Jack Goldsmith's disillusionment

John Podesta, Bill Clinton's former chief of staff, has an op-ed calling on Obama to release the legal memos setting forth the administration's rationale and guidelines for targeted killings. Good for him. As he notes, he has standing to weigh the competing imperatives of national security and public disclosure -- and with respect to the administration's legal deliberations, he comes down firmly on the side of disclosure.

I am more interested, though,  in the thinking of someone with even more standing to address the legal issues arising from the administration's covert operations: Jack Goldsmith, the short-term head of George W. Bush's Office of Legal Counsel who countermanded the insane torture memos that authorized the Bush administration's torture regime.  There's a link to a Feb. 5 Goldsmith op-ed at the bottom of Podesta's. Goldsmith's latest tells a sad story of disillusionment when compared with Goldsmith's 2009 writings.

Goldsmith takes a step back to consider not just the need for disclosure regarding the drone memos but the need to develop a new legal framework for "secret warfare":

The administration’s secret warfare finds support in opinion polls and is almost certainly lawful. Bevies of lawyers and inspectors general monitor secret executive action, as does (in some contexts) a secret intelligence court. And the executive branch regularly reports these activities to select congressional committees that are generally supportive.

Yet the legal and political foundation for secret war is weak. The legal foundation rests mostly on laws designed for another task that government lawyers have interpreted, without public scrutiny, to meet new challenges. Outside the surveillance context, Congress as a body has not debated or approved the means or ends of secret warfare (except, perhaps, through appropriations). Because secret surveillance and targeted strikes, rather than U.S. military detention, are central to the new warfare, there are no viable plaintiffs to test the government’s authorities in court. In short, executive-branch decisions since 2001 have led the nation to a new type of war against new enemies on a new battlefield without focused national debate, deliberate congressional approval or real judicial review.

What the government needs is a new framework statute — akin to the National Security Act of 1947, or the series of intelligence reforms made after Watergate, or even the 2001 authorization of force — to define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.

Goldsmith once expected Obama to pursue such a framework. In May 2009, he asserted that Obama was preserving much of Bush administration counterterror practice -- with some crucial exceptions -- but seemed ready to win broad-based public and institutional buy-in:

The Obama administration...seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

Now, however, he expects no such thing -- leading him to issue a chilling warning to Obama:

A new legal and political foundation for stealth warfare cannot succeed without the initiative and support of the president. The chances of such support, however, are dim. The Obama administration prefers to act based on old authorities and not to engage Congress in establishing new authorities for new wartime challenges. This is unfortunate for U.S. constitutional traditions and for the stability of our long-term counterterrorism strategy. And it is unfortunate for the president, not only because he increasingly acts without political cover, and because his secret wars are increasingly criticized and scrutinized abroad, but also because he alone will be bear the legacy of any negative consequences — at home and globally — of unilateral, lethal, secret warfare.

Why has Obama disappointed Goldsmith -- and effectively killed his hopes for any substantive change going forward? First, there was the hysterical reaction to the administration's early attempts at reform - civilian trials for 9/11 suspects, transfer of Guantanamo prisoners to the mainland -- and the administration's weak and incompetent response to that pushback. Then came the election of the GOP House, its equally hysterical fundamentalism in domestic policy, and Obama's apparent conclusion that it was best to bypass Congress in any realm possible -- i.e., foreign policy and military action.

That reaction, while understandable, embodies what I'm coming to think of as Obama's passive aggression in the face of rooted and sometimes malign and irrational opposition.  Passive aggression is on evidence, as I noted once before, in Obama's dealings with Israel  -- that is, if Jeffrey Goldberg's reporting of Obama's response to Israel's decision to take a step toward development of the controversial E1 bloc on the West Bank is accurate:

When informed about the Israeli decision, Obama, who has a famously contentious relationship with the prime minister, didn’t even bother getting angry. He told several people that this sort of behavior on Netanyahu’s part is what he has come to expect, and he suggested that he has become inured to what he sees as self-defeating policies of his Israeli counterpart.

In the weeks after the UN vote, Obama said privately and repeatedly, “Israel doesn’t know what its own best interests are.” With each new settlement announcement, in Obama’s view, Netanyahu is moving his country down a path toward near-total isolation.

And if Israel, a small state in an inhospitable region, becomes more of a pariah -- one that alienates even the affections of the U.S., its last steadfast friend -- it won’t survive. Iran poses a short-term threat to Israel’s survival; Israel’s own behavior poses a long-term one.

Muttering such self evident truths sotto voce is obviously not going to change anyone's behavior or crimp U.S. enablement of Israeli intransigence.

Perhaps a similar attitude was at work in Obama's blowing off Congress as he pursued military action in Libya -- when the administration argued that "its nearly three-month-old military involvement in Libya does not require congressional approval because of the supporting role most U.S. forces are playing there," as the Washington Post summarized.  

So now, on one level, it's hard to imagine tossing legal memos expressing reasoning that can doubtless be challenged from multiple angles to the fools, clowns and charlatans who interrogated Chuck Hagel ad infinitum on the extent of his fealty to Israel, or to those who seek to foreclose the possibility of any civilian trials for terror suspects.

But as Goldsmith suggests, the consequences of cutting Congress out of counterterror and military policy generally are likely worse than those of taking the heat for administration decisions and winning whatever degree of buy-in it can obtain. Passive aggression is not -- as Obama said about the decidedly un-passive option of invoking the 14th Amendment in the debt ceiling wars -- "a winning option."