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Monday, September 24, 2007

Individual Rights and/in "The Terror Presidency"

A little behind the crowd (as usual), I finally got to Jack Goldsmith's new book, The Terror Presidency, this weekend. As many of its reviewers suggest, it's quite good, and paints a picture of a far-more-searching struggle among Administration lawyers over the limits of the Bush Administration's anti-terrorism policies than might otherwise have been discernible from the outside. (Other reviewers, most notably Michael Stokes Paulsen, have raised concerns about the ethical propriety of such a book. I'll leave that issue to the side, at least for now.)

In addition, Prof. Goldsmith's book does a thorough job (too thorough, almost) of capturing the tension that most (or at least many) government lawyers "on the inside" felt and continue to feel -- between the importance of legal limitations and the need to protect the country from future terrorist attacks. Although Goldsmith argues that the response to 9/11 has been too legalistic, I think it is a fair summary of the book to suggest that the limits of extant law factored far more prominently into internal deliberations than many on the outside have previously suggested.

Of course, the general tenor of the book is that it's appropriate to push the envelope during crisis times. But the book makes clear that what happened inside OLC prior to Goldsmith's tenure was much, much more than just envelope-pushing. And indeed, one is left with the distinct sense that we'd all be better off if Goldsmith had been in charge of OLC from the beginning of the post-9/11 response, as opposed to coming in in the middle.

All of that being said, there is one point that is almost entirely neglected by the book in an otherwise searching discussion of the myriad issues faced by government lawyers after 9/11: the impact of over-aggressive policies on individual rights.

Throughout the book, Goldsmith, in the mold (and borrowing not so subtly from the title) of Arthur Schlesinger's The Imperial Presidency, repeatedly emphasizes the importance of checks and balances to protect the government from itself. He also bemoans, on several occasions, the fact that the Administration did not go to Congress sooner to seek out the authority it claimed it needed. Borrowing both a quote and an idea from John Hart Ely's War and Responsibility, Goldsmith suggests that the real legal issues that have arisen after 9/11 all are fundamentally about the relationship between the political branches.

With exactly one exception, the book nowhere views the over-aggressive policies as implicating the individual rights of those detained or otherwise impacted by the government's policies. Thus, nowhere does the book mention the likes of Khaled El-Masri, Maher Arar, Brandon Mayfield, or the dozens (if not hundreds) of other individuals who were simply in the wrong place at the wrong time, who were subjected to the most harrowing and disturbing treatment, and who, still today, are struggling to fully and properly redress their grievances.

Does Goldsmith believe these cases are unimportant? That mis-steps are bound to be made and this is just the collateral damage? That none of the mistakes leading to these cases can be attributed to the government's policies, but rather just to the over-eager actions of a few bad apples?

The exception, curiously enough, is Yaser Hamdi. Goldsmith describes in detail his visit to see Hamdi on what was Goldsmith's 40th birthday (one other thing I learned from the book -- he and I share a birthday). In his words:

It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. "This is what habeas corpus is for," I thought to myself, somewhat embarrassed at the squishy sentiment. . . . I had no doubt that . . . the administration had legal authority to detain Hamdi . . . . My real thought was whether it was prudent to do so in this way, in these circumstances.

I find this passage remarkable only because it is the one moment in the book where Goldsmith appears to consider the impact of the Administration's policies on individuals, and he is "somewhat embarrassed at the squishy sentiment."

I wonder if, in general, this passage summarizes what is entirely the problem most civil libertarians have with the vast majority of the Administration's responses to 9/11: That the impact on individual rights has simply been ignored. Isn't the reason for checks and balances and the separation of powers to prevent the political branches from unduly infringing upon individual liberties?

Perhaps I am overreacting; perhaps this is just my liberalism run amok. To me, though, the fact that no one was standing up for the "little guy," and that the counterarguments to things like the infamous "torture memo" were never based on the impact overbroad policies might have on the rights of innocents are important testaments to how we got here, and, more importantly, how El-Masri and Arar, et al., got there. At the end, the biggest conclusion I took away from the book is that the central difference between the Administration and its critics isn't over the legality of the various Administration policies, but over why those legal limits exist, in the first place.

