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.