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":

Obama on indefinite detention: a Goldsmith blueprint?

The Obama Administration's National Security Strategy includes a statement of intent to develop a system of "prolonged detention" of "suspected violent extremists" who "cannot be prosecuted":

For detainees who cannot be prosecuted--but pose a danger to the American people--we must have clear, defensible, and lawful standards. We must have fair procedures and a through process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government (p. 36).

Three observations about this policy: 1) The report of Obama's Guantanamo Review Task Force, completed in January but just leaked to the Washington Post and published yesterday, elaborates in some detail why the Administration believes that 48 of the detainees at Guantanamo (and presumably many more at Bagram) cannot be prosecuted and cannot be released.  2)  Obama's basic intent on this front has been in place for more than a year -- he sketched out essentially the same policy in May 2009.   3) The system of "prolonged detention" he has in mind, only briefly elaborated in May 2009 and May 2010, seems to adhere to a more detailed proposed program laid out in February 2009 by Jack Goldsmith, the former head of the Bush Administration's Office of Legal Counsel who withdrew the torture memos and resigned after just nine months.

Human Rights Watch's true-blue conservative

Early this year, David Brooks put on his Big Think cap and counterpoised against our society's alleged individualist shibboleths a communitarian ethos put forward by political scientist Hugh Heclo in a book published last summer, On Thinking Institutionally. As relayed by Brooks:

In this way of living, to borrow an old phrase, we are not defined by what we ask of life. We are defined by what life asks of us. As we go through life, we travel through institutions — first family and school, then the institutions of a profession or a craft.

Each of these institutions comes with certain rules and obligations that tell us how to do what we’re supposed to do. Journalism imposes habits that help reporters keep a mental distance from those they cover. Scientists have obligations to the community of researchers. In the process of absorbing the rules of the institutions we inhabit, we become who we are.

New generations don’t invent institutional practices. These practices are passed down and evolve. So the institutionalist has a deep reverence for those who came before and built up the rules that he has temporarily taken delivery of. “In taking delivery,” Heclo writes, “institutionalists see themselves as debtors who owe something, not creditors to whom something is owed.”

While Brooks never used the word "conservatism" he was plainly holding up this "institutional" ethic as a kind of Platonic conservative ideal. Proud professionals devote their lives to "saving" the honorable essence of institutions that themselves conserve the distilled wisdom of generations.

From this standpoint, Tom Malinowski, Washington Advocacy Director for Human Rights Watch, is a true-blue conservative. Consider his call to trust in the accumulated wisdom of core U.S. institutions in his June 9 testimony before the Senate Judiciary Subcommittee on the Constitution:

Seven years after Guantanamo opened, a stable set of rules for determining who should be detained and with what degree of due process has still not emerged.

Some of these problems are due to the inherent flaws of the system. But many are the inevitable result of creating any new system from scratch, especially one that deviates so much from standards with which US courts are comfortable and American lawyers are familiar. America's civilian criminal justice system, on the other hand, has been around for more than 200 years. The Uniform Code of Military Justice has been around for almost 60. We've had all that time to get the kinks out of the system, to establish stable rules, to train a cadre of lawyers and judges who know those rules, and to develop special procedures for special kinds of cases, including those involving terrorism.

If we try again to create a new system from scratch, if we rely again on trial and error to work out the rules, the result will again likely be more error than trial. Eventually, stable rules may emerge, after all the legal challenges and legislative re-dos are exhausted. But how long should we be prepared to wait to get to that point? Five years? Ten years? Can the United States afford more years of controversy over how to detain suspected terrorists?

To Obama, who has signaled that he wants to revamp rather than scrap the improvisations of the Bush administration - military commissions and preventive detention -- Malinowski points out that there's a kind of infinite regress in trying to reproduce the due process protections of the criminal justice system in a new regime that grants the Federal government powers the whole purpose of which is to short-circuit those protections:

Theoretically, one could design a system of preventive detention that affords detainees such a high level of due process and judicial review that it would not look like Guantanamo, or even Guantanamo-lite. But if you allow protections similar to those already provided by federal courts and courts martial, why go to the trouble of creating a new system at all?

