Unchecked and Unbalanced: President Obama has continued many of his predecessor’s most controversial counter-terrorism policies. Here’s Why.
October 8, 2012
At the outset of his new book, Power and Constraint, Harvard law professor Jack Goldsmith makes the case that President Obama has continued many of his predecessor’s most controversial counterterrorism policies. From preventive detention to the state secrets privilege to military commissions, Goldsmith asserts, Obama has adopted practices that he criticized in his presidential campaign.
This claim of continuity rankles Obama supporters who believe that the president’s approach to counterterrorism evinces a respect for the rule of law that his predecessor lacked. But the claim is not a new one. It has been put forward both by conservatives who consider the continuity a validation of President Bush’s approach and by liberals who consider it a betrayal. Indeed, even Obama’s staunchest defenders acknowledge some unexpected similarities between the two administrations in national security matters.
More provocative is Goldsmith’s argument about why this is the case. He contends that, contrary to conventional wisdom, the Bush era was one of unparalleled oversight and accountability. After 9/11 the executive branch initially assumed broad and intrusive powers, which it exercised largely in secret. The media, aided by Freedom of Information Act requests from NGOs, uncovered these secret acts. Congress, the courts, and internal agency watchdogs then pushed back and trimmed the president’s powers. By the time Obama took office, existing policies reflected a rigorous application of the constitutional system of checks and balances. By continuing those policies, Obama did not abandon the reformist commitments he made during his campaign, as some believe. The policies already had been reformed, and whether they ended up in the “right” place is, Goldsmith asserts, beside the point.
Goldsmith is no mere observer of the events he describes. In his brief tenure as the head of the Justice Department’s Office of Legal Counsel (OLC), Goldsmith made the unprecedented decision to withdraw two standing OLC opinions: the “torture memos” authored by John Yoo. The memos, he found, provided a flimsy legal justification for subjecting terrorist suspects to “enhanced interrogation techniques” that included waterboarding, shackling suspects in “stress positions,” confining them in small boxes, subjecting them to extreme temperatures, and preventing them from sleeping. With the exception of waterboarding, however, Goldsmith did not dispute the legality of the practices—only the quality of the memos authorizing them—and so allowed them to continue.
A conservative who occasionally deviates from the party line, Goldsmith approaches his subject with his usual civility and willingness to acknowledge merits on both sides of an argument. Moreover, the material is exhaustively researched. It is difficult to take issue with any of the facts he presents, with one significant caveat: his information about still-secret executive practices necessarily comes from interviews with anonymous officials, whose motives and biases are unknown and whose statements are not verifiable. Nonetheless, taking all of Goldsmith’s facts as true, do they support his contention that our constitutional system of checks and balances led us to a genuine place of compromise and consensus, and is that where we should be? Here, one can—and should—take issue.
Goldsmith first takes on the popular conception that the Bush administration’s notorious secrecy scuttled any meaningful oversight. He acknowledges that the administration did its best to conceal many counterterrorism activities. He nonetheless contends that these efforts foundered on an “ecology of transparency” (a term coined by legal scholar Seth Kreimer) in which leaks are commonplace, a wealth of public information can be used to deduce secret information, and the news media’s investigative forces are magnified by bloggers and other citizen journalists. News outlets accordingly exposed highly secret programs including undisclosed CIA prisons, enhanced interrogation techniques, and warrantless wiretapping by the National Security Agency (NSA).
Goldsmith’s observations are accurate, as far as they go. For instance, it’s true that theNew York Times wrote about the NSA’s warrantless wiretapping in 2005, albeit long after the practice’s inception. The coverage prompted the government to release some details about its Terrorist Surveillance Program, which targeted communications between people in the United States and suspected terrorists abroad. But it failed to pry loose official information about other NSA surveillance activities referred to, but not described, in the unclassified version of a 2009 joint inspectors general report. Despite strong evidence that the government has broadly collected both domestic and international communications, basic information remains unavailable to the public, including how many Americans have been affected and whether the government is merely studying communications traffic patterns or is mining actual content. On this issue of overriding public importance, there are still more questions than answers.
On other issues, journalists’ best efforts have failed to uncover even rudimentary information. Under Section 215 of the Patriot Act, the government may secure an order from a secret court to obtain “any tangible thing” in a terrorism investigation. For years, some members of the congressional intelligence committees have sounded the alarm that the government is relying on a twisted interpretation of Section 215 to conduct a secret intelligence program that contravenes any reasonable understanding of the law. These members cannot divulge what they know; indeed, most members of Congress are not privy to the information. But they maintain that Americans would be “stunned” and “angry” (in Senator Ron Wyden’s words) if they knew the truth. That truth continues to elude frustrated reporters.
According to Goldsmith the Bush era achieved unparalleled oversight and accountability.
Then there are the criteria our government uses to target individuals for drone strikes—yet more critical information that seemingly resides outside the ecology of transparency. Attorney General Eric Holder and top counterterrorism official John Brennan recently summarized the government’s legal justification for targeting U.S. citizens and its criteria for targeting “specific al-Qa’ida terrorists.” But in a little-noticed turn of phrase, Holder said citizens could be targeted in “at least” the circumstances he identified—meaning that the government may target citizens under other, unspecified circumstances as well. And Brennan pointedly limited his remarks to the targeting of “specific” terrorists, sidestepping a journalist’s question about the reported use of “signature strikes” to attack unidentified individuals whose behavior raises suspicions. We still do not know the full parameters of the government’s targeted killing operation.
These and other “known unknowns”—such as the extent and nature of the government’s rendition practices and proxy detentions by other nations on the CIA’s behalf—suggest that the ecology of transparency is not equal to the task it faces. And, of course, there is no way to assess the universe of “unknown unknowns.” Journalists have revealed some information about some government activities, but there may be others about which the public still knows nothing.
Goldsmith is right to point out that the media scored important victories against the executive branch’s efforts to conduct the war on terrorism entirely in secret. Those victories are perhaps insufficiently acknowledged by open-government advocates. But the executive branch scored wins of its own. The exact tally matters less than the fact that much key information remains unavailable, preventing the constitutional system of checks and balances from operating at all—let alone with the success that Goldsmith attributes to it…