The constitutional seesaw in the war on terror.
Apr 30, 2012, Vol. 17, No. 31 • By GARY SCHMITT
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.