of the Patriot Act or the expanded surveillance program put in place by the previous president and Congress, and, officially, has not forsworn the practice of rendition, in which suspected terrorists are moved from one country to another to be interrogated and possibly tried by governments less fastidious than ours.
For Barack Obama’s supporters on the left, to say his policy choices have been a disappointment would be an understatement.
Explaining how this came about is Jack Goldsmith’s provocative new book. As in his previous work, The Terror Presidency: Law and Judgment Inside the Bush Administration, Goldsmith, Harvard law professor and former assistant attorney general, provides an abundance of rich detail, is fair-minded to the nth degree in assessing arguments, and consistently forces readers to consider anew their own assumptions about policies and constitutional politics. Not everyone will agree with his conclusions, but only a narrow-minded partisan will have failed to learn from reading Power and Constraint.
According to Goldsmith, there are a number of reasons why Obama’s first term counterterrorism (CT) policies look more like those he inherited from Bush than not. Some are straightforward and unsurprising. To start, the terrorist threat is a fact of life and, once in office, the Obama team could not pretend otherwise if it didn’t want to risk its own 9/11. Moreover, they soon discovered that, after eight years of dealing with the threat, the Bush team had put in place policies and practices that, by and large, were working. And finally, the momentum for continuing policies was reinforced by the fact that a number of the key players in the national security bureaucracy dealing with the counterterrorism threat remained in place after Bush had left office.
What makes Power and Constraint especially interesting, however, is the case it builds for how the traditional system of constitutional “checks and balances,” combined with a host of new sets of “eyes” on executive behavior, has pushed and pulled two very different presidents into a similar path when it comes to CT policies.
On the traditional checks-and-balances front, Congress and the courts have shown less deference to the presidency than in previous wars, and certainly took a more direct hand in modifying several key Bush decisions on how the war on terror was to be prosecuted. According to Goldsmith, the result was a far more settled consensus within the branches of government about CT policies and practices by the time Obama was sworn in as president. And when Obama attempted to move away from that consensus—for example, by attempting to close Guantánamo or try 9/11 mastermind Khalid Sheikh Mohammed in a civilian courtroom in New York City—he found himself running up against that consensus, and unable to change it.
If this is not your grandmother’s presidency when it comes to the exercise of the commander in chief’s authorities, it is not only the courts and Congress that make this a different era. As Goldsmith demonstrates, this same lack of deference is now found in spades with a post-Watergate press corps that believes its job is to ferret out and publish virtually any secret it can. Toss into this mix significant new reporting requirements to Congress when it comes to intelligence activities, the establishment of inspectors general throughout the national security bureaucracy who report as much to Congress as to their own agencies, the huge growth and influence of lawyers in operational planning, and the proliferation of (typically) left-leaning legal advocacy groups willing to bring suits against the executive’s war policies at the drop of a hat, and you have an environment in which the president’s ability to exercise his unique capacities for “secrecy, decision, and dispatch” is far less certain.
Now, a president can either learn to live with this new set of environmental factors, or he can fight against it. But as Goldsmith suggests both here and in The Terror Presidency, the Bush White House’s efforts to do so ultimately did not succeed, and cost them important political capital.
Goldsmith takes seriously the very real problems this new system of “distributed checks and balances” presents when it comes to executive branch unity, accountability, and constitutional capacity. That said, he remains relatively sanguine about how it has played out in practice. Faced with a war whose end is undefined, it was (according to Goldsmith) inconceivable that straightforward assertions of presidential power by the Bush White House—no matter how well based on precedents—could withstand the test of time and the political environment in which presidents are now operating. But the new “constraints imposed” on the presidency have, intentionally or not, in this instance “strengthen[ed] the presidency and render[ed] it more effective over the medium and long term in carrying out its national security responsibilities” by grounding them in the broader, legitimating concurrence of the courts, Congress, and the public at large.
Power and Constraint concludes by arguing that this new era of “accountability” is here to stay and that, on the whole, a fairly reasonable balance between executive power and its constraint has been struck. Yet 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.
Moreover, the Obama White House is often reluctant to suggest that its current authorities rest on anything more than existing statutes, avoiding any hint that, like the Bush administration, it is making a claim of executive prerogative. Should there be public pressure to alter the laws—brought about by new leaks, new scandals, new investigations—the current and subsequent administrations may find themselves less well positioned to counter those changes they see as tampering with the president’s ability to protect the nation.
Whether this leaves the government sufficiently prepared to handle the next great national security challenge is anybody’s guess. Power and Constraint seems to lean in the direction that it does but, like the honest book it is, provides more than enough material to make one wonder if that will be the case.
Gary Schmitt is director of the Marilyn Ware Center for Security Studies at the American Enterprise Institute.