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Power and Constraint: The Accountable Presidency After 9/11
The surprising truth behind Barack Obama's decision to continue many of his predecessor's counterterrorism policies. Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed―endless detentions, military commissions, state secrets, broad surveillance, and more―are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints―enforced by congressional committees, government lawyers, courts, and the media―that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable. These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.
336 pages, Hardcover
First published March 12, 2012
11 people are currently reading
237 people want to read
About the author
Jack L. Goldsmith
31 books32 followersJack Landman Goldsmith III (born September 26, 1962) is a Harvard Law School professor who has written extensively in the field of international law, civil procedure, cyber law, and national security law. He has been "widely considered one of the brightest stars in the conservative legal firmament."
Goldsmith was born in 1962 in Memphis, Tennessee. His stepfather, Charles "Chuckie" O'Brien, is widely believed to have played a role in the disappearance of Jimmy Hoffa.[6] Goldsmith graduated from Pine Crest School in 1980.
He was a law professor at the University of Chicago when in 2002, he joined the Bush administration as legal adviser to the General Counsel of the Department of Defense. In October 2003 he was appointed as an United States Assistant Attorney General, leading the Office of Legal Counsel in the Department of Justice under Attorney General John Ashcroft and Deputy Attorney General James Comey. He resigned in July 2004. He wrote a book about his experiences there called The Terror Presidency (2007).
Goldsmith graduated from Washington & Lee University with a Bachelor of Arts summa cum laude in 1984. He earned a second B.A. with first class honours, from Oxford University, in 1986, a J.D. from Yale Law School, in 1989, an M.A. from Oxford (which is not a separate degree, but an upgrading of the BA), in 1991, and a diploma from the Hague Academy of International Law in 1992. He clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1989 to 1990, and for Justice Anthony Kennedy of the Supreme Court of the United States from 1990 to 1991.
He was a professor at the University of Virginia Law School before going to the University of Chicago Law School. He was working there in 2002 when he first joined the administration of President George W. Bush as a political appointee.
In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions which were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.
Goldsmith was born in 1962 in Memphis, Tennessee. His stepfather, Charles "Chuckie" O'Brien, is widely believed to have played a role in the disappearance of Jimmy Hoffa.[6] Goldsmith graduated from Pine Crest School in 1980.
He was a law professor at the University of Chicago when in 2002, he joined the Bush administration as legal adviser to the General Counsel of the Department of Defense. In October 2003 he was appointed as an United States Assistant Attorney General, leading the Office of Legal Counsel in the Department of Justice under Attorney General John Ashcroft and Deputy Attorney General James Comey. He resigned in July 2004. He wrote a book about his experiences there called The Terror Presidency (2007).
Goldsmith graduated from Washington & Lee University with a Bachelor of Arts summa cum laude in 1984. He earned a second B.A. with first class honours, from Oxford University, in 1986, a J.D. from Yale Law School, in 1989, an M.A. from Oxford (which is not a separate degree, but an upgrading of the BA), in 1991, and a diploma from the Hague Academy of International Law in 1992. He clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1989 to 1990, and for Justice Anthony Kennedy of the Supreme Court of the United States from 1990 to 1991.
He was a professor at the University of Virginia Law School before going to the University of Chicago Law School. He was working there in 2002 when he first joined the administration of President George W. Bush as a political appointee.
In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions which were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.
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Displaying 1 - 10 of 10 reviews
May 2, 2012
I appreciate books that argue intelligently against "common knowledge." Power and Constraint is one of those. I've heard from multiple sources that the executive branch, and particularly the presidency, has been wielding enormous, unchecked power since 9/11, and rarely heard any statements, much less arguments, to the contrary until Mr. Goldsmith stepped up to write this book.
His analysis of why Obama's policies, in spite of his rhetoric before the election, have ended up fairly close to Bush's policies is fascinating. He also addresses the power of the media, the judicial and legislative branches, and public sentiment in pushing back against the presidential over-reach in response to terrorist attacks. Mr. Goldsmith describes this uneasy balance aptly as "a harmonious system of mutual frustration undergirding a surprising national consensus--a consensus always fruitfully under pressure from various quarters--about the proper scope of the President's counterterrorism authorities."
