Jonah, I have to confess that I haven’t read Jack Goldsmith’s book yet, and I’m reluctant to go too far out on a limb without having done that. I admire Jack a great deal, much as I admire John Yoo, and I was very sorry to hear that their high-stakes professional disagreements seem (not surprisingly) to have strained their friendship according to Jeffrey Rosen’s account, which I agree was engrossing — Jeffrey is always worth reading, even — or perhaps especially — for those disinclined to his point of view.

For what it’s worth, my views on the central conflict Jack addresses are no secret. I don’t think national security is essentially a legal issue. I think it is a political issue that has some significant legal aspects. But, as I’ve repeatedly noted, I agree with Justice Jackson’s assessment in the 1948 Chicago Southern case: In national security matters (including foreign affairs, the collection of intelligence against foreign threats, and the use of force against foreign threats) the framers ingeniously intended there must be an accountability nexus between the decision-makers and the American people whose lives are at stake. That is to say, these matters are political in nature, not legal. The checks in the system — which I believe in deeply, though they have been out of favor since World War II — are primarily political: (a) the ballot box and (b) the competing powers of the executive branch and congress to conduct operations, oversee them (and, to some controversial extent, regulate them), and finance them. The federal courts were not meant to be a significant player (or, perhaps, a player at all) in this equation. They are not institutionally competent to do so and, more importantly, they are not accountable to Americans.

When you “legalize” or, as I think Jack puts it, “judicialize” this quintessentially political arena, you are making at least two fundamental errors. First, you are shifting responsibility for protecting our citizens and our system from the most accountable to the least accountable actors, therefore ensuring that life-and-death decisions will be made based not on a self-determining people’s sense of what should be the balance between security and liberty, but on an insulated elite’s assessment of what its pieties require. (I say “its pieties” rather than “the law” because judges here are applying abstract principles like “due process,” which are more than elastic enough for them to impose their subjective sense of right and wrong — which tends to be very subjective). Second, you are unrealistically assuming that the endlessly variant forms of threat posed by people who are not members of our body politic and not subject to our laws can somehow be regulated by antecedent legal rules in which those people are given many (if not all) of the presumptions and rights of Americans accused of crimes.

From what I gather so far based on Ed’s typically insightful posts, Jack’s book is an effort to relate the struggle of high-ranking officials who fully understand that this system is dangerously out of kilter yet are sworn to uphold it. I feel his pain. In much smaller compass, I found it excruciating to know it was vital to convict the Blind Sheikh and his subordinates while, at the same time, complying with my oath – which bound me to honor their presumption of innocence; to provide them with intelligence for the presentation of their defense; to advise the court on occasion that they needed to be permitted to introduce evidence of dubious admissibility lest the appellate court later say their constitutional right to an effective defense had been infringed; and constantly to put myself in the shoes of their defense counsel, assessing all the information at my disposal with an eye toward how it might help undermine my own case (which is what makes it arguably exculpatory and therefore discoverable for the defendants).

What I sense is missing from the commentary about the book so far is the unprecedented degree to which the party out of (executive) power uses law as a club — turning what should be good-faith policy disagreements into accusations of crime and other legal improprieties.

I think our presumptions need to be rethought, but let’s assume for argument’s sake that we are comfortable with national security being regulated as if it were merely a legal problem. It is all well and good to criticize the Bush administration, as Jack evidently does, for being too unilateralist — for seeming to work against congress and the courts, rather than working together with them to chart a course forward. I agree with at least some of this critique. But I find some of it pretty unrealistic. (I am speaking of the generally known critique — again, I haven’t read Jack’s book, and I am anxious to see where he comes out on this.)

Does anyone remember what it was like trying to get the Patriot Act renewed? Did anyone read yet another hysterical page-one story in the New York Times yesterday about data-mining? Has anyone noticed that Democrats had to be dragged kicking and screaming to tweak FISA a few weeks ago — and that they did it only temporarily and over heated calls from their base that they were helping Bush shred the Constitution?

You can say that Bush has weakened executive power by relying on it too much. He probably has. But is it really fair to say the opposition would have willingly joined him in crafting better legal guidelines for dealing with this threat? Maybe. Maybe if Bush had been a better communicator — one who reveled in the challenge of making Americans understand why the current web of domestic and international law is perilous to protecting our security — he’d have gotten more cooperation and our national debate would have been more civil and enlightening. But that’s giving the other side an awful lot of credit which, based on their performance since 2002 or so, is a stretch.