Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11
W. W. Norton, $26.95 (cloth)
Jack Goldsmith speaking at Arizona State University in April. / Photograph by Tom Story / Arizona Board of Regents
At the outset of his new book, Power and Constraint, Harvard law professor Jack Goldsmith makes the case that President Obama has continued many of his predecessor’s most controversial counterterrorism policies. From preventive detention to the state secrets privilege to military commissions, Goldsmith asserts, Obama has adopted practices that he criticized in his presidential campaign.
This claim of continuity rankles Obama supporters who believe that the president’s approach to counterterrorism evinces a respect for the rule of law that his predecessor lacked. But the claim is not a new one. It has been put forward both by conservatives who consider the continuity a validation of President Bush’s approach and by liberals who consider it a betrayal. Indeed, even Obama’s staunchest defenders acknowledge some unexpected similarities between the two administrations in national security matters.
More provocative is Goldsmith’s argument about why this is the case. He contends that, contrary to conventional wisdom, the Bush era was one of unparalleled oversight and accountability. After 9/11 the executive branch initially assumed broad and intrusive powers, which it exercised largely in secret. The media, aided by Freedom of Information Act requests from NGOs, uncovered these secret acts. Congress, the courts, and internal agency watchdogs then pushed back and trimmed the president’s powers. By the time Obama took office, existing policies reflected a rigorous application of the constitutional system of checks and balances. By continuing those policies, Obama did not abandon the reformist commitments he made during his campaign, as some believe. The policies already had been reformed, and whether they ended up in the “right” place is, Goldsmith asserts, beside the point.
Goldsmith is no mere observer of the events he describes. In his brief tenure as the head of the Justice Department’s Office of Legal Counsel (OLC), Goldsmith made the unprecedented decision to withdraw two standing OLC opinions: the “torture memos” authored by John Yoo. The memos, he found, provided a flimsy legal justification for subjecting terrorist suspects to “enhanced interrogation techniques” that included waterboarding, shackling suspects in “stress positions,” confining them in small boxes, subjecting them to extreme temperatures, and preventing them from sleeping. With the exception of waterboarding, however, Goldsmith did not dispute the legality of the practices—only the quality of the memos authorizing them—and so allowed them to continue.
A conservative who occasionally deviates from the party line, Goldsmith approaches his subject with his usual civility and willingness to acknowledge merits on both sides of an argument. Moreover, the material is exhaustively researched. It is difficult to take issue with any of the facts he presents, with one significant caveat: his information about still-secret executive practices necessarily comes from interviews with anonymous officials, whose motives and biases are unknown and whose statements are not verifiable. Nonetheless, taking all of Goldsmith’s facts as true, do they support his contention that our constitutional system of checks and balances led us to a genuine place of compromise and consensus, and is that where we should be? Here, one can—and should—take issue.
Goldsmith first takes on the popular conception that the Bush administration’s notorious secrecy scuttled any meaningful oversight. He acknowledges that the administration did its best to conceal many counterterrorism activities. He nonetheless contends that these efforts foundered on an “ecology of transparency” (a term coined by legal scholar Seth Kreimer) in which leaks are commonplace, a wealth of public information can be used to deduce secret information, and the news media’s investigative forces are magnified by bloggers and other citizen journalists. News outlets accordingly exposed highly secret programs including undisclosed CIA prisons, enhanced interrogation techniques, and warrantless wiretapping by the National Security Agency (NSA).
Goldsmith’s observations are accurate, as far as they go. For instance, it’s true that the New York Times wrote about the NSA’s warrantless wiretapping in 2005, albeit long after the practice’s inception. The coverage prompted the government to release some details about its Terrorist Surveillance Program, which targeted communications between people in the United States and suspected terrorists abroad. But it failed to pry loose official information about other NSA surveillance activities referred to, but not described, in the unclassified version of a 2009 joint inspectors general report. Despite strong evidence that the government has broadly collected both domestic and international communications, basic information remains unavailable to the public, including how many Americans have been affected and whether the government is merely studying communications traffic patterns or is mining actual content. On this issue of overriding public importance, there are still more questions than answers.
