SO I’M READING JACK GOLDSMITH’S NEW BOOK, The Terror Presidency: Law and Judgment Inside the Bush Administration,
It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe. . . . Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001 this war has been lawyered to death.
As I’ve said before, this war has been overlawyered, which is not to say it has been well-lawyered. Goldsmith notes that the Defense Department alone has over 10,000 lawyers, not including reservists. More:
In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn’t. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers’ fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one’s career, even if you emerge “innocent.”
Why, then, do they even come close to the legal line? Why risk reputation, fortune, and perhaps liberty? Why not play it safe? Many counterterrorism officials did play it safe before 9/11, when the criminalization of war and intelligence contributed to the paralyzing risk aversion that pervaded the White House and the intelligence community. The 9/11 attacks, however, made playing it safe no longer feasible. . . .
Two factors exacerbated this anxiety in the spring of 2004 when Philbin and I brought our bad news to the White House. The government was beginning to receive terrorist threat information that was more frightening than at any time since 9/11, according to then-CIA director George Tenet. And the 9/11 Commission was preparing to grill Condoleezza Rice, John Ashcroft, Robert Mueller, and George Tenet on national television about all the things that hindsight showed they might have done, but didn’t, to prevent the September 11 attacks. . . .
After 9/11, the Bush administration feared for the nation’s safety as much as Franklin Roosevelt had. But Roosevelt’s political conception of legal constraints had largely vanished, and by 2001 had been replaced by a fiercely legalistic conception of unprecedented wartime constraints on the presidency. When President Bush and his senior advisors began to order the aggressive actions that they believed the post-9/11 situation demanded — covert military action, surveillance, detention, interrogation, military trials, and the like — they encountered these constraints for the first time in a major conflict.
Indeed. In his book about the 9/11 aftermath, After, Steven Brill reports that John Ashcroft’s instructions to his subordinates — repeating President Bush’s instructions to Ashcroft — were not to ever let something like that happen again. It hasn’t, but that command certainly affected attitudes — and, now because nothing like that has happened again, we find ourself back in more of a 1990s mindset.
UPDATE: Reader Holmes Gwin emails:
Welcome to the post-SarBox, Elliott Spitzer world. We in business face this on a regular basis. I can’t decide whether I’m glad public servants experience the same headaches we do or concerned because an intelligence/military failure costs lives, while a business failure costs only money (though when Spitzer was around, it also sometimes cost freedom).
In business, not only has bad judgment become a crime, so has a good decision made on the basis of incomplete information, which later turns out to have been the wrong call. This is not good for America, where innovation and risk are what we do better than Europe, China, or India.
Law and lawyers are swell in their place. The extent of that place, however, is not unlimited.
ANOTHER UPDATE: Reader Brian Gates emails:
Do the Volokh guys have the same book? See the discussion here, for instance. They (and the Washington Post, I suppose) make it sound like Goldsmith views the administration as a cabal of anarchofascists, actively destroying the laws that should apply to them even when it would be easier to get Congress and the courts to just change the law to suit their needs better. Your post on the book has a somewhat different feel. Are you all reading the same book?
I may be wrong, but I think the folks at Volokh are reading what newspapers have chosen to excerpt, which I think gives the book more of an anti-Bush spin than it really possesses (though I’m only about halfway through so far). Goldsmith is quite critical in places, but he also makes clear (as the passages above do) that he thinks people in the Administration meant well, and were responding to near-intolerable pressures, even if he often thinks they responded in a sub-optimal fashion.
MORE: Question answered. And lest I myself be accused of selective quotation, I’ll note that Goldsmith emailed me to say that these excerpts captured the central point of the book, so I think they’re representative. But I’ll have more on the book later.
STILL MORE: Related thoughts from TigerHawk.