Towards the end of the book, he states that "we are prisoners of informational uncertainty and psychological biases, and government is an imperfect science." Isn't that the truth!?!?
For more book reviews, come visit my blog, Build Enough Bookshelves.
His analysis of why Obama's policies, in spite of his rhetoric before the election, have ended up fairly close to Bush's policies is fascinating. He also addresses the power of the media, the judicial and legislative branches, and public sentiment in pushing back against the presidential over-reach in response to terrorist attacks. Mr. Goldsmith describes this uneasy balance aptly as "a harmonious system of mutual frustration undergirding a surprising national consensus--a consensus always fruitfully under pressure from various quarters--about the proper scope of the President's counterterrorism authorities."
Towards the end of the book, he states that "we are prisoners of informational uncertainty and psychological biases, and government is an imperfect science." Isn't that the truth!?!?
For more book reviews, come visit my blog, Build Enough Bookshelves.
April 18, 2012
The first fifty pages encapsulates the theory: President Obama's administration kept many of the Bush-era policies because those policies had already been vetted by an aggressive media, a capable legal team, active courts and an engaged Congress. To that point, my review was going to cover the old chestnut of "remember the author," who in this case happens to be ex-legal counsel for the Bush administration. So, self-interest should make suspect any grandiose theories the author makes about how well-vetted actions taken were.
But you don't really need question any deep, revealing or interesting theories, because the rest of the book is mostly tedium. Too much detail, which, in a book conveying a grand narrative ("Too Big to Fail", "Game Change") adds flavor; here just bogs everything down. This is an insider's account, and it reads like a checklist or minutes from a boardroom meeting.
For every interesting paragraph or compelling sentence, (and they do exist) there seems to be a page of dross. A focus on some key players and their snappy dialogue, or a truly deep look at the origins of the policy without all the "name and rank and here's what they did" exposition. This book gives up depth for breadth, confuses detail for engagement, and focuses on accessibility at the cost of any sense of revelation.
But you don't really need question any deep, revealing or interesting theories, because the rest of the book is mostly tedium. Too much detail, which, in a book conveying a grand narrative ("Too Big to Fail", "Game Change") adds flavor; here just bogs everything down. This is an insider's account, and it reads like a checklist or minutes from a boardroom meeting.
For every interesting paragraph or compelling sentence, (and they do exist) there seems to be a page of dross. A focus on some key players and their snappy dialogue, or a truly deep look at the origins of the policy without all the "name and rank and here's what they did" exposition. This book gives up depth for breadth, confuses detail for engagement, and focuses on accessibility at the cost of any sense of revelation.
October 31, 2019
I really like Goldsmith's pieces in The Atlantic and elsewhere on President Trump's pressure on extant political institutions. Maybe this just felt dated to me, but I couldn't really get into it. I did find it very useful, however. The basic premise seems wildly implausible to anyone you tell it to, but imminently reasonable once you get through the first few chapters.
September 11, 2018
***+/5
May 8, 2012
What has really changed: the addition of lawyers to decisions on the battlefield, or the types of conflict that we engage in? As I read Jack Goldsmith’s Power and Constraint, that question kept running through my mind. So much has changed in the world since World War II, including most of the body of human rights law, humanitarian law and U.S. Law that govern conflict. However, one of the main lessons of 9/11 should be that in a real crisis, we, and any country, will likely be willing to disregard or degrade these law in order to achieve our strategic goals.
I thoroughly enjoyed the second and third parts of Goldsmith’s Power and Constraint and before I critique it, I should note that it is worth reading. In “Part II: Distributed Checks and Balances” Goldsmith discusses the hidden checks within government that prevent it from overstepping legal and moral bounds during times of crisis. Fear from persecution in the media, from internal reviews by Inspector Generals and the rise of lawyers in policy and planning of diplomacy and war have created an atmosphere within the government that stepping outside the hazy bounds of lawful conduct.