Posted by Steve Vladeck on September 24, 2007 at 10:45 AM in Books, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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With regard to Goldsmith’s ethical defenses, there's an interesting disclosure in Jeffrey Rosen’s New York Times review of the book:

“In Goldsmith’s estimation, the unnecessary unilateralism of the Bush administration reached its apex in the controversy over wiretapping and secret surveillance. Goldsmith says he did not originally intend to mention the surveillance controversy in his book. But he says he was infuriated, soon before finishing his manuscript, to be handed a subpoena in Cambridge by F.B.I. agents ordering him to testify in a criminal investigation into the leaks that resulted in stories by James Risen and Eric Lichtblau in The New York Times about the National Security Agency’s warrentless wiretapping. After having a public conversation with the F.B.I. in the middle of Harvard Square about aspects of the terrorist-surveillance program, Goldsmith concluded he could discuss the same topics in his book.“ (“Conscience of a Conservative,” Jeffrey Rosen, New York Times Magazine, September 9, 2007)

That might be a potential support for the “defense” exception – Goldsmith might claim he is/was a target in a federal criminal investigation.

But, there's also the “he was infuriated” statement. Did Goldsmith's fury form the real emotional basis of Goldsmith’s decision to make so many disclosures? I don’t know the man. Perhaps Michael Paulsen can ask him.

Posted by: Anon The Second | Jan 31, 2008 1:46:04 PM

This is a great point, and one that should have been made everywhere and early on. I agree that the reason the question of individual rights is missing is jurisprudential - his focus is on separation of powers rather than substantive rights and limitations created by those rights. Once there is a structural allocation of power, the question becomes purely discretionary (of prudence rather than rights). As you quote: "I had no doubt that . . . the administration had legal authority to detain Hamdi . . . . My real thought was whether it was prudent to do so in this way, in these circumstances." I think this is a way of avoiding the real issues here: torture, renditions, etc. because he supports that conduct (as he said in the NYTimes Magazine article). The violation of human rights is not acceptable, even if separation of powers is meticulously adhered to.

Posted by: anon | Sep 24, 2007 4:22:45 PM

I don't know whether OLC was ever asked, during Jack's tenure, about the definition of who could be detained under the AUMF. (The book doesn't mention the issue, IIRC.) But I think it's notable that Jack's HLR article on the AUMF with Curt Bradley takes a markedly narrower (and more defensible) view than the Administration about who falls within the definition (which is one reason the B&G article is prominently cited in Boumediene's brief).

Posted by: Marty Lederman | Sep 24, 2007 2:26:59 PM

The question, though, is whether the book is therefore an accurate reflection of internal deliberations -- of whether the overly broad definition (and the assumption that intelligence-gathering is a proper basis for detention) was itself never criticized because of the direct effect of its overbreadth.

I guess I'm asking a question that no one on the outside can really answer -- whether at any point in time, anyone on the inside was raising as a counterargument the _over_-inclusiveness of the detention and/or surveillance regimes... And if not, why not? Are the two sides just talking past each other?

Posted by: Steve Vladeck | Sep 24, 2007 2:04:21 PM

Well, if the impact on *innocent* people is your focus, I think the short answer is that Jack never discusses the policies that have caused us to detain innocent people -- namely, the overly broad definition of "enemy combatant," which is itself based on the assumption that *intelligence* is a proper basis for detention and that therefore we were compelled to cast a very wide (perhaps indiscriminate) net so as to be able to interrogate anyone who *might possibly* have actionable intelligence about Al Qaeda.

As you know, I think that's a huge problem -- but it's simply not one discussed in Jack's book.

Posted by: Marty Lederman | Sep 24, 2007 1:54:06 PM

Marty -- Of course, I don't disagree. What I'm struggling with, though, is the question of why over-breadth, a concern Goldsmith invokes repeatedly, was never cast in terms of impact on innocents. Even if he and I might disagree on who is and isn't "innocent," there is still the question of the appropriateness of narrow tailoring. What struck me about the book is that the _only_ stated justification for narrower policies was to preserve the separation of powers, notwithstanding the reason why that separation is important and necessary in the first place...

Posted by: Steve Vladeck | Sep 24, 2007 1:29:01 PM

Steve: Far from Administration officials ignoring the impact on individual rights, that impact was the whole premise of their detention and interrogation policy -- to break the detainees by getting them to understand that they were no longer creatures with rights, or any hope of due process or basic human dignity (and thus entirely dependent on their captors/interrogators). See http://balkin.blogspot.com/2007/08/rosetta-stone-of-detentioninterrogation.html

Posted by: Marty Lederman | Sep 24, 2007 11:04:21 AM

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