Jack Goldsmith

Jack Goldsmith

Jack Goldsmith is the Henry L. Shattuck Professor of Law at Harvard University and the author, most recently, of The Terror Presidency: Law and Judgment inside the Bush Administration (W.W. Norton, 2007) and many other books and articles related to terrorism, national security, and international law. Before coming to Harvard, Goldsmith served in 2003–4 as assistant attorney general, Office of Legal Counsel, and in 2002–3 as special counsel to the general counsel to the Department of Defense. Goldsmith holds a JD from Yale Law School, a BA and an MA from Oxford University, and a BA from Washington and Lee University. He clerked for Supreme Court justice Anthony M. Kennedy, Court of Appeals judge J. Harvie Wilkinson, and Judge George Aldrich on the Iran-U.S. Claims Tribunal. Goldsmith is a fellow of the American Academy of Arts and Sciences.

 

Principals reviewing intelligence collection should reinstitute use of the so-called “Front-Page Rule,” said President Obama’s Review Group on Intelligence and Communications Technologies in its Recommendation 18. “That informal precept, long employed by the leaders of US administrations, is that we should not engage in any secret, covert, or clandestine activity if we could not persuade the American people of the necessity and wisdom of such activities were they to learn of them as the result of a leak or other disclosure.”

Whether a secret or covert intelligence action should be carried out if the American people would not approve is a “bizarre question” to many intelligence officials, according to veteran Washington Post national security reporter Walter Pincus.  “In some 40 years of covering intelligence, I have never heard of such a rule, nor have several former senior intelligence officials with whom I have talked,” Pincus added.  Nor, according to Pincus, do these officials think the rule makes sense.

It might seem odd that the Review Group calls for a return to the Front-Page Rule, and that some intelligence officials question its validity.  Intelligence officials obviously worry about the impact of public disclosure of secret intelligence actions, and the possibility of leaks sometimes leads the executive branch not to pursue a planned intelligence action.  Moreover, intelligence officials take steps in advance of an intelligence action — including extensive lawyer approval and congressional consultation and reporting — to shield against recriminations once the action becomes public.  Memoirs of senior intelligence and national security officials over many decades make plain that they consider the consequences of future public disclosure at the time of engaging in secret intelligence action.

It does not necessarily follow, however, that officials should limit their secret actions to those that they think the public would approve of once disclosed.  One might think, as the intelligence officials who spoke to Pincus argued, that as long as the action is lawful under domestic law, the president or senior intelligence officials can pursue secret intelligence actions on behalf of US national security even if they believe the American people would not approve of such action if disclosed.  One might see executive discretion to act as part of the president’s larger discretion, grounded in Article II, to carry out US foreign policy and preserve national security in accord with his best assessment of US interests, regardless of what citizens think between elections.

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Among the most notable but least appreciated points in President’s Obama’s much-analyzed recent speech on ending the long war against Islamist terrorists and closing the Guantanamo Bay detention facility was his endorsement of military commissions.  Despite a checkered history and continuing criticisms, military commissions are playing and will continue to play a crucial role in the long war.

I.

One might be forgiven for forgetting that military commissions are military courts with a pedigree stretching to the founding of the nation that are used to try enemy forces for war crimes and related offenses.  When President Bush established modern commissions in November 2001 without consulting Congress or his National Security Council, he was widely criticized for violating separation of powers and for departing from ordinary standards of wartime justice.  Both problems have been largely fixed in the ensuing dozen years, thanks to a Supreme Court decision, two congressional interventions, continuing federal court supervision, and a lot of hard work at the Pentagon.  While some details in the shape of commissions continue to be challenged, today commissions satisfy the fundamental fairness guarantees of the Geneva Conventions and the structural commands of the Constitution.

