Power and Constraint: The Accountable Presidency After 9/11

by Jack Goldsmith

Overview

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.

Product Details

ISBN-13:	9780393081336
Publisher:	Norton, W. W. & Company, Inc.
Publication date:	03/12/2012
Pages:	336
Product dimensions:	6.00(w) x 9.10(h) x 1.30(d)

About the Author

Jack Goldsmith is the Henry L. Shattuck Professor of Law at Harvard University. From October 2003 to June 2004 he was assistant attorney general, Office of Legal Counsel. He lives in Newton, Massachusetts.

Editorial Reviews

In this well-researched, informative book, Harvard Law School professor Goldsmith (The Terror Presidency) argues that while the executive branch has, in the last decade, seen its power to deal with the threat of terrorism grow tremendously, there’s also been an unprecedented increase in the checks and balances outside and inside the government to effectively constrain and legitimize this power. These forces include Congress—primarily the intelligence committees, inspectors general, government and CIA lawyers—and the Supreme Court, as well as journalists and human rights groups. During the Bush administration, these forces evolved to challenge controversial counterterrorism policies, such as military trials and denial of habeas corpus for foreign terror suspects, as well as sending them to other countries for harsh interrogation methods, and to hold the president accountable when they believed these policies excessive, unnecessary, or dangerous. This pushback required the administration to explain itself, in some cases altering or even canceling proposed plans in the face of major resistance. Although Obama campaigned on ending his predecessor’s policies, upon entering office he found the policies had already been approved by the balancing forces and were still effective.A welcome addition to the discussion of presidential power, this book will likely invite fierce debate. Agent: Andrew Wylie, the Wylie Agency. (Mar.)

Publishers Weekly

Ten years into the war on Islamist terrorism, a Harvard Law professor offers an unconventional take on the growth of presidential power. From the beginning, the Bush administration viewed the 9/11 attacks not merely as a crime, but as an act of war, justifying the full deployment of the president's powers as head of the U.S. military. From this increasingly controversial premise flowed a series of aggressive and much-criticized counterterrorism measures: the military detention of terror suspects and the device of military commissions to prosecute them, the unchecked discretion to choose among a variety of forums for trying terrorists, the construction of the so-called "black site" prisons around the world, the targeting and killing of enemy suspects, the liberal use of rendition, the increased surveillance at home and abroad and the enhanced interrogation techniques to elicit intelligence. How is it that three years into the succeeding administration virtually all talk about "shredding the Constitution" has vanished, that these bitterly decried practices have either been only marginally curtailed or even expanded? Goldsmith (The Terror Presidency: Law and Judgment Inside the Bush Administration, 2007, etc.), a former Bush Justice and Defense Department attorney, rejects the cynical explanation that it's all politics, a case merely of the vocal left giving a pass to the Obama administration. Rather, he insists that our system of checks and balances is working just fine, if not precisely in the way the framers imagined, to curb the predictable wartime excesses of the executive branch. Yes, to some extent since 9/11, the congress, courts and establishment press have caught up, reining in the president, but Goldsmith points to something unprecedented in our history: the emergence of what he terms the "presidential synopticon," the many watchers of the executive branch--lawyers, inspectors general, human-rights activists--aided by new information technologies and the Internet and empowered by law to limit unilateralism, require accountability, force reform and help generate a consensus about legitimate practices. A provocative look at constraints on the modern presidency, not quite as imperial as we may have feared.

Kirkus Reviews