POWER AND CONSTRAINT

Ten years into the war on Islamist terrorism, a Harvard Law professor offers an unconventional take on the growth of presidential power.

From the beginning, the Bush administration viewed the 9/11 attacks not merely as a crime, but as an act of war, justifying the full deployment of the president’s powers as head of the U.S. military. From this increasingly controversial premise flowed a series of aggressive and much-criticized counterterrorism measures: the military detention of terror suspects and the device of military commissions to prosecute them, the unchecked discretion to choose among a variety of forums for trying terrorists, the construction of the so-called “black site” prisons around the world, the targeting and killing of enemy suspects, the liberal use of rendition, the increased surveillance at home and abroad and the enhanced interrogation techniques to elicit intelligence. How is it that three years into the succeeding administration virtually all talk about “shredding the Constitution” has vanished, that these bitterly decried practices have either been only marginally curtailed or even expanded? Goldsmith (The Terror Presidency: Law and Judgment Inside the Bush Administration, 2007, etc.), a former Bush Justice and Defense Department attorney, rejects the cynical explanation that it’s all politics, a case merely of the vocal left giving a pass to the Obama administration. Rather, he insists that our system of checks and balances is working just fine, if not precisely in the way the framers imagined, to curb the predictable wartime excesses of the executive branch. Yes, to some extent since 9/11, the congress, courts and establishment press have caught up, reining in the president, but Goldsmith points to something unprecedented in our history: the emergence of what he terms the “presidential synopticon,” the many watchers of the executive branch—lawyers, inspectors general, human-rights activists—aided by new information technologies and the Internet and empowered by law to limit unilateralism, require accountability, force reform and help generate a consensus about legitimate practices.

A provocative look at constraints on the modern presidency, not quite as imperial as we may have feared.