Books discussed in this essay:
The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American Founding, edited by Morton J. Frisch
The Terror Presidency: Law and Judgment Inside the Bush Administration, by Jack Goldsmith
As Samuel Johnson said of the prospect of hanging, war concentrates the mind wonderfully. One might add that an unpopular war concentrates a president's political enemies as little else. Just ask George W. Bush. From the moment he determined that Saddam Hussein's regime had to be removed as a grave threat to American security, the Democrats went into hard opposition and have remained so ever since. Sixty percent of their party in the House, and forty percent in the Senate, voted against the authorization of military force in Iraq. The initial military campaign was brilliantly executed, but as the postwar occupation bogged down between 2003 and 2006, the president's popular support suffered a gradual but inexorable decline that made it progressively easier to exaggerate his deficiencies and minimize his success as a war leader. Like Plunkett of Tammany Hall, the Democrats "seen their opportunity and tuk it," regaining control of Congress in the 2006 elections. With that turn, whatever chance Mr. Bush had to regain public confidence disappeared almost altogether, as witness his failure to obtain political traction from the remarkable success of the military surge during the past year.
Lacking strong public and congressional support, President Bush's power now rests heavily, if not exclusively, on the legal authority vested by Article II of the Constitution. That is no small thing, but it is not much honored by the Democrats, who, now that they control Congress, insist that congressional sentiment is the best measure of what the public wants and needs. The Constitution takes a different view of such matters. Article II was designed, among other things, to insulate presidents against transient impulses and inclinations on the part of Congress or even the public that may not coincide with the nation's true interests. Congressional protestations to the contrary, such is clearly the ground on which Mr. Bush has decided to stake his reputation and his presidency.
Despite the war's unpopularity, and despite their rhetoric about presidential hauteur and incompetence, the Democrats have been reluctant to endorse a funding cut-off, and for good reason: such a step would make them accountable for the consequences of a precipitate military withdrawal, and require them to articulate and assume responsibility for an alternative policy of their own. Rather than run that risk, which would among other things divide their party, they have launched a series of guerrilla raids by congressional committees. Unlike troop-withdrawal or funding cut-off legislation, which has little chance of passing in any event, committee investigations are a relatively cost-free way to keep a president on the defensive. In most cases, they need not result in nor even aim at legislative remediation; they are easily staged, and because they occasionally generate a whiff of misfeasance or scandal, they can be counted on to attract friendly media attention. Above all, by focusing on past mistakes rather than current successes, they can continue to draw blood from an already weakened presidency.
At this point, it matters little that Congress authorized the war against Iraq to begin with. That was then and this is now. As many presidents before Bush have discovered, Congress can be notoriously fickle about war. For now, it suffices politically for the president's congressional opponents to say that Bush lied, or otherwise misled or cajoled them by various means to support his war. In so doing, the argument continues, Mr. Bush has abused his authority as commander-in-chief and arrogated to himself powers that the Constitution says should be shared with Congress. The merits of this last claim aside, its assertion reminds us that major partisan and ideological disagreements quickly translate themselves into articles of constitutional disputation.
The argument that a president may be acting not only unwisely but unconstitutionally taps into a venerable republican tradition, which articulates a strong preference for representative assemblies and a deep suspicion of executive power. That tradition, whose roots run deep into American history, and even beyond, is not however the only motif of American political discourse and practice. If anything, reservations about legislative vice and folly constitute an even stronger theme in early American thought, as even a casual reading of The Federalist will attest. The immediate post-Revolution predilection for strong legislatures and weak executives clearly reflected the influence of pristine republican theory; but practical experience exposed the doctrine's deficiencies, which in due course the Constitution proposed to remedy. In a nutshell, the Constitution modified and refined republican theory to make it more hospitable to executive authority; it did so by creating something the world had never seen before—a genuinely powerful, partly autonomous, yet still republican chief executive. The division, and in some instances the sharing, of powers between the branches ensured that Congress would be able to check the executive, but not to the point of making the presidency the mere agent of congressional will. For the separation of powers also meant to energize the presidency by freeing it from legislative dominion.