Before completely switching course in Part III, Goldsmith deconstructs the role of media as a modern check on executive power. Leaks of classified national security information limit the power of the President and the Congress via public opinion. Throughout the GWOT, leaks of highly classified covert actions, including the rendition and enhanced interrogation program, the NSA’s Terrorism Surveillance Program, and Treasury’s Terrorist Finance Tracking Program all created an atmosphere of vulnerability in the West Wing. However, in Part III, Goldsmith rebukes those government officials, news outlets, and non-profits that allow the scrutiny of government to take place.
Further, while leaks to the press created worry for elected officials, career civil servants worked in fear of the almighty Inspector General. This interior check impressed me, especially the story of the CIA IG investigating the black sites while they were still beyond public knowledge. The IGs create a systematic check within agencies to keep employees within the law and legal findings of the agency they work for. The issue that they present it is independence from the agency they serve. I hold internal processes of quality control in high regard; I think a majority of employees and employers want to avoid halting their careers by participating in programs that go beyond the law. However, sometimes people try to cover up mistakes.
The rise of the “Warrior-Lawyer” struck me as comical. More often than not in the years after 9/11, lawyers seemed not to be asking the question of “What is moral and legal?” Instead they probed the literature to find methods to legitimize dubious actions by an administration that became obsessed with protecting the homeland and any cost. The body of law beyond customary law that governs war is a recent invention and it has never encountered a real and total war. Someone last week posed a hypothetical situation in which the United States and China began fighting. In a situation like this, where Chinese missiles hit and killed American cities and Americans began to understand the real meaning of collateral damage, the rule of law would fly out the window.
The United States has not seen a true multi-national crisis since the end of World War II. Further, it would be careless to argue that international institutions and treaties have created a more peaceful world. History is full of periods of relative peace, and to think that this period is somehow different is dangerous. The disintegration of the League of Nations before World War II and the failure of the naval conferences following World War I created incentive to lie and cheat. The only change in the past seventy years has been the types of wars that the U.S. has fought.
When deploying overwhelming force against adversaries, countries face complicated questions of international legitimacy. The use of law and lawyers has grown because the powers that won the World War II see benefit in using the law to legitimize their use of force. The very nature of law is to provide a baseline for conduct within and between societies, and its application to asymmetrical war should not be surprising.
I thoroughly enjoyed the second and third parts of Goldsmith’s Power and Constraint and before I critique it, I should note that it is worth reading. In “Part II: Distributed Checks and Balances” Goldsmith discusses the hidden checks within government that prevent it from overstepping legal and moral bounds during times of crisis. Fear from persecution in the media, from internal reviews by Inspector Generals and the rise of lawyers in policy and planning of diplomacy and war have created an atmosphere within the government that stepping outside the hazy bounds of lawful conduct.
Before completely switching course in Part III, Goldsmith deconstructs the role of media as a modern check on executive power. Leaks of classified national security information limit the power of the President and the Congress via public opinion. Throughout the GWOT, leaks of highly classified covert actions, including the rendition and enhanced interrogation program, the NSA’s Terrorism Surveillance Program, and Treasury’s Terrorist Finance Tracking Program all created an atmosphere of vulnerability in the West Wing. However, in Part III, Goldsmith rebukes those government officials, news outlets, and non-profits that allow the scrutiny of government to take place.
Further, while leaks to the press created worry for elected officials, career civil servants worked in fear of the almighty Inspector General. This interior check impressed me, especially the story of the CIA IG investigating the black sites while they were still beyond public knowledge. The IGs create a systematic check within agencies to keep employees within the law and legal findings of the agency they work for. The issue that they present it is independence from the agency they serve. I hold internal processes of quality control in high regard; I think a majority of employees and employers want to avoid halting their careers by participating in programs that go beyond the law. However, sometimes people try to cover up mistakes.