Commentators as diverse as Andrew Sullivan, Martin Wolf and Jack Goldsmith have pointed to a kind of conservatism in Obama -- a propensity to retool rather than radically remake existing institutions, a reform impulse that aims to restore institutions to working order. With regard to treatment of detainees, Obama promises to work within our political institutions, in concert with Congress and the courts, to revamp military commissions and create Constitutional rules for preventive detention. But reforming and "conserving" Bush's radical, ad hoc exercise of this power may simply serve to codify core violations of Constitutional principles as previously understood. As Diane Marie Amann, a law professor at UC Davis, warned in the wake of Obama's May 20, speech on national security:

He signaled a plan by which they — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

President Obama promised that his “new legal regime” — words identical to those Bush Administration official John Yoo used in 2002 –- will provide an array of “fair procedures.” That ought to be a given, for the Constitution requires due process before liberty may be deprived. But no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.

Time will tell how "institutionally" Obama thinks about the U.S. Constitution.

Is trusting Obama like trusting Bush?

Conferring any new power on our elected officials raises the question of trust in leadership -- in two ways. In one sense, our constitutional principles enjoin us never to trust leadership -- that is, we expect leaders' actions to be in all instances bound by statute. But we may choose to write statutes that give them more discretion, or empower them to do things -- for example, listen in on overseas conversations involving an American without a warrant -- that they were not previously empowered to do.

The question of trust looms large as Obama prepares to ask for the authority for preventive detention -- that is, holding suspected terrorists as prisoners of war, indefinitely without trial. Trust is at issue because a President and his senior officials have access to evidence and information that the rest of us lack.

Glenn Greenwald has thrown down the gauntlet of unreasoning trust repeatedly to Obama's supporters who have not opposed decisions including release of the photos of prisoner abuse, reconstitution of the military tribunals, and preventive detention. Greenwald's challenge: if you opposed a policy under Bush, how can you accept it under Obama?

That challenge should be grappled with, rather than answered with a simple yes or no. Two questions seem salient. First, when Obama decides not to break fully with a Bush Administration practice, is his policy necessarily the same? Second, are there circumstances in which an appropriately vigilant citizen might accept the President's judgement in place of his or her own?

On the first question -- can Obama continue a Bush practice while substantively changing the policy, Jack Goldsmith offers an answer: Obama differs by rejecting unilateral presidential action, instead seeking the buy-in of Congress, the electorate and the courts. Here is the gist of a contrast worked out in detail in the final section of Goldsmith's memorable comparison of Bush and Obama in TNR, The Cheney Fallacy:

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric....

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.

This determination to work within his Constitutional powers (in order to expand them!) is vey much on display in Obama's May 20 speech at the National Archives laying out his national security policy, including his intent to reconstitute military commissions and seek preventive detention:

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Of course, a policy can be pursued through legal means and still be wrong. And defenders of civil liberties -- including some of the truest heroes of the past eight years, who battled the Bush Administration's assault on the Constitution long and hard and won crucial victories -- regard preventive detention as a Rubicon. Here's how Diane Marie Amann, a law professor at UC Davis put it in the Times (h/t Greenwald):

He signaled a plan by which they — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.
President Obama promised that his “new legal regime” — words identical to those Bush Administration official John Yoo used in 2002 –- will provide an array of “fair procedures.” That ought to be a given, for the Constitution requires due process before liberty may be deprived. But no amount of procedures can justify deprivations that, because of their very nature violate the Constitution’s core guarantee of liberty.

But what about the practical claim that many detainees who are too dangerous to release can't be prosecuted in ordinary trials? Jameel Jaffer and Ben Wizner, writing in Salon in December '08 (also cited by Greenwald), summarized a point-by-point rebuttal in a Human Rights Watch report written by former federal prosecutors Richard Zabel and James Benjamin:

The report, "In Pursuit of Justice," examines more than a hundred international terrorism cases that were prosecuted in U.S. federal courts, and concludes that those courts are well-equipped to accommodate the government's legitimate national security interests without compromising the fundamental rights of criminal defendants. Federal prosecutors have an imposing array of prosecutorial weapons for targeting suspected terrorists, including statutes that criminalize assault and homicide, the use of weapons of mass destruction, and harboring or concealing terrorists.
Of the many statutes that prosecutors have employed against suspected terrorists, perhaps the most far-reaching are those that criminalize the provision of "material support" to organizations that have engaged in terrorism or have been designated as terrorist organizations. These statutes allow the government to secure convictions without having to show that the defendant actually intended to further terrorism, and indeed without having to show that any specific act of terrorism has taken place or is being planned. Thus, in recent years, defendants have been convicted of material support for attending terrorist training camps, for giving medical aid to injured fighters, and for supplying funds for the humanitarian activities of designated terrorist groups. In fact, the material support laws are so sweeping that they have been criticized for criminalizing conduct that is protected by the First Amendment. (In one pending case in New York, the government is prosecuting a man whose "material support" consisted of rebroadcasting a Hezbollah television station in Brooklyn, N.Y.) But while one can fairly criticize the material support laws for criminalizing too much conduct, it would be difficult to criticize them for criminalizing too little. Given the vast sweep of those laws, it is hard to imagine that Guantánamo holds any substantial number of men who are simultaneously impossible to prosecute and yet too dangerous to release.