On other issues, journalists’ best efforts have failed to uncover even rudimentary information. Under Section 215 of the Patriot Act, the government may secure an order from a secret court to obtain “any tangible thing” in a terrorism investigation. For years, some members of the congressional intelligence committees have sounded the alarm that the government is relying on a twisted interpretation of Section 215 to conduct a secret intelligence program that contravenes any reasonable understanding of the law. These members cannot divulge what they know; indeed, most members of Congress are not privy to the information. But they maintain that Americans would be “stunned” and “angry” (in Senator Ron Wyden’s words) if they knew the truth. That truth continues to elude frustrated reporters.
According to Goldsmith the Bush era achieved unparalleled oversight and accountability.
Then there are the criteria our government uses to target individuals for drone strikes—yet more critical information that seemingly resides outside the ecology of transparency. Attorney General Eric Holder and top counterterrorism official John Brennan recently summarized the government’s legal justification for targeting U.S. citizens and its criteria for targeting “specific al-Qa’ida terrorists.” But in a little-noticed turn of phrase, Holder said citizens could be targeted in “at least” the circumstances he identified—meaning that the government may target citizens under other, unspecified circumstances as well. And Brennan pointedly limited his remarks to the targeting of “specific” terrorists, sidestepping a journalist’s question about the reported use of “signature strikes” to attack unidentified individuals whose behavior raises suspicions. We still do not know the full parameters of the government’s targeted killing operation.
These and other “known unknowns”—such as the extent and nature of the government’s rendition practices and proxy detentions by other nations on the CIA’s behalf—suggest that the ecology of transparency is not equal to the task it faces. And, of course, there is no way to assess the universe of “unknown unknowns.” Journalists have revealed some information about some government activities, but there may be others about which the public still knows nothing.
Goldsmith is right to point out that the media scored important victories against the executive branch’s efforts to conduct the war on terrorism entirely in secret. Those victories are perhaps insufficiently acknowledged by open-government advocates. But the executive branch scored wins of its own. The exact tally matters less than the fact that much key information remains unavailable, preventing the constitutional system of checks and balances from operating at all—let alone with the success that Goldsmith attributes to it.
In Goldsmith’s account Congress effectively fulfilled its oversight function in the years after 9/11. He acknowledges that, under the auspices of the National Security Act, only a few members—a “Gang of Eight”—were informed about the government’s interrogation and warrantless wiretapping programs. The CIA’s interrogation program was disclosed to an even smaller “Gang of Four.” He nonetheless argues that these few members could have taken measures on their own to stop the programs. They merely chose not to.
In fact, Goldsmith’s handful of historical examples notwithstanding, individual members can do little to rein in the administration and its agencies. Even when the executive branch briefs the full intelligence committees, a meaningful response often entails a wider vote, which is why the National Security Act specifies that the committees should alert other members of Congress to matters requiring their attention. The executive branch, however, has required members of the “gangs” who serve on the committees to forfeit this reporting authority as a precondition for learning classified information, and they have obliged.
Moreover, Goldsmith admits that pushback by the intelligence committees is rare, noting that “perverse political incentives usually keep them from serving [their oversight] function well.” As he explains, there are few political rewards to secret battles with the administration, and members “tend not to like responsibility for national security decisions,” particularly controversial ones.
But Goldsmith nonetheless assumes, “Even dysfunctional oversight has important ‘before-the-fact’ disciplining and accountability effects . . . spark[ing] valuable deliberation and care inside the executive branch.” This is a rare weak moment in the book. Executive branch officials are rational actors: they do not respond to anemic oversight with vigorous self-checking. Far from engaging in “valuable deliberation and care,” the Bush administration notoriously limited discussions about its interrogation and warrantless wiretapping programs to those officials who were likely to go along with them. Only one handpicked OLC attorney was informed about the wiretapping program, and lawyers for the State Department and the NSA were not allowed to see OLC opinions on interrogation and wiretapping.