President Obama has traveled a long road on commissions.  He criticized them during the 2008 campaign and suspended their use at the dawn of his presidency.  After an intense review, however, he concluded in 2009 that commissions were useful and necessary, and he charged his administration with improving their legitimacy.  In his speech last month, the president insisted that suspected terrorists can be prosecuted in either civilian courts or military commissions, and he announced that he had asked the Department of Defense to designate a site in the United States for commission trials.  On the heels of his speech, news reports suggest that the administration plans to use commissions to prosecute new detainees not already in Guantanamo Bay.

President Obama obviously did not embrace military commissions lightly.  He did so because, as he explained in May 2009, they “allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.”  Commissions have jurisdiction over a narrow class of defendants: non-citizen “unprivileged belligerents” who are captured abroad and charged with violations of the laws of war.  In acknowledgment that the special nature of the defendants and the circumstances of their alleged crimes create practical evidentiary difficulties at trial, commissions depart from the usual civilian court procedures a bit for issues like hearsay, disclosure of sources and methods of intelligence-gathering, and the admissibility of confessions.    These small but real differences are consonant with — and indeed, more defendant-friendly than — analogous departures from civilian standards in international criminal courts or in U.S. military commissions historically.

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The legal foundation for the post-9/11 “war on terrorism”—the September 2001 Authorization for Use of Military Force (AUMF)—is quickly becoming obsolete.  A major challenge for the second-term Obama administration is whether and how to supplement or replace the AUMF.

The AUMF authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . . .”  The authorization of “force” in the AUMF is the basis for detention and targeting of al Qaeda and Taliban members.  In addition, both the Bush and Obama administrations, along with some courts, have construed the AUMF to extend to co-belligerents.  This legal construction is the basis for detention and targeting of forces “associated with” al Qaeda, such as al Shabbab and al Qaeda in the Arabian Peninsula.

This framework is becoming obsolete because some newly threatening Islamist terrorist groups do not plausibly fall within the AUMF.  Many of these groups—such as al Qaeda in the Islamic Maghreb (in Northern Africa) or the al-Nusra Front (a rebel group in Syria associated with al Qaeda in Iraq)—have no direct links to al Qaeda and unclear ones to al Qaeda affiliates.  Regardless of where the precise outer boundaries of the AUMF lie, there is a growing gap between the threats posed by Islamist terrorist groups and the president’s legal authority to meet the threats under the AUMF.

What can the Obama administration do to close this gap?

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Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.

What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law.  It was not a bad idea because it constituted bullying of the Court.  It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position.  After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid.  In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor.  That, I suspect, is why the President has tried to walk back his remarks.

Also surprising to me are conservative protests that the President has crossed the line in criticizing the Court as activist.  President Obama was entirely accurate when he said: “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”  However imprudent and impolitic the President’s remarks, he was in essence mouthing a central conservative complaint about the judiciary since the 1950s.  (I realize that matters are more complicated than this, but during the Obama years many conservatives have indeed been moving away from a jurisprudence of restraint.)  Conservatives were on firmer ground in criticizing the inaccuracy of the president’s claim that striking down the health care law “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  And of course it is odd for President Obama to implicitly embrace judicial restraint as a matter of principle.

Continue reading Jack Goldsmith…

Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.

What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law.  It was not a bad idea because it constituted bullying of the Court.  It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position.  After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid.  In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor.  That, I suspect, is why the President has tried to walk back his remarks.

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Fire When Ready

Instead of convincing critics, Attorney General Holder’s defense of the Obama administration’s targeted killing policy earlier this month seems to have emboldened them. "The idea that the executive branch can be judge, jury, and executioner … totally undoes the system of checks and balances," charged American Civil Liberties Union (ACLU) Executive Director Anthony Romero after Holder’s talk at Northwestern University’s law school. Romero and others have been especially scathing about the lawlessness of last fall’s drone killing in Yemen of U.S. citizen and al Qaeda affiliate leader Anwar al-Awlaki.

