Jack Goldsmith on Similarities and Differences in National Security Between Obama and Bush

Jack Goldsmith has a new essay out in The New Republic, “The Cheney Fallacy,” comparing the basic elements of the Obama and Bush national security and counterterrorism policies.  It walks through eleven core features of the national security-counterterrorism apparatus, from Guantanamo to targeted killing to interrogation, etc., and compares the two administrations.  Certainly I think this is the right basic list of terrorism/counterterrorism issues, regardless of how one views them.  The article is called the “Cheney Fallacy” because it rejects Cheney’s recent complaints that the Obama administration is dismantling the Bush era policies that kept the United States, in Cheney’s view, safe from attack.  On the contrary, says Jack, the Obama administration is not just largely following the Bush policies – it is doing so in ways that are, objectively speaking, tending to institutlonalize core elements and give them a legitimacy that they lacked under the Bush administration.  It is a measured and careful essay and bears close reading.  The main difference 

between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.

 

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration’s expansive rhetoric. Department of Justice opinions and presidential signing statements, for example, made broad claims for an untouchable Commander-in-Chief power that were unnecessary to the tasks at hand. Just as damaging was the administration’s frequently expressed desire to expand executive power in order, as Vice President Cheney put it, “to leave the presidency stronger than we found it.”

 

Such rhetoric was unprecedented in American wartime history, and was especially unfortunate in a war involving a novel enemy and widespread public doubts about the appropriateness of using war powers against such an enemy. The public worries about excessive presidential power during war, and prudent presidents try to assuage and meet these concerns. Abraham Lincoln and Franklin D. Roosevelt were the most powerful war presidents in our history. They never talked publicly about a desire to expand their power, for doing so would have been self-defeating and politically stupid. When they exercised extraordinary authorities, as they often did, they put forth a grudging public face, expressions of respect for constitutional values, and explanations about why the steps were an unfortunate but necessary means to an important national security end.

 

The Bush administration’s opposite rhetorical strategy led many people to suspect that the president was acting to increase his own power rather than to keep the country safe. The strategy’s main effect was to distort the legitimacy of many Bush wartime practices that had been uncontroversial in previous wars. The early Bush administration failed to grasp what Lincoln and Roosevelt understood well: the vital ongoing need to convince the citizenry that the president is using his extraordinary war powers for the public good and not for personal or institutional aggrandizement. By the time the Bush administration began to act on this principle in its second term, it was too late; its credibility on these issues–severely damaged not only by unilateralism and expansive rhetoric, but also by mistaken intelligence in the war with Iraq–was unrecoverable.

 

President Obama, by contrast, entered office with great stores of credibility in speaking about the dangers of terrorism and the difficulties of meeting the terror threat. The new president was a critic of Bush administration terrorism policies, a champion of civil liberties, and an opponent of the invasion of Iraq. His decision (after absorbing the classified intelligence and considering the various options) to continue core Bush terrorism policies is like Nixon going to China. Because the Obama policies play against type and (in some quarters of his party) against interest, they appear more likely to be a necessary response to a real terror threat and thus less worrisome from the perspective of presidential aggrandizement than when the Bush administration embraced essentially the same policies.

 

This credibility cannot last forever, and probably won’t last long without careful nurturing. The Obama administration shows every sign of trying to do just that. It seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

This is approximately my own view, so naturally I tend to read it gently.  In large part, the essay is confirming predictions made very presciently in Goldsmith’s The Terror Presidency, but I think it is correct to do so.  Jack’s analysis seems to me particularly right on the issue of consultation and coming to a joint plan with Congress.  As I remarked in an earlier post, this failure to make the two political branches hang together or else hang separately is the core domestic failure of the Bush administration with regard to the war on terror.