Nor does the record support Goldsmith’s claim that post-9/11 legislation represented robust pushback. Almost every time it emerged that the executive branch was violating a statute, Congress rushed to legalize the infraction. When the Supreme Court ruled that the government violated Guantánamo detainees’ statutory right to judicial review of their detention—habeas corpus—Congress rescinded habeas through the Detainee Treatment Act. When the Supreme Court ruled that Bush’s military commissions were inconsistent with the Uniform Code of Military Justice, Congress dutifully changed the Code. When news broke that the NSA violated the Foreign Intelligence Surveillance Act (FISA) by wiretapping citizens’ international communications without warrants, Congress amended FISA to allow the practice to continue. Beyond these legislative validations, Congress provided the FBI with breathtaking new powers through the Patriot Act and repeatedly extended them despite clear evidence of abuse compiled by the Justice Department’s inspector general.
Goldsmith relies on a handful of legislative provisions to proclaim the glass half full. His strongest example is Senator John McCain’s amendment to the Detainee Treatment Act. The amendment reaffirmed the prohibition on “cruel, inhuman and degrading treatment” established in international law. But it did not prohibit the CIA’s use of any specific interrogation techniques that had been reported, including waterboarding. Nor did it establish the same prohibition by limiting the CIA to the techniques available to the Department of Defense. Further, the statute stripped the courts of jurisdiction over detainees’ claims, making the McCain amendment essentially unenforceable.
Congress rushed to legalize almost every executive branch infraction.
The statute thus left the administration plenty of wiggle room. Indeed, as Goldsmith notes, the Justice Department had already “concluded that the program was consistent with language similar to the McCain amendment.” And, for good measure, Bush issued a signing statement declaring his authority to ignore the legislation—an authority he willingly exercised in other contexts. Goldsmith correctly points out that the administration decided to scale back the CIA’s interrogation program, but it is difficult to accept his claim that Congress forced this result.
Moreover, the Detainee Treatment Act provided interrogators with a defense against prosecution for past acts of torture if they did not know that their actions were unlawful and they reasonably relied on the Justice Department’s advice. This was a stark repudiation of the government’s obligation under international law to prosecute acts of torture regardless of the circumstances under which the torture occurred. Goldsmith argues that the provision of a legal defense itself represented meaningful pushback because the executive branch had sought absolute immunity. But as a former Justice Department official, Goldsmith surely knows that the Department does not prosecute people who have a plausible statutory defense. Congress thus effectively granted the requested immunity to those interrogators who stayed within the permissive bounds approved by the Justice Department.
Goldsmith credits the courts with dramatically reshaping the executive branch’s post-9/11 policies, focusing on the handful of Supreme Court decisions involving Guantánamo detainees. These decisions were indeed bright spots in an otherwise bleak landscape of executive impunity, but subsequent developments have limited their effect.
Most notably the Court held that Guantánamo detainees could invoke habeas corpus to challenge their detentions in court. Under procedural rules fashioned by trial court judges, about half of the detainees who sought habeas prevailed. Yet many of these detainees remain in captivity or under watch today.
In some cases the government transferred the detainees to other countries but reportedly exacted promises that they would be imprisoned or monitored there. In others the government could not find a suitable country to accept the detainees and refused to release them in the United States. Although this refusal amounted to a violation of the trial court’s orders, the Supreme Court failed to intervene. In still others the government appealed to the D.C. Circuit Court of Appeals, which has sided with the government in almost every case and has rewritten the rules to make it nearly impossible for any detainee to obtain release. Again the Supreme Court has declined to step in to enforce its own rulings.
Goldsmith’s focus on the Supreme Court’s Guantánamo decisions also obscures the far greater number of cases in which courts refrained or were prevented from exercising their oversight role. The NSA’s warrantless wiretapping unquestionably violated the law, which provides criminal and civil sanctions for the government officials and telecommunications companies that colluded in the violations. Yet not a single government official was prosecuted, and the only civil case against the government that has been litigated to its conclusion was dismissed because the judges ruled that plaintiffs couldn’t prove their standing to sue without revealing state secrets. Lawsuits against the telecommunications companies were dismissed after Congress granted the companies retroactive immunity.