The contention that the federal courts are incapable of protecting classified information -- "intelligence sources and methods," in the jargon of national security experts -- is another canard. When classified information is at issue in federal criminal prosecutions, a federal statute -- the Classified Information Procedures Act (CIPA) -- generally permits the government to substitute classified information at trial with an unclassified summary of that information.

On the other side of the issue is Jack Goldsmith:

For many reasons, it is too risky for the U.S. government to deny itself the traditional military detention power altogether, and to commit itself instead to try or release every suspected terrorist.

For one thing, military detention will be necessary in Iraq and Afghanistan for the forseeable future. For another, we likely cannot secure convictions of all the dangerous terrorists at Guantanamo, much less all future dangerous terrorists, who legitimately qualify for non-criminal military detention. The evidentiary and procedural standards of trials, civilian and military alike, are much higher than the analogous standards for detention. With some terrorists too menacing to set free, the standards will prove difficult to satisfy. Key evidence in a given case may come from overseas and verifying it, understanding its provenance, or establishing its chain of custody in the manners required by criminal trials may be difficult...the problem only grows when the evidence is old. And perhaps most importantly, the use of such evidence in a criminal process may compromise intelligence sources and methods, requiring the disclosure of the identities of confidential sources or the nature of intelligence-gathering techniques, such as a sophisticated electronic interception capability.

Goldsmith further argues that trying some terrorist suspects in civilian courts may damage civil liberties:

The Moussaoui and Padilla prosecutions highlight an under-appreciated cost of trials, at least in civilian courts. The Moussaoui and Padilla trials were messy affairs that stretched, and some observers believe broke, our ordinary criminal trial conceptions of conspiracy law and the rights of the accused, among other things. The Moussaoui trial, for example, watered down the important constitutional right of the defendant to confront witnesses against him in court, and the Padilla trial rested on an unprecedentedly broad conception of conspiracy. An important but under-appreciated cost of using trials in all cases is that these prosecutions will invariably bend the law in ways unfavorable to civil liberties and due process....

Obama has apparently accepted arguments very like Goldsmith's. Without elaborating why he believes they can't be tried, Obama on May 20 characterized in some detail those whom he would detain as military prisoners:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.

This claim raises the question: why trust Obama's judgment that a substantial number of such captives are a) too dangerous to be released, and b) impossible to try try in criminal court? For at least a partial answer -- or at least, an important piece of evidence -- I would submit the pattern of Obama's decision-making as displayed since January 20.

On questions of security and civil liberties, Obama has issued split decisions. He banned torture and embraced preventive detention. He released the torture memos and held back the torture photos. He wants to reconstitute but preserve the military commissions.

These decisions look to me like the opposite of triangulation. They seem to be determined not by political calculus, but by a hard look at the facts and by listening to opposed arguments. On the photo question, Obama made it pretty clear that he had been turned by Gates and his generals. On the memo release, he held up at the behest of intelligence officials, decided to buck them, but offered concessions to allay those of their worries he deemed legitimate. Obama calls his approach surgical -- and from what he's revealed of the process, that seems to be an accurate description.

Obama's "trust me" is different in kind from Bush's. Bush meant "trust my gut," trust my good-faith effort to keep America safe, trust me not to abuse an authority that acknowledges no Constitutional bounds whenever a threat to national security can be invoked. Obama's trust me means "trust the process as I lead you through it."

That leaves ample space, of course, to oppose his policies on the merits. I for one am not convinced that we should accord the government the power to detain persons without trial. But I would be disposed to listen assuming Obama makes the case in more detail.