In this new age of drone warfare, probing the constitutional legitimacy of targeted killings has never been more vital. The Obama administration has carried out well over 200 drone strikes in its first three years, and the practice promises to ramp up even more in the next few years as the United States decreases its footprint in Afghanistan and relies even more heavily on special operations and covert actions centered around the use of drones. There are contested legal issues surrounding drone strikes, and — in contrast to issues like military detention and military commissions — courts have not pushed back against the presidency on this issue. But judicial review is not the only constitutional check on the presidency, especially during war. Awlaki’s killing and others like it have solid legal support and are embedded in an unprecedentedly robust system of legal and political accountability that includes courts but also includes other institutions and actors as well.

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New Book

I have a new book out today: Power and Constraint: The Accountable Presidency after 9/11.  It argues that constitutional checks and balances deeply constrain the national security presidency, and that these checks and balances are the key to understanding Barack Obama’s continuation of George W. Bush’s counterterrorism policies, as well as the broad national consensus in support of those policies.

The presidency has of course grown in many ways during the first decade of indefinite war against Islamist terrorists and other modern threats.  Much less noticed, but just as important, is a revolution in wartime presidential accountability that has shaped and legitimated the growth in presidential power.  Congress and courts pushed back harder against the presidency than in previous wars, in the process vetting, altering and ultimately blessing his core counterterrorism policies.  These traditional institutions received crucial support from something new and remarkable: giant distributed networks of lawyers, investigators, and auditors, inside and outside the executive branch.  In conjunction with the press, these forces watched the presidency closely and enforced legal and political constraints against it.  By 2009, almost all of George W. Bush’s counterterrorism policies had been altered and blessed in ways that Barack Obama – seized of the responsibilities of the presidency – found impossible to resist.  The same forces that pushed against Bush from the left also pushed against Obama from the right and prevented him from closing GTMO and trying GTMO terrorists in civilian courts.  Two presidents with starkly different views about executive power and proper counterterrorism tactics ended up in about the same place because constitutional forces more powerful than the aims of the presidents were at work.  In telling this story about modern presidential accountability, I draw on over 80 interviews with political, military, and intelligence officials in the Bush and Obama administrations, and with key representatives in the modern accountability regime for the presidency, including members of Congress and their staffs, federal judges, government lawyers and watchdogs, national security journalists and their editors, and human rights activists.

If you read the book I hope you like it.

President Obama, at his press conferenceyesterday, in response to republican candidates’ hawkish calls for a more aggressive posture toward Iran:

Now, what’s said on the campaign trail — those folks don’t have a lot of responsibilities.  They’re not Commander-in-Chief.  And when I see the casualness with which some of these folks talk about war, I’m reminded of the costs involved in war.  I’m reminded that the decision that I have to make in terms of sending our young men and women into battle, and the impacts that has on their lives, the impact it has on our national security, the impact it has on our economy. This is not a game.  There’s nothing casual about it.  And when I see some of these folks who have a lot of bluster and a lot of big talk, but when you actually ask them specifically what they would do, it turns out they repeat the things that we’ve been doing over the last three years, it indicates to me that that’s more about politics than actually trying to solve a difficult problem.

There is truth in what President Obama says here.  And he speaks from experience.  For everything he says about the republican candidates applies to many of candidate Obama’s 2008 criticisms of Bush administration counterterrorism policies.  Those criticisms were made by someone with no national security responsibilities, who did not have to face the concrete impact on U.S. national security of changing the Bush policies, and who thus could engage in bluster and big talk about the vices of the Bush approach.  Once Obama became Commander in Chief, once he assumed responsibility for U.S. national security, once he was forced to consider the concrete costs of the counterterrorism changes he promised or hinted at on the campaign trail, he acted more prudently.  And that more prudent course ended up looking a lot like the late Bush era counterterrorism policies. I have much more to say about Obama’s continuation of Bush era policies, and its significance for our constitutional order, in my new book, which is available now, and which I will discuss more on the blog on Monday (the official publication date).

(photo credit: White House photo by Pete Souza)