A court also declined to exercise oversight in the case of a U.S. citizen living in Yemen, Anwar al-Awlaki, whom the government planned to kill. Al-Awlaki’s father sued to require that the government demonstrate that his son was a threat. The judge ruled that whether the executive branch may unilaterally execute a citizen far from any battlefield is a “political question” that a court cannot answer. He also ruled that al-Awlaki’s father had no standing to sue because he would not be injured by the killing of his son. Nine months later al-Awlaki and his own sixteen-year-old son were killed in separate CIA drone attacks.
The courts similarly have refused to hear any cases involving torture by or at the direction of U.S. officials. In three cases challenging extraordinary rendition—the practice of kidnapping terrorist suspects and sending them to other countries to be tortured—the government argued that the litigation would expose state secrets. Even though each material fact in those cases already had been revealed through reporting or the plaintiffs’ complaints, the cases were dismissed. Judges also ruled that U.S. officials could not be sued for approving or implementing torture because it did not violate any clearly established rights.
No officials in the CIA have been prosecuted for torture; Goldsmith argues that the individuals responsible have suffered enough.
The lack of accountability for torture is striking. The Convention against Torture, to which the U.S. is a party, requires parties to prosecute acts of torture without regard to any claim of “exceptional circumstances” or reliance on a supervisor’s orders. The obligation to prosecute acts of torture in armed conflict—considered among the worst of war crimes—is so fundamental that it has attained the status of “customary international law,” which makes it binding on all nations. Yet nearly a decade after the revelation that CIA interrogators implemented a program of torture (to debate whether techniques such as waterboarding constitute torture is absurd), the Justice Department has not prosecuted any CIA official in connection with the program, and Congress has passed legislation (the Detainee Treatment Act) that dooms any such prosecution to failure.
Goldsmith—who wants us to believe that systems of oversight, accountability, and checks and balances are intact—is quite comfortable with this result. In a particularly revealing part of the book, he argues that the individuals who developed, facilitated, and implemented the CIA’s torture program have suffered enough. After all, while the Justice Department refused even to censure John Yoo and Jay Bybee—two OLC attorneys who mangled the law in their memoranda justifying the program—a top-level Justice Department official “was critical of Yoo and Bybee, and the two lawyers’ reputations were damaged.” These two reputationally damaged lawyers are now a tenured professor at a top law school (Yoo) and a federal court of appeals judge (Bybee).
Goldsmith similarly decries the fact that the Justice Department investigated on two separate occasions (but, except for one contractor who beat a detainee to death, did not prosecute) interrogators who went beyond even the draconian techniques of the CIA’s program. He describes the launching of a second investigation as “unprecedented and demoralizing,” forcing individuals who believed they were in the clear “to go through the distracting and psychologically draining process of lawyering up, spending dozens of hours refreshing their memories . . . and preparing for and facing a grand jury under oath.” He also observes that the CIA convened “Accountability Boards” that resulted in a few officials being demoted or paid less, although others were promoted. It should go without saying that demoralization, distraction, and demotion do not constitute accountability for torture.
Goldsmith places great faith in oversight mechanisms within the executive branch. Of course, internal oversight is not evidence that the constitutional system of checks and balances is alive and well. The founders never intended that the executive branch check itself. But even accepting the potential utility of executive self-policing, there is little reason to conclude that it operated effectively in the Bush administration.
Goldsmith relies heavily on the presence of scores of lawyers in the military and intelligence agencies who weren’t there several decades ago. He quotes officials, some named and some unnamed, who say that the lawyers inspire caution and care—perhaps too much—in the conduct of war.
The proliferation of military and intelligence lawyers in recent decades is not surprising, not only because the law of war has undergone significant development over the same period, but because lawyers have multiplied in every walk of American life. On its own, this tells us little. The mafia has a bevy of lawyers, and not because it values accountability. Lawyers may serve as an organization’s conscience, but they also may serve as its enablers, depending on context and on the pressures they face.
