A major thesis of Jack Goldsmith’s The Terror Presidency is that changes in the law, and in the legal culture, since the Vietnam era unduly hamper the executive branch’s defense of this country against jihadists. Two of the six chapters in the book develop this thesis. In chapter 2—“The Commander in Chief Ensnared by Law”—Jack contrasts the “permissive legal culture” in which FDR conducted World War II with the “hornet’s nest of complex [domestic] criminal restrictions” and the “lawfare” of international laws and foreign courts that have hampered the Bush administration: “the administration has been strangled by law, and … this war [since 9/11] has been lawyered to death.” In chapter 4—“When Lawyers Make Terrorism Policy”—he discusses the huge, and in his view often deleterious, effect that lawyers have had on terrorism policy after 9/11.
As an illustration of the transformation of the legal culture, Jack presents a remarkable account of the military trial and execution of eight Nazi saboteurs (one of whom was an American citizen) captured in the United States in late June 1942. With the Nation and the New York Times supporting the need for secrecy, the military trial of the saboteurs began days later—on July 8, 1942—in a room in the Justice Department (the very space that, in a later configuration, was to become Jack’s office and my own). When the Supreme Court announced three weeks into the trial that it would entertain the saboteurs’ habeas corpus petitions, FDR told Attorney General Biddle that he wouldn’t hand the saboteurs over, no matter what the Court decided. Learning of this threatened non-compliance, Chief Justice Stone commented that it “would be a dreadful thing”—and within a few days the Court upheld the legality of the military trial. The Washington Post and the New Republic applauded the ruling, and six of the eight saboteurs were executed less than a week after the guilty verdicts. Whereas “Roosevelt had issued a one-page order and his commission was up and running a few days later,” in the aftermath of 9/11 “it took a half dozen or so Department of Defense lawyers years to craft, clear in the bureaucracy, and publish the many hundreds of pages of rules, procedures, and definitions that international and domestic law, and broader notions of societal justice, demanded for military commission trials in the twenty-first century.”
Jack’s point is not to defend the trial of the Nazi saboteurs but rather to highlight how the transformation in the legal culture (a transformation that occurred for “many good reasons”) has made it more difficult for the executive branch to protect the nation. In particular, “many of the laws criminalizing warfare [are] subject to multiple interpretations,” so executive-branch officials conducting war-related actions “openly worry that investigators acting with the benefit of hindsight in a different political environment [will] impose criminal penalties on heat-of-battle judgment calls.” Before 9/11, “the criminalization of war and intelligence contributed to the paralyzing risk aversion that pervaded the White House and the intelligence community” and that deterred the CIA in the mid-1990s from killing Osama bin Laden (even though OLC in the Clinton administration had concluded that the statutory ban on assassination would not apply). After 9/11, “playing it safe” is no longer an option.