Obama is scrupulously careful about laying down the rules of engagement when he seeks a new authority. Supporters need to be equally rigorous in developing criteria to support or oppose. Personally, until I see evidence of an egregious error in judgement, I remain disposed to give him the benefit of the doubt.

Obama: Preventive detention yes, "unitary executive" no

Jack Goldsmith, the former head of Bush's Office of Legal Counsel who invalidated the early torture memos, has written an indispensable article about the continuities and differences between Obama's emerging antiterror policies and those of Bush's second term.

While concluding that "the main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging," Goldsmith does not dismiss this difference as sleight-of-hand, but holds it up as an essential difference that protects Constitutional limits on Presidential power while paradoxically strengthening that power by obtaining the consent of the governed. There is one aspect of Goldsmith's contrast between Bush's "unitary executive" and Obama's consent-seeking that I'd like to look at more closely.

Goldsmith portrays the "packaging" difference as follows:

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric. Department of Justice opinions and presidential signing statements, for example, made broad claims for an untouchable Commander-in-Chief power that were unnecessary to the tasks at hand. Just as damaging was the administration's frequently expressed desire to expand executive power in order, as Vice President Cheney put it, "to leave the presidency stronger than we found it"...

The Bush administration's...rhetorical strategy led many people to suspect that the president was acting to increase his own power rather than to keep the country safe. The strategy's main effect was to distort the legitimacy of many Bush wartime practices that had been uncontroversial in previous wars....

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.

Goldsmith's analysis is subtle. He oscillates between sardonic references to Obama placing Bush policies in "prettier wrapping" and assertions that the symbolic and procedural changes are in effect the most important "substance" of all. What I want to look at more closely is the contrast Goldsmith sketches between the Bush Administration's assertion of an extreme "unitary executive" theory and Obama's (so far rhetorical) embrace of restraint of the executive by Congress and the courts.

One of the most sweeping of Bush's assertions of executive authority is in the August 1, 2002 Bybee memo authorizing "enhanced interrogation techniques" (i.e., torture). Section 5 addresses "The President's Commander in Chief Power" and considers whether the EIT violate Section 2340A of Title 18 of the United States Code which makes it a criminal offense for any person outside the U.S. to commit or attempt to commit torture. The memo's answer: any mode of interrogation authorized by the President cannot violate the statute, because the President in his Commander in Chief capacity is not bound by the statute -- or any other:

In light of the President's complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas...In order to respect the president's inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. As our Office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander in Chief to control the conduct of operations during a war.

In other words, the President in conduct of war can do whatever he likes to whomever he likes.

Compare Obama's treatment in his May 20 national security speech of the fraught question of preventive detention. In the speech, Obama addressed "the question of detainees at Guantanamo who cannot be prosecuted" -- often because evidence against them was obtained by torture - "yet who pose a clear danger to the American people." He has appalled civil liberties advocates by suggesting that his Administration may seek to hold such people as prisoners of war -- albeit in a war without apparent end. Here is how he framed his prospective authority to do so:

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Here Obama embraces a controversial Bush practice - preventive detention - but abjures the sole authority to executive that practice. He is asserting an extraordinary authority yet diffusing it among the three branches. He implicitly acknowledges the danger inherent in granting this extension of government authority by proposing that it be checked and balanced.

Is it possible to provide adequate checks and balances to a sweeping power like preventive detention? I would still say no. A trial is the means we have developed over centuries to accord due process to those deemed a danger to society. It seems to me that there is a kind of infinite regress in creating procedures -- "due processes" -- that are supposed to preclude the detainee's right to due process. We are substituting a weak check to governmental power for a strong one.

It should be noted that Goldsmith, who effectively rescinded the President's authority to torture and assertion of the extreme "unitary executive" theory, is perhaps the most influential advocate for preventive detention. His February 2009 paper, "Long-term Terrorist Detention and Our National Security Court" lays out in detail the argument that Obama sketched in brief this week -- that the right to "preventive detention" is grounded in the authority to hold prisoners of war, and that the ambiguities of holding people who were not part of a defined army or of a conflict that will have a defined end must be subject to judicial review.

The chief danger of the Bush presidency was its assertion of unlimited executive power. The "packaging" differences that Goldsmith highlights rescind that assumption of absolutism. That's not to say that Obama is right to seek authority to continue policies like preventive detention. But the key word here is "seek." Obama may seek, and obtain, a bad law. But he won't act lawlessly.