“The obvious danger in this secret environment,” Goldsmith observes, “is that the [government] lawyers will identify too closely with their clients’ missions and not provide sufficiently detached legal advice.” Notwithstanding notable instances of pushback by military lawyers, the “danger” Goldsmith cites is more of a certainty. After all, White House and agency attorneys generally act as their clients’ agents, not objective analysts of the law. They are expected and professionally obligated to serve their employers. Goldsmith nonetheless concludes, “CIA lawyers have learned from bitter experience that poor legal advice will lead to scrutiny and calumny.” Nothing in the book supports the notion that lawyers who give their bosses the answers they want to hear fare worse than those who do not.
Goldsmith also focuses on the agencies’ inspectors general, who investigate potential misconduct and report their findings to the agencies and to Congress. To varying degrees inspectors general have succeeded—some quite remarkably—in exposing executive misconduct. But oversight is not the same as accountability. The inspector general’s role is to tee up issues for administrative and legislative action. Regarding torture, the administrative and legislative responses to the CIA inspector general’s revelations have fallen woefully short of what international law and basic principles of accountability demand. Regarding FBI surveillance, the DOJ inspector general’s reports of abuse and negligence prompted some procedural changes at the Bureau, but the Justice Department has successfully pressured Congress to preserve intact the legal powers that were abused.
Goldsmith leaves out a particularly notable expansion of executive power—one that the executive branch conferred on itself and that neither Congress nor the courts have confronted, let alone curtailed. Before 9/11 Justice Department guidelines attempted to safeguard First Amendment freedoms by barring FBI agents from monitoring political or religious organizations unless they had reason to suspect wrongdoing. A similar “factual predicate” was required before agents used certain intrusive techniques, including round-the-clock physical surveillance, informants, and interviews of a person’s friends and associates under false pretenses. The Justice Department twice amended its guidelines after 9/11 to eliminate these constraints.
Neither Congress nor the courts have confronted post-9/11 Justice Department guidelines that allow religious and ethnic profiling.
The factual predicate requirement operated as a check against using race, ethnicity, religion, or political beliefs as bases for law enforcement scrutiny. Since the requirement was eliminated, former FBI informants have testified in court that they were sent to mosques not to pursue leads about particular people or plots, but to eavesdrop on conversations indiscriminately. Internal FBI guidance, obtained through Freedom of Information Act requests, directs agents to collect information about “concentrated ethnic communities.” Unchecked by internal or external forces, such practices are even more widespread today than they were in the early post-9/11 years, despite substantial evidence that religious and ethnic profiling are ineffective and could actually harm security by reducing cooperation between the targeted communities and law enforcement.
Particularly in today’s polarized political environment, it is natural to celebrate any deviation from the extreme and to view the result as a sign of appropriate moderation. Mere movement toward the center should not be confused with centrism, however; nor should the outcome be applauded apart from its merits. Goldsmith makes both mistakes.
In assessing how far we’ve moved, he reads much into the fact that all of the people he interviewed, no matter what perspective they represented, “believed that they were on the losing end of the stick in trying to influence U.S. counterterrorism policies.” He gives a series of examples, such as: “The CIA believes it spends way too much time reporting to and responding to investigations by politicized congressional intelligence committees,” while “the intelligence committees believe the CIA underreports its activities and cannot be trusted.” The implication is that the truth must be in the middle.
But that simply doesn’t follow. In a “he said, she said” situation, one doesn’t reach the truth through triangulation. To be sure, executive branch officials did not get everything they wanted—and for that reason alone, it’s not surprising they believe they “lost.” The administration’s position after 9/11 was an all-or-nothing one: the president’s authority is absolute when he acts as commander in chief to defend the nation. Even the smallest incursion on executive authority would signal defeat.
The truth is that counterterrorism policies at the end of the Bush administration looked much more like they did right after 9/11 than like those advocated by critics. A notable change was the abandonment of waterboarding and other disgraceful elements of the CIA’s interrogation program (although some of the original enhanced interrogation techniques continued). But even here there is little evidence that the change resulted from governmental oversight and enforcement, as opposed to the political impossibility of openly engaging in a universally condemned war crime. Another theoretically significant change was the establishment of judicial review for preventive detention, but the promise of that change is ebbing under appellate court rulings and the government’s failure to release detainees granted habeas.