The rise of the “Warrior-Lawyer” struck me as comical. More often than not in the years after 9/11, lawyers seemed not to be asking the question of “What is moral and legal?” Instead they probed the literature to find methods to legitimize dubious actions by an administration that became obsessed with protecting the homeland and any cost. The body of law beyond customary law that governs war is a recent invention and it has never encountered a real and total war. Someone last week posed a hypothetical situation in which the United States and China began fighting. In a situation like this, where Chinese missiles hit and killed American cities and Americans began to understand the real meaning of collateral damage, the rule of law would fly out the window.
The United States has not seen a true multi-national crisis since the end of World War II. Further, it would be careless to argue that international institutions and treaties have created a more peaceful world. History is full of periods of relative peace, and to think that this period is somehow different is dangerous. The disintegration of the League of Nations before World War II and the failure of the naval conferences following World War I created incentive to lie and cheat. The only change in the past seventy years has been the types of wars that the U.S. has fought.
When deploying overwhelming force against adversaries, countries face complicated questions of international legitimacy. The use of law and lawyers has grown because the powers that won the World War II see benefit in using the law to legitimize their use of force. The very nature of law is to provide a baseline for conduct within and between societies, and its application to asymmetrical war should not be surprising.
June 1, 2015
Dry at times, but still a nice account of how intelligence, power, and law are intertwined in politics, public perception, and war, and how all of these have evolved-sometimes backwards-over time in America. The book specifically focuses on the era from 2001-2011, but occasionally does provide historical references and context that I personally appreciated.
I did not detect a bias of the information presented and thought that it was a very fair and objective view of just how the accountability of law in war works, and just as important, how it has gotten there. The author points out hypocrisies and tricks of both politicians and journalists. Illustrates how the courts will change their stance on what is an acceptable code of conduct for its servants, just as quickly as the public will change their view on the appropriate amount of power their government should wield. At the end he surmises that all of these divisions in government are presently working in harmonious frustration. I concur.
So although I liked the book, I would really only recommend this to someone who is going to be specifically interested in this niche topic. His writing style is not bad, but I needed to take breaks after each chapter to make sure I stayed focused. The book as a whole did not read like a textbook, but at times it certainly leaned in that direction. I would say if you're on the fence about this one read Part 1 (not dry and informative), and then continue on if you find his information and style engaging.
I did not detect a bias of the information presented and thought that it was a very fair and objective view of just how the accountability of law in war works, and just as important, how it has gotten there. The author points out hypocrisies and tricks of both politicians and journalists. Illustrates how the courts will change their stance on what is an acceptable code of conduct for its servants, just as quickly as the public will change their view on the appropriate amount of power their government should wield. At the end he surmises that all of these divisions in government are presently working in harmonious frustration. I concur.
So although I liked the book, I would really only recommend this to someone who is going to be specifically interested in this niche topic. His writing style is not bad, but I needed to take breaks after each chapter to make sure I stayed focused. The book as a whole did not read like a textbook, but at times it certainly leaned in that direction. I would say if you're on the fence about this one read Part 1 (not dry and informative), and then continue on if you find his information and style engaging.
September 21, 2012
Argues that (despite the common sentiment that executive powers have spiraled out of control without any kind of limits) checks and balances are actually alive and well, albeit differently executed in a way adapted to technological and social changes post 9/11. The first 100 pages makes his point very well, the rest of the book seemed to just be an in-depth analysis of the systems themselves that perform the checks and balances. I stopped around page 120 after I got the information I was particularly interested in.
December 13, 2014
This is a tough read but full of information. I am throughly depressed. Maybe it isn't possible to hold to your values once you assume the mantle of responsibility and power of the presidency.
January 19, 2015
It was all at one disappointing, reassuring, and depressing. Basically, presidents all look alike because the position is basically a figurehead one. Also, congress is pretty useless.
April 16, 2016
Great. Book. Great. Work. Thanks. Mr. President.
Displaying 1 - 10 of 10 reviews