Tuesday, October 23, 2007

Jack Goldsmith on The Terror Presidency

On Sunday I went to Politics and Prose and listened to Jack Goldsmith discuss his book The Terror Presidency. A couple of weeks ago, Jeffrey Toobin talked about his book The Nine: Inside the Secret World of the Supreme Court on Book TV. He noted that some liberals had a tendency to believe that conservatives just weren't quite well informed enough and if they were so, then they would be conservative. So these liberals were often befuddled by a smart conservative.

Jack Goldsmith would be one of them. His presentation was terrific and before he admitted to being a law professor, his style made clear he knew how to talk so listeners could take notes and retain the information.

The reviews were good but misinterpreted a little. The title – The Terror Presidency was not to imply that this President is a terrorist. But rather was meant to conjure three specific qualities of the Presidency, the office of the Presidency. The title intended to
  1. note that the Presidency exists in an age of terrorism.
  2. evoke the idea that the Presidency is deeply fearful
  3. acknowledge that Presidents make us fearful. This was as true of FDR and Lincoln as it is of Bush.

There are two fears that compete every day and exist in constant tension.

On the one hand, there is how fearful they are in the executive branch about the next attack. They are more fearful than they let on. Why are they afraid?

  1. they read the threat matrix every day
  2. They worry that the threat matrix understates it. They feel they don’t have enough data to fight the threats, the probabilities are unknown, and actionable intelligence is lacking.
  3. They have a deep sense of responsibility about innocent American being killed, especially since they failed on 9/11

Again in Franklin Roosevelt’s time as well as Lincolns there were those same intense fears, and these set of fears let to relentless aggressiveness.

The other competing fear, in opposition and in tension with the fear of the next attack is a fear of law.

Since the 1970s, laws and restrictions of power on the Presidency evolved. These curbs grew out of the abuses of the government and the CIA during the 50s, 60s and 70s. Certain acts were made crimes. And those laws were new, relatively.

In earlier times, there was a different environment and different culture. Roosevelt and Lincoln, as they considered the fear and responsibility of their office and contemplated their acts and the level of aggressiveness, asked themselves: would democracy support this? And then they did all they could to ensure that support.

Now, with the crimes created in the 1970s, this Presidency asked itself – will we be prosecuted? Are we committing a crime? Will we be indicted when we travel abroad? Could an independent counsel investigate? So they asked for lots of opinions and feared the law. They got legal interpretations on often vague criminal law.

The 9/11 commission noted that our government was too risk adverse. That was one of the criticisms – that the lawyers at the C.I.A. were too restrictive and cautious. We need to be aggressive but not cross the line. The problem is that often that line isn’t clear, and when in a stance of assertiveness, moving toward that line, the odds and fear of crossing it is real.

Also, of important note – one of the central reasons why the laws were unclear and legal interpretation difficult is that that they were written for engagement with or fighting again state actors. In post-9/11, often the opposing force is a non-state actor. Al Qaeda is a non-state actor. So figuring out how laws from the 1970s, written with a different type of enemy in mind, challenged the administration and lawyers alike.

So that tension of fear of law and fear of terror will not go away. The central message of his book is that this particular tension is a problem.

The mistakes of this particular administration take two or three forms.

  1. They declined to go to Congress to make the laws clearer, more appropriate to non-state actors, updated to the new environment. This omission is especially remarkable because the Congress was controlled by the same party as the Presidency. They resisted doing so, in his view, because they worried that going to Congress would tie their hands. Didn’t want to ask and be told no, so better not to ask. Goldsmith believes this is a misplace notion of power. Such a stance avoids short term pain, but the lack of engagement with Congress cheated the administration of education and the ability to learn from their mistakes.
  2. They were too secretive. Not with the public, but with the relevant Congressional parties. They did not benefit from the input of the pertinent Committees of Congress. This is bad because there is no critical feedback and the process of making decisions and judgement calls becomes insular. Democracies are powerful because there are mechanisms to learn from mistakes and chances to change course. This administration chose not to be secret, not to defend policies, and in doing so took away needlessly from legitimacy.
  3. They failed to engage politics. Politics is not a dirty word. Politics is a way of avoiding mistakes. Roosevelt understood three things clearly were necessary as the Presidency pushed up toward the edge of the line. He understood, and acted as though he understood, the importance of
    1. trust and credibility
    2. congress on board
    3. consensus building

Notes on the Q& A period to follow.

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