The American political tradition thus tugs in two directions at once. We seek to limit executive prerogative by empowering the legislature to restrain it; at the same time we want the executive to have sufficient discretion to address contingencies Congress may have failed to anticipate, or anticipated wrongly. As Harvey Mansfield has elegantly argued, these are in important respects incommensurable goals, no matter how hard one tries to reconcile them (see his "The Case for the Strong Executive," CRB, Spring 2007). The effort to achieve both ensures that we will always have, so to speak, a congressional party and an executive party. That fact became apparent early on, when Alexander Hamilton and James Madison went at it concerning the locus of the power to conduct foreign affairs.
Their argument was occasioned by President Washington's 1793 proclamation of neutrality, and the central issue was whether the Constitution empowered him to issue the proclamation sua sponte, or whether it vested the requisite authority in Congress. Hamilton, writing as "Pacificus," weighed in on the president's side, arguing that the conduct of foreign affairs was an inherently executive function; that by vesting the executive power in the president, the Constitution meant to convey all capacities arising from the nature of the power; that the particular grants of power in the remainder of Article II were meant to illustrate, not limit, the general grant; and that, absent express restriction elsewhere in the Constitution, presidential power to conduct foreign affairs was to be presumed. Madison, replying as "Helvidius," argued that by vesting Congress with the power to declare war, the Constitution meant to convey control over the substance of foreign policy to the legislature; that the president's powers over the subject were therefore largely administrative; and that such exceptions to this broad reading of legislative power as might be inferred from Article II should be narrowly construed.
For all the embellishments that have been added to the argument during the intervening 215 years, a case can be made that subsequent debate is but an extended footnote to the opposing principles articulated by Hamilton and Madison. In divining the Constitution's meaning, moreover, experience has added its own instruction. George Washington, conspicuously conscious that he was establishing precedent in almost everything he did, respected and often deferred to the legislature's separate constitutional authority; but, in foreign affairs particularly, he never doubted that the Constitution vested the executive with a large reservoir of discretion that was not dependent on congressional assent. President Washington's example, we may say, made the idea of presidential prerogative respectable in ways that Hamilton's argument alone could not.
Washington's successors in office, while lacking his prestige and often his prudence, nevertheless relied on his example and cited its authority as justification for their actions. In this, they were only sometimes successful, which is why subsequent experience is variously cited on both sides of the continuing Hamilton-Madison debate. Nineteenth-century political development saw long periods of actual or attempted legislative hegemony, during which echoes of Hamilton's broad reading of implied or inherent presidential powers were seldom or only faintly heard; but one can also observe a persistent pattern of executive assertion that cannot be reconciled with Madison's traditional republican preferences. How, for example, are we to evaluate Jefferson's presidential tenure, which was Madisonian in theory but Hamiltonian in practice? Or Andrew Jackson's, which combined a Hamiltonian understanding of executive power and a Jeffersonian preference for a limited national government? On the meaning of presidential war powers specifically, few presidents can match the claims asserted by James K. Polk, which were sharply criticized by Congressman Abraham Lincoln. But in the crisis of the Civil War, President Lincoln not only made maximum use of his discretionary powers as commander-in-chief; he also argued that the Take Care Clause and the oath of office provided additional constitutional authority for presidents to call on during war. Other presidents also relied on the force of Hamilton's logic and Washington's example to exercise independent constitutional judgment when they thought the public good so required. Despite strong dissenting views, 19th-century experience when taken whole tends to confirm that a capacious reading of executive power was here to stay. Madison to the contrary, the Constitution had clearly added something new and important to the traditional republican understanding of the executive.
The Modern Presidency
That fact has been obscured in large part because modern students of the presidency tend to read American political development through the distorting lens of Woodrow Wilson's thought. Under the aegis of his instruction, the growth of presidential power is acknowledged and applauded; it is said, however, to have arisen in spite of, rather than because of, the framers' Constitution. Wilson reserved his particular scorn for the separation of powers, which (along with much else in the Constitution) he read as a device to frustrate popular majorities; in practice, it had devolved into a system investing Congress with almost imperial authority, which it used for the most part to protect parochial interests or to interfere with the execution of national policy. For Wilson, many presidents had been reduced to frustrated errand boys of congressional will. There were notable exceptions, Abraham Lincoln most prominently, but these were just that, exceptions that proved the rule of congressional dominance.
