Power and Constraint

December 5, 2011
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.

February 1, 2012
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.

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March 1, 2012
Despite campaigning to roll back some of the counterterrorism policies of the Bush administration that have raised concerns about civil liberties, President Obama has maintained those policies and maintained the national emergency status evoked after 9/11. Part of the reason for the status quo is a natural reluctance of presidents to trim back their powers, but it is also due to the balance of power that has been achieved by the courts, Congress, and the press maintaining scrutiny of counterterrorism policies, according to Goldsmith, who worked in the Bush administration in the Departments of Defense and Justice. Goldsmith draws on his experience and interviews with senior officials in the Bush and Obama administrations and journalists, human-rights activists, and academics to examine how checks and balances within and outside of government have counterweighted the enormous powers given the executive branch following 9/11. He emphasizes the fact that Republican and Democratic administrations with very different views on executive power have both chosen to maintain counterterrorism powers and have been kept accountable.(Reprinted with permission of Booklist, copyright 2012, American Library Association.)