Many of the Bush administration’s early policies were unchanged—or little changed—when Obama took office. Procedures surrounding preventive detention evolved, but the practice itself continued, despite the controversy it generated. Military commissions continued under legislative rules that borrowed heavily from Bush’s proposal to Congress. Extraordinary rendition continued with increased involvement by foreign partners. Warrantless wiretapping of international communications proceeded with Congress’s blessing and the judiciary’s role reduced to a cameo appearance by a secret court. The collection of domestic communications, as far as we know, went on. The sweeping legislative authorities granted to the FBI remained in place, and the Justice Department’s rules for the FBI grew more permissive rather than less. The targeted killing program continued (and expanded under Obama). The prison at Guantánamo Bay remained open.
Goldsmith sees a more balanced outcome in part because he conflates novelty with significance. For instance, he portrays Congress’s 2006 military commissions legislation as an instance of aggressive oversight because Congress had never before prescribed detailed rules for military commissions. He ignores the fact that, notwithstanding a few important changes on which Senators McCain and Lindsey Graham insisted, there were more similarities than differences between the legislation the President proposed to Congress and the bill Congress passed.
Precedent is a particularly useless guide when dealing with unprecedented claims of power. Congress may not previously have prescribed those commission rules, but the government also has not previously established a system of commissions with rules that differ markedly from those of courts martial. Internal agency watchdogs may not previously have scrutinized the government’s techniques for interrogating prisoners of war, but the executive branch also has not in modern history embarked on a program of torturing captured enemies. The Supreme Court may not previously have recognized enemy combatants’ right to file habeas petitions, but the government also has not previously detained members of loosely defined non-state forces—many captured in non-belligerent countries—on territory that was under the sole jurisdiction of the United States. That the reactions were unprecedented in these cases says more about the aggressiveness of the powers asserted than about the aggressiveness of the responses to them.
In an endless war, the time of reckoning is forever pushed back, and we are locked into a state of permanent executive overreach.
At times Goldsmith appears to concede that forces outside the executive branch did very little to rein it in. He tells us, “The bitter reality” for those who oppose the “unusual executive powers” exercised by the Bush administration “is that the courts, Congress, and the American people do not share their outlook, and the United States is in a place at the end of 2011 where they desperately do not want it to be.” Having considered whether the President could exercise these extraordinary prerogatives, the other branches of government, “with caveats, told the President he could.” But these admissions are not entirely consistent with his central thesis of vigorous pushback and “bruising separation-of-powers battles.”
Goldsmith pointedly disclaims any intent to pass judgment on whether the government’s counterterrorism policies are the “right” ones, whether they succeed in preventing terrorist attacks “while at the same time preserving other values as much as possible.” But one cannot evaluate how well the system of checks and balances functioned without evaluating the result. If current policies violate individual rights enshrined in the Constitution, allow the executive branch to crowd Congress and the judiciary out of their rightful spheres, or betray core Constitutional values that we proclaim to the world, then we cannot say that the system of checks and balances has worked. The mere fact that Congress passed some legislation and the courts decided some cases doesn’t prove otherwise.
Goldsmith, however, equates “consensus”—the supposed buy-in of Congress, the courts, and the public—with “legitimacy,” two terms he often uses together. The linkage is puzzling, as he acknowledges that the executive branch has often overreached during wartime, intruding on constitutionally guaranteed liberties with the acquiescence of the other branches of government and the public. History has not treated the resulting policies as legitimate simply because they were widely accepted when implemented. To the contrary, as Goldsmith explains, the pendulum tends to swing back when the war is over and the “lessons learned” inform the next conflict. That is one of the most frightening aspects of the potentially endless war we are now fighting: the time of reckoning is forever pushed back, and we are locked into a state of permanent executive overreach accompanied by legislative, judicial, and public acquiescence.
The unprecedented claims of power asserted by the executive branch since 9/11 are particularly troubling given that even traditional wartime powers arguably go too far in this non-traditional conflict. For instance, it is not clear that preventive detention is appropriate in a potentially endless war against non-state actors. The sole purpose of wartime detention is to prevent soldiers from returning to battle. In the current war, it is exceedingly difficult to define, let alone identify, who is a “soldier,” and a mistake can mean a life sentence. Moreover, soