Losing the Law Wars
I was very interested to read the New York Times essay on Jack Goldsmith, recently referenced on this blog by Roger Alford. Oddly enough, a week ago, I posted a draft essay, Losing the Law Wars: The Bush Administration’s Strategic Errors, that made some criticisms of the Bush administration’s policies from the outside similar to his from the inside. The link for those interested is available here.
My bottom line is that the Bush Administration’s excessive ideological interest in expanding executive power prevented it from going to Congress to get endorsement of its often sensible policies on terrorism and war. In my view, the Administration could have succeeded in getting congressional endorsement for reasonable policies on detention, interrogation and war crimes trials of enemy combatants as well as surveillance of communications made by suspected terrorists abroad. Such endorsements would have avoided Supreme Court defeats and would have showed the world that many of the Bush administration policies are the considered judgments of the majority of the representatives of the American people.
The larger lesson is this: in any long struggle—and the war against radical Islamic terrorist organizations is likely to be a long one—an administration must gain and show to the outside world it has gained the broad support of the American people. To be sure, in emergencies the President can often act unilaterally, but in the long run there is no substitute for obtaining broader, bipartisan support. Gaining that support improves the content of those policies and gives them the durability to survive the vicissitudes of political and military fortune. And while I am skeptical that the President has any obligation to abide by customary international law, departures from treaties must generally be validated by Congress, except where they intrude on the relatively narrow inherent powers of the President in non-emergency situations.
It may not be surprising that Jack and I have similar views. I was the Deputy Assistant in the Office of Legal Counsel from 1987-1991 primarily responsible for national security matters. I am grateful, however, that I was not tested by the terrible events faced by my successors. My reservations as an academic concerning the Bush Administration’s legal performance should not be interpreted as the claim that I would have done any better in the heat of battle.