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Jack Goldsmith’s The Terror Presidency—Part 1


In this and a small number of follow-on posts, I’m going to discuss The Terror Presidency, a deeply interesting (and eminently readable) new book by Harvard law professor Jack Goldsmith, who served as Assistant Attorney General for DOJ’s Office of Legal Counsel from October 2003 to June 2004.


Let me begin with some appropriate disclosures.  Appointed as principal deputy in OLC in August 2001—about two weeks before the 9/11 attacks—I was welcomed by Jack to continue in that position under his tenure.  Although we worked together for only about six months, we forged both a fine working relationship and a strong friendship during that period, a friendship that I am pleased to say continues.  In the acknowledgments section of his book, Jack generously includes me in a list of former colleagues whom he thanks for “their friendship, good advice, and integrity.”  I’ll add that I did not review any drafts of Jack’s book and did not in any other respect offer advice on its substance.


Besides being a friend and admirer of Jack’s, I also have esteem for (and in some cases friendship with) folks whose actions and decisions Jack criticizes.  I readily confess that I have no interest in placing myself in any crossfire.  I also am not well positioned to comment on the issues in immediate dispute, as my own involvement at OLC in opinions on national-security matters generally ranged from non-existent (especially on the opinions that have been the subject of greatest controversy) to marginal. 


This story in yesterday’s Washington Post highlights that The Terror Presidency “provides an unusual glimpse of fierce internal dissent over the legal opinions behind some of the Bush administration’s most controversial tactics in detaining and interrogating terrorism suspects.”  That is true but woefully incomplete.  I can’t fault political reporters for their narrow focus (that’s their job), nor is it surprising that opponents of the Bush administration will embrace Jack’s ardent critique of its “strange and unattractive views of presidential power.”  (For the reasons that I have indicated, I will be agnostic on the merits of the critique.) 


But, as I hope to discuss in follow-on posts, Jack’s book is far more than a discussion of the Bush administration’s understanding and exercise of presidential power.  It is, among other things, a deeply conservative critique of the development in recent decades of various “lawfare” constraints on the President’s exercise of traditional wartime powers.  And it is a revealing and sympathetic account of the conflicting pressures that executive-branch officials face as they try to protect the country from terrorism.

Tags: Whelan


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