Many people expected a sharp change in America’s approach to counterterrorism when Barack Obama became president. But as Obama approaches the end of his first term, the continuities between the framework he inherited from President Bush and his current policies are more striking than the differences.
It is true that Obama ended the CIA’s secret detention program and overturned a series of legal guidelines on interrogation, but in practice the Bush administration had already moved away from the use of “black sites” and more extreme interrogation techniques such as waterboarding. On Guantanamo Bay, Cuba, the use of military commissions, and targeted killing of terrorist suspects away from any conventional battlefield, Obama has largely maintained and even expanded his predecessor’s approach.
One of Jack Goldsmith’s aims in his new book, “Power and Constraint,” is to explain this apparently surprising outcome. Goldsmith — a conservative legal scholar who headed the Office of Legal Counsel for a time under the Bush administration — argues that Obama has been unable to shift U.S. counterterrorism policy very far because, by the time he took office, it was already pitched at the center of gravity of American political society. According to Goldsmith, it is misleading to portray Bush’s “war on terror” as an illustration of unbridled presidential power. Although the Bush administration set out to expand the scope of executive action in the field of national security, it was ultimately forced back by a framework of checks and balances built into the American political system. The restrictions imposed on Bush and his officials were frustrating, but the policies that emerged enjoyed a degree of legitimacy and collective endorsement that made it hard for the new administration to abandon them.
Goldsmith details the various forces that kicked in to challenge the Bush administration’s counterterrorism program, from the courts and Congress, to a persistent and skeptical press and creative human rights organizations, to lawyers and watchdogs throughout the executive branch. The combined force of these pressures led to many significant changes, including new statutory restrictions on coercive interrogation, access for detainees to American courts, and the application of a crucial part of the Geneva Conventions to the fight against al-Qaeda. Obama, in turn, has faced push-back from Congress when he has tried to move too far outside the public consensus in the other direction, for instance by bringing detainees into the United States.
From its title onward, Goldsmith’s book should be understood as part of a continuing argument with an opposing (and more conservative) political faction within the Bush White House, led by Vice President Dick Cheney and his legal adviser David Addington, that fought against any attempt to secure wider backing for the administration’s policies. In one of the more memorable passages of his earlier book “The Terror Presidency,” Goldsmith described how Addington and Cheney “viewed power as the absence of constraint”; in other words, they valued only their own freedom of action and didn’t care about winning the support of Congress (or anyone else) if that meant limiting the powers they claimed. Goldsmith makes a convincing case here for a contrary view, pointing out that the entrenchment of most of Bush’s core policies in a web of endorsements has helped them survive the change of administrations.
“Power and Constraint” is written with exemplary clarity and gives a notably lucid and authoritative picture of the dynamics of presidential power as they played out in perhaps the most important area of national policy in the past decade. Its narrative comes across as impressively fair-minded; Goldsmith has taken the trouble to interview people from intelligence officers to human rights advocates, and gives every indication of representing their views fairly. His analysis understates the distinction between the president’s approach to the legacy he inherited and the policies he has put in place for the future. (Obama has not succeeded in closing Guantanamo, but neither has he added any new detainees to the population there.) Goldsmith’s claim that congressional Republicans have attacked Obama on issues such as the domestic civil prosecution of terrorists (which Bush also pursued) because they don’t trust him to be serious in fighting terrorism also seems to underestimate the simple political opportunism that may be motivating them.
Most fundamentally, because Goldsmith’s central concern is the extent of presidential power, he doesn’t really consider whether a set of policies that has broad domestic legitimacy might nevertheless be inappropriate or unstable. Throughout the book, he repeatedly says that the restraints imposed on America’s counterterrorism operations are unprecedented in wartime, and even describes the population of Guantanamo as “terrorist soldiers.” There is little recognition here that the fight against al-Qaeda, assuming it merits the description of an armed conflict in the first place, is so different from traditional interstate wars that it might call for different rules on detention and targeting of the enemy. But the Supreme Court left precisely that question open in one of its earliest Guantanamo decisions, and it may gain added force as the United States progressively withdraws from fighting on the ground in Afghanistan over the next two years.
From a different perspective from Goldsmith’s, the course of U.S. policy since Sept. 11 could show that a democratically accountable political system can nevertheless fail to protect the rights of people regarded as a security threat, especially when the legal situation is novel or unclear. The question of how democracies balance security concerns and human rights is at the center of “Democracy’s Blameless Leaders,” by the British academic Neil James Mitchell. Mitchell’s concern is with democratic responses to atrocities in which the state is implicated. He examines a series of violent incidents from 20th-century history, from the Amritsar massacre in India through the fire-bombing of Dresden and the abuses at Abu Ghraib, and uses them to argue that political leaders and military officers in the United States, Britain and Israel have repeatedly been able to escape accountability for their actions.
Mitchell provides an interesting typology of the various techniques that leaders use to deflect blame, and he writes with a certain acerbic flair. But he is more interested in establishing a general rule of non-accountability than in exploring the different political contexts in which his subjects operated and the factors that influenced their actions. Moreover the case studies of political evasion that he chooses form a disparate group. The “Bloody Sunday” shootings in Londonderry and the Sabra and Shatila massacre in Lebanon are Mitchell’s most persuasive illustrations of the failure of democratic accountability. Dresden and the British abuse of prisoners in Iraq are different, and this limits the conclusions that can be drawn from his range of examples.
There is a significant difference between Goldsmith and Mitchell’s views on what political accountability in a democratic system requires. For Mitchell, it is important not only that an accurate record be established, but that “consequences follow for those responsible for wrongful actions or policies.” Goldsmith by contrast is concerned primarily about whether policies are brought into line with the standards laid down by the appropriate institutions. Mitchell views the failure to punish senior figures responsible for abuses in the fight against terrorism as a serious lapse, while Goldsmith believes policymakers have already been subject to a process of exhaustive scrutiny over decisions they took at a time of danger and uncertainty. He argues that there is no need for further investigations or prosecutions — though it is hard to say there has been a full and open accounting until we know how much of the Senate Intelligence Committee’s forthcoming report on the subject will be made public.
Goldsmith is doubtless right that the process of democratic checks and balances has produced an effective practical consensus in the United States about the contours of the fight against international terrorism. But it is also striking that, 10 years after Guantanamo opened, some of the central questions about the use of detention and targeted killing in military campaigns against armed groups remain unsettled, both within the United States and internationally.
As Goldsmith says, Obama’s “reputation for law-abidingness and . . . rhetoric of self-constraint” have given the core U.S. counterterrorism program a degree of credibility it could not have attained under President Bush. The danger is that Obama, in dealing with a legacy he would never have wished for and an aggressive political opposition, may end up setting a dangerously expansive precedent that does not fully accord with his convictions and values.
POWER AND CONSTRAINT
The Accountable Presidency after 9/11
By Jack Goldsmith
Norton. 311 pp. $26.95
DEMOCRACY’S BLAMELESS LEADERS
From Dresden to Abu Ghraib, How Leaders Evade Accountability for Abuse, Atrocity, and Killing
By Neil James Mitchell
NYU Press. 262 pp. $39