Wilson's critique of the separation of powers ultimately gave birth to what is called "the modern presidency." By that is meant a presidency that uses the force of public opinion to initiate, and a large bureaucratic infrastructure to implement, national policy change across a broad front. According to Wilson, the achievement of that goal requires a president to rise above, or to work around, the artificial and outmoded constitutional barriers imposed by the separation of powers. But Wilson had a prescription: separation of powers would remain a force to be reckoned with, but with artful presidential leadership, the obstacles created by the Constitution could be surmounted, and Congress maneuvered into following the president's lead on important questions of national policy.
Although Wilson's scheme has not worked quite as he intended, it captured the imagination of intellectuals and political reformers who shared his antipathy to the Constitution and saw presidential power as the means to enact a progressive policy agenda. They have ever since bestowed special praise on the New Deal, which in their view is the apotheosis of everything Wilson had hoped for, indeed of almost everything good government ought to be. Accordingly Franklin Roosevelt's presidency has become the prototypical modern presidency, the model against which all subsequent administrations, mutatis mutandis, are now measured.
Assertions of Power
The federal establishment built and overseen by Franklin Roosevelt, however, was tiny compared to the elephantine establishment of today, whose dimensions, complexities, and contradictions almost beggar description (see my "Taming Big Government," CRB, Summer 2007). The imperative to control government has increased proportionally with its size, and as the only institution with the motive and capacity to do so is the presidency, presidential power has grown apace with the federal government's agenda. All presidents from FDR forward have sought to exert control from the center in an effort to achieve greater efficiency and policy coherence—a desire made all the more compelling because presidents are held politically accountable for the government's actions. Congress, in turn, has sought to frustrate these efforts by diverse means, such as dispersing power beyond a president's reach (e.g., independent agencies), limiting regulatory authority (e.g., legislative vetoes), or imposing detailed restrictions on the exercise of executive discretion generally (e.g., riders on authorization or appropriations bills).
Congress believes that such measures comport with the separation of powers as originally understood. In some respects, they do, but today's Congress, like the executive, appears to have succumbed to the ethos of Woodrow Wilson's constitutional thought. Having delegated much of its legislative authority to the executive bureaucracy, Congress has little choice but to attach as many strings as it can. As a result, its counter-assertions of power appear to be, and often are, as capricious as those it condemns in the presidency. Unlike legislatures of earlier eras, today's Congress is only episodically interested in exercising control over government; its primary interest appears to be to prevent the executivefrom exercising control. Least of all does Congress want to be held politically accountable for the actions of the administrative state; it is perfectly content to leave that burden at the president's door.
In an effort to rationalize the constitutional anomalies created by big government, the late Richard E. Neustadt famously argued that the framers created not separation of powers, but only separated institutions sharing power. If that is the case, however, then there's nothing left to argue about except power, or more precisely (as another famous political scientist put it), "who gets what, when and how." Under this new dispensation, the understanding that prompted the separation of powers seems to have dropped from sight entirely. The framers took for granted the necessity of power and the lust for its acquisition; but they also understood that the legislature and the executive possessed distinctive vices—in the former case a tendency toward vacillation and meddling, in the latter a tendency toward self-aggrandizement and pretension. The compensating virtue of the legislature was that it reflected a broad diversity of opinion; the compensating virtue of the executive was its capacity for quick, decisive action.
In general terms, the separation of powers was intended to minimize the vices while promoting the virtues of each branch. After monkeying for over a century with the framers' Constitution, however, we seem to have gotten things quite backwards. The administrative state tends to multiply the occasions for legislative meddling and executive aggrandizement at the same time; to make matters worse, every assertion of power by one side tends to induce a counter-reaction by the other, which only deepens animosities and heightens suspicions that the opposing branch is exceeding its proper constitutional bounds. One might say that Woodrow Wilson's solution to the separation of powers has itself become a major problem.
If the framers' rationale for the separation of powers has been largely abandoned in the domestic arena, a mutant form of their original idea has of late acquired a certain purchase among critics of presidential powers over foreign policy and national security affairs. Ever since the Vietnam war, we have witnessed a steady profusion of scholarly writing advancing the idea that presidents have usurped powers the Constitution meant to vest wholly or substantially in Congress. Here too, we seem to have gotten things backwards, for if anything, the case for broad presidential discretion in foreign affairs is much stronger than in domestic affairs. That much should be clear, not only from Hamilton's reflections on the executive's virtues, but as well from the history of presidential practice, which made the gradual accretion of presidential power over foreign and military affairs in the 20th century more or less inevitable.
The current tendency of the chattering classes, however, is to celebrate presidential government in the domestic arena while expressing grave reservations about presidential government in external affairs. The intellectual gymnastics necessary to arrive at that conclusion are, to say the least, interesting. Scholars who have spent a lifetime extolling the virtues of a large social service state created and spurred by aggressive presidential leadership may now be found touting—selectively—the more modest pretensions of what they perceive to be the pre-modern presidency. In similar fashion, many who a generation or so ago portrayed Congress pejoratively as little more than "a convention of the envoys of locality" (the phrase is that of Henry Jones Ford, an early 20th-century political scientist), are now discovering unusual legislative virtues when it comes to the design and even execution of foreign policy.
The master of the now-you-see-the-original-Constitution-now-you-don't school, the font from whom all revisionist blessings flow, was the late Arthur M. Schlesinger, Jr., who brought his considerable rhetorical skills to bear on the subject in The Imperial Presidency (first published in 1973 and reissued in various slightly modified editions). The book was in part a post-Watergate, post-Vietnam period piece with decidedly partisan leanings, and in part a serious attempt to grapple with some of the adverse consequences of the modern presidency.
Alas, the former seems to have overwhelmed the latter. Schlesinger sought to distinguish the particular vices of Lyndon Johnson (some) and Richard Nixon (many) from the virtues (many) and vices (some) of the modern presidency in general. Schlesinger was perhaps above all anxious to preserve the New Deal legacy, or at least that part of FDR's legacy most pleasing to his own ideological preferences. This required him to ignore or skate gently over evidence showing that Roosevelt could be as high-handed, secretive, imperial, and non-law-abiding as Johnson and Nixon on all but their worst days. When he does address FDR's bolder assertions of unilateral presidential power, Schlesinger tends to explain them away in light of the great exigencies facing the nation, or to defend them on the ground that the president took care to involve Congress at critical junctures. The evidence he adduces in support of the latter proposition is plausible enough for many (though not all) of those events he chooses to highlight; but he ignores numerous episodes in which Roosevelt bullied Congress into complying with his will, or told it in no uncertain terms to butt out of presidential business.
Schlesinger's selective use of evidence does not entirely vitiate the value of his book, which contains many useful observations on the rise of presidential power in foreign and military affairs, as well as prudent warnings about its potential for abuse. He concludes with a sensible plea for moderation, suggesting, among other things, that presidents need to pay serious attention to congressional concerns and powers. But we scarcely needed Schlesinger to remind us of that. After you put down the book and ask what, precisely, he would do by way of institutional reform to prevent abuses of the sort he condemns in Johnson and Nixon, the answer is not much, if anything at all.
The New Legal Regime
Despite its fragilities, Schlesinger's argument neatly captured the paradoxical sensibility of contemporary liberals when addressing the modern presidency. And ever since its publication, critics of presidential initiatives in foreign and military affairs have used its scholarly and historical veneer to coat their arguments. His argument has enjoyed particular currency among President Bush's critics, and it appears to be the primary intellectual foundation for Harvard Law professor Jack Goldsmith's The Terror Presidency. He writes, "The person whose work I kept coming back to, the person who seemed to have the most insightful things to say about the presidency by far, was Schlesinger. I never met Schlesinger, but his influence is apparent throughout this book."
Goldsmith, like Schlesinger, seems somewhat ambivalent about presidential power, concerning which more in a moment. In the meantime, it needs be said that his book is a brisk, well-written, and earnest attempt to deal with some of the knottiest legal problems confronting modern presidents during wartime. No thoughtful reader can come away from it uninstructed, and we should be grateful that Professor Goldsmith undertook to enlighten us on such an important, indeed grave and complicated, subject. Anyone searching for nickel-in-the-slot answers to the sort of questions Goldsmith had to confront during his short tenure (October 2003-July 2004) as head of the Office of Legal Counsel (OLC) had better look elsewhere. That includes many who have heaped praise on Goldsmith for pulling the veil back on what they claim is a Bush-Cheney plot to establish an imperial presidency.
The Terror Presidency is in fact three different books at once. It is partly an apologia pro vita sua concerning the author's tenure at OLC, in which he distances himself from certain controversial legal conclusions reached by his predecessors—e.g., the memoranda defining torture. It is partly an insider's chronicle of certain dramatic episodes in the life of the Bush Administration, featuring heated confrontations about the scope of presidential authority. And it is partly a brilliant discussion of diverse legal restrictions that now encircle, indeed threaten to engulf, the presidency in time of war. The first two books show Goldsmith to be an honorable public servant who, under extraordinarily taxing circumstances, did his best to make things come out right for the Constitution, the country, and the presidency. That other equally dedicated, equally honorable public servants animated by the same concerns reached different legal conclusions only serves to confirm the difficulty of the issues they all faced, and continue to face, on a daily basis.
The third book may itself be broken into two parts, the first of which argues that on three critical issues—the torture question; the legal process governing the incarceration and trial of enemy combatants; and the expanded use of electronic surveillance—the administration pushed the envelope of unilateral presidential power too far. But even here, if you read between the lines, it's not clear whether Goldsmith's criticisms go to the merits of the executive's constitutional claims or primarily to the boldness with which they were asserted. The second part of the third book, which has been mostly ignored, argues that national security decision-making has been horribly over-lawyered, that decisions which were once thought to be essentially prudential are now surrounded if not strangled by regulatory vines and snares, including criminal penalties. This last argument may constitute the most important contribution Goldsmith makes in his book. Its central thesis is that a new legal regime now constrains the commander-in-chief's authority by inviting Congress and the judiciary to second-guess its exercise as never before.
The new legal regime is chiefly characterized by three components: post-Watergate, post-Vietnam legislation seeking to constrain the president's Article II powers, exemplified by such measures as the Foreign Intelligence Surveillance Act (FISA); the putative authority of contemporary international law theory, which undermines traditional conceptions of national sovereignty, especially those deeply rooted in American law and practice; and the increasing presumption by judges, from the Supreme Court to international tribunals, that they are empowered to qualify or countermand decisions made by elected officials. In consequence of these developments, contemporary presidents who rely more or less exclusively on the constitutional powers vested by Article II face significant political and legal risks that their predecessors (like Lincoln and FDR, for example) never had to confront. Goldsmith's principal criticism of the Bush Administration is that its claims for relatively unfettered presidential power in wartime run smack up against the new legal regime, and that the continued assertion of those claims may, paradoxically, diminish rather than enhance presidential authority.
Goldsmith is right to emphasize the risks created by the new legal regime. Still, one wonders whether they would be half so ominous if the American military venture in the Middle East were not so unpopular at home and abroad. President Bush may be rightly criticized for various sins of commission and omission in the design and execution of his war policies, but those policies appear to rest on a number of realistic assumptions: that Islamic-inspired terrorism poses a dire threat, not only to American lives and interests but to those of all civilized nations; that the threat is best deterred by taking the fight to the enemy; and that, at the end of the day, American power is the only force that can prevent much of the world from descending into barbarism.
These assumptions are, to be sure, arguable; but, contrary to the loony Left, they are neither maniacal nor rooted in yearnings for imperial conquest. Not the least of Mr. Bush's faults is his failure to articulate a consistent vision of what is at stake, and that failure has cost him dearly in garnering popular support for what promises to be a long and very difficult undertaking. But the fault is not alone his. Unlike prior international conflicts, the confrontation with messianic Islamism is a new kind of war, which will tax American ingenuity and power for a long time to come. Learning to cope with this new threat has entailed a good deal of trial and error, which necessarily tries the patience of a public that wants to make all wars look like World War II. Nor has it proven popular with many nations of the world, who think they can strike bargains with terrorists, and who are long practiced in the art of condemning the United States even as they enjoy the protection of its power.
When a president believes, as Mr. Bush quite obviously does, that American liberties and interests need to be protected despite the war's unpopularity, he may be forgiven for trying to take maximum advantage of the legal authority vested by the Constitution in the Office of President. And if that means running risks with Congress or with domestic and international judicial tribunals that his predecessors did not have to confront, he may perhaps also be forgiven, considering all that is at stake, for concluding that those risks are worth taking. This is where Professor Goldsmith's legal cautions bring us back to the rationale that led to the creation of the American presidency. At the heart of that rationale is the understanding that there are times when the rule of law may be insufficient to achieve the very goals it seeks to protect. At such times, it is good to remember that institutional formalities cannot always displace the need for forceful statesmanship.
It is also good to remember that the law is not always precise in its instructions. Most critics of the administration, for example, tend to assume that there is only one legally acceptable interpretation of "torture" as that term is defined in international law and the 1994 Prohibition of Torture Act. In similar fashion, they assume that FISA controls presidential authority to conduct electronic surveillance for national security purposes. Yet again, they believe that the law governing the treatment of civilians and enemy combatants in wartime should be crystal clear to any reasonable observer. And in all three cases, Bush critics also tend to assume that anyone who does not share their understanding is necessarily a lout, an ignoramus, or an outlaw. In truth, however, the law governing these circumstances is anything but settled, as Goldsmith well understands. He also understands that, when the law is unclear, a president will seek to shape the contours of its meaning. While he does not appear to question the president's constitutional authority in principle in most of these instances, Goldsmith thinks it would be politically prudent for the president to obtain supplemental statutory support for what he wants to do. That may be good political advice, but it suffers from at least one vulnerability that Goldsmith does not address: what is a president to do if Congress refuses to supplement his powers by statute? That precise problem is before us as this is being written. Congress has refused to extend the authority it previously granted to protect certain features of the president's electronic intercept program, despite the president's forceful declaration that the continuation of the program is essential to national security. Perhaps Congress will eventually comply with the president's request. But suppose it doesn't? What would Goldsmith then venture by way of an opinion about the nature and scope of the president's constitutional authority during war?
When the Footnotes Stop
Professor Goldsmith's admonitions about the risks of asserting unilateral presidential powers also have the benefit of hindsight. Berkeley law professor John Yoo, who worked in OLC prior to Goldsmith's arrival, and who apparently authored a number of legal opinions that Goldsmith felt it necessary to withdraw, did not have the luxury of that advantage. Yoo, whose industrious scholarship on presidential power has shed new and interesting light on what the framers meant when they created Article II, is just as smart, and just as devoted to the Constitution, as the smart and equally dedicated lawyers who take issue with his views.
Good lawyers disagree all the time about what the law requires or permits a president to do, as they have disagreed ever since Hamilton and Madison set pen to paper over two centuries ago. Library shelves groan with learned disquisitions reaching different conclusions about the scope of presidential powers once war has been authorized. Indeed, the Office of Legal Counsel was created in part to bring order out of chaos and to provide the president with an adequate constitutional defense of his powers against countervailing claims that they were improperly invoked or exercised. Presidents and their legal advisors in the White House and the Justice Department take such matters very seriously, but even within their ranks disputes are common. These differences of opinion are in every respect sharpened by crises, especially war, which place a premium on quick, decisive action. Wartime urgencies understandably clash with the lawyer's natural inclination to see multiple facets in every argument, or to add qualifying reservations that have a happy home in law review articles but may seem oddly out of place during an emergency.
It is good for presidents to be chastened by legal cautions; it is also good for lawyers to understand that, at some point, the footnotes have to stop. Presidential decision-making in wartime is not an academic exercise, and it is understandably impatient with annotations on fine points of law. Imagine yourself a lawyer in the Justice Department in 2002, charged with determining the reach of the commander-in-chief's wartime authority. The CIA has in its custody various people who appear to be al-Qaeda operatives and who are believed to possess important information, not only about the enemy's battlefield strategy and tactics but, as well, about a future attack on the United States. What procedures govern the incarceration and treatment of such prisoners; what methods, precisely, may be employed in the effort to extract information; and would you be so good as to provide the answers in, say, the next 72 hours? You look into the matter and discover that the relevant law on the question is less than perfectly clear, permitting a range of possibilities concerning which reasonable interpreters might disagree. Would you, dear lawyer, be inclined to read those possibilities narrowly or broadly, bearing in mind that the congressional authorizing resolution permits the commander-in-chief to take "all necessary and appropriate" means to prosecute the war?
Something very close to that scenario is what confronted OLC in the first year or so following the destruction of the Twin Towers. The United States was taken by surprise by the most devastating attack since Pearl Harbor; our intelligence services were in many respects operating in the blind about the organization and operations of al-Qaeda and its allies, and knew not whether or how another attack on the homeland might occur. Under the circumstances, it is understandable that Justice Department lawyers might have been latitudinarian in their interpretation of applicable law. When viewed a year or two afterwards, their conclusions might be questioned, but judgments taken under the duress of circumstance can always be questioned in the cooler light of another day.
Jack Goldsmith, a few months into his new job at OLC, had occasion to review the judgment of his predecessors on the question of torture, and withdrew the opinions that had previously provided legal justification for the interrogators' actions. His predecessor's conclusions, he argues, stretched the legal understanding of presidential war powers and, as a practical matter, were needlessly overbroad in that the actual methods being employed did not require the breadth authorized by the opinions. Goldsmith provides a plausible rationale for withdrawing the opinions, but considering the totality of the circumstances in which the original memos were written, we should not be so quick to condemn those who argued for a broad understanding of what the law permitted. Tellingly, Goldsmith did not replace the flawed opinions with a new legal reckoning of his own; and even now he does not say what a properly defined and legally defensible concept of "enhanced interrogation techniques" would look like.
An analogous argument could be advanced regarding the president's authority to use military tribunals or to conduct electronic surveillance. On all these matters, Congress, not surprisingly, takes the view that a president who fails to comply with its statutes or with arguably applicable standards of international law is necessarily acting contrary to law; but it is arguable, to say no more, whether these authorities trump presidential powers vested by Article II of the Constitution. Goldsmith's case for seeking supplementary legislative authority on these subjects is certainly a respectable and, for some, convincing position, but it is hardly beyond debate.
Reaching comity with Congress on contentious questions is never easy, and almost impossibly difficult when the opposition party has defined itself so conspicuously by its resistance to presidential authority. Perhaps, in a burst of patriotic enthusiasm, congressional Democrats would have rallied round the president—in which case, fine. But then suppose they hadn't? Goldsmith's adversaries within the administration argued that by acknowledging the legal necessity for legislative support and having lost in the effort to obtain it, the president's legal and political position would be correspondingly weaker. Goldsmith was clearly uncomfortable with that position while he served in government, and now argues that presidential powers are damaged when presidents try to go it alone.
After all is said and done, where does this leave us? The answer is, pretty much where Hamilton and Madison left matters 215 years ago. If answers to the kinds of legal questions raised by Professor Goldsmith were as obvious as President Bush's critics say, we wouldn't need an OLC at all; and executive branch lawyers, within and without OLC, wouldn't throw legal spears at one another. For that matter, lower court decisions would never be appealed; and of course we'd never see a concurring or dissenting opinion from a justice of the Supreme Court. Defining the scope of presidential power in foreign and military affairs, as the Supreme Court has repeatedly demonstrated, has never been an easy task; but the difficulty is compounded in every respect by the evisceration of the understanding that informed the separation of powers.
Drawing on Woodrow Wilson, the conceit of modern theoreticians is that neutral, non-partisan expertise ought to govern the exercise of political judgment. That conceit lies at the heart of the new legal regime sketched by Professor Goldsmith, and has been embodied in various domestic and foreign institutions created by Acts of Congress and treaties. It explains why the Department of Defense alone deems it necessary to employ over 10,000 lawyers, and why many lawyers in the federal government, from Congress to executive departments and agencies, feel entitled to second-guess the judgments of the Attorney General.
Goldsmith is alarmed that this new regime threatens to emasculate the exercise of presidential discretion essential to the nation's ability to wage war. His solution, however, may only serve to compound the problem he wishes to solve. For Congress, especially when it has gone into hard political opposition, tends to remember only half of the argument for the separation of powers—its power to check the executive. That is why it also tends to welcome the kinds of restrictions on executive powers that Goldsmith rightly decries in the new legal regime. If Congress happens to go along with a president, well and good.
But as I say, suppose it is disinclined to do so? To answer that question, one must reflect on the other half of the argument for the separation of powers—freeing the executive from legislative whimsy. No one, before or since, has articulated that argument with greater subtlety, force, or sophistication than Alexander Hamilton in his Federalist and Pacificus essays. His understanding made its way into the design and construction of Article II, which vests the president with independent discretionary authority. Presidential prerogative is never more keenly challenged than in time of war, but, as Hamilton argued, that is precisely when it is most necessary. At this critical juncture in the war against Islamist terrorism, the nation needs to be reminded of that point, and it is unfortunate that Professor Goldsmith chose instead to resurrect the spirit of Madison's Helvidius. As that somewhat ambivalent presidentialist Thomas Jefferson once said, self-preservation is the law that must guide the interpretation of all other laws. Civil society is not a mutual suicide pact, but a foolish devotion to the rule of law narrowly understood could make it so.
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This essay is part of the Taube American Values Series, made possible by the Taube Family Foundation.