Power and Constraint: The Accountable Presidency after 9/11. By Jack L.Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp.

Abstract

Power and Constraint: The Accountable Presidency after 9/11. By Jack L. Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp. Books on presidency often breathlessly bemoan cult of presidential power, lament that separation of powers at an end, and claim that executive power unbounded. In highly nuanced and thoughtful treatment of post-George W. Bush presidency, Jack Goldsmith depicts remarkable moderation today's national executive. He tells story of new developments, which belie apocalyptic claims that we are living an era of unrestrained executive The result not nightmare (see Peter M. Shane, Madison's Nightmare: How Executive Power Threatens American Democracy [Chicago: University of Chicago Press, 2009]), but, rather, that the father of Constitution would smile (pp. 252, 243). In Power and Constraint, as his earlier The Terror Presidency: Law and Judgment Inside Bush Administration (New York: W. W. Norton and Company, 2009), Goldsmith rejects aggressive and often unilateral counterterrorism programs of early Bush administration, and praises pushback that moderated those policies and gave them firmer legal footing. After presidential excesses following 9/11, various institutions pushed back harder against Commander Chief than any other war American history, which, on balance, was very healthy for presidency and for national security (p. 241). Both of Goldsmith's works owe much to Arthur Schlesinger, Jr.'s The Imperial Presidency (Boston: Houghton Mifflin, 1973), which, at times, surprisingly friendly to executive power. And with theme that constraints ultimately strengthen presidency and render it more effective (p. xv), he channels insight of Harvey C. Mansfield, Jr.'s Taming Prince: The Ambivalence of Modern Executive Power (New York: The Free Press, 1989) that executives draw strength by being subordinate to law. Goldsmith professor at Harvard Law School, and his legal roles during Bush administration were with Department of Defense (2002-03) and Office of Legal Counsel (2003-04), but account here resembles political history as much as formal legal analysis. Although everyone from former Vice President Dick Cheney to ACLU expected that new Obama administration would dramatically change Bush counterterrorism programs, most of them had been tempered to such an extent that Obama administration kept virtually all of them. would distinguish between some of steps that were taken immediately after 9/11 and where we were by time I took office, President Obama said March 2009 (p. 39). The Obama administration today regards counterterrorism as an armed conflict rather than criminal matter, engages indefinite military detention, has initiated military commission trials for war crimes; shops for best forum which to prosecute terrorists; continues to operate Guantanamo Bay, has not changed executive branch positions on habeas corpus rights for detainees abroad, still delivers up prisoners to other countries for interrogation; has increased secret government surveillance, and has radically expanded global regime of targeted killing. In 2010, American Civil Liberties Union (ACLU) warned that Obama will enshrine permanently within law policies and practices that were widely considered extreme and unlawful during Bush administration. Although current administration made changes to Central Intelligence Agency interrogation and black sites, Goldsmith notes that ACLU prediction is basically what has happened (p. 19). Rejecting views that we are in an age after separation of powers, or that the legally constrained executive now an historical curiosity, Goldsmith documents a remarkable and unnoticed revolution wartime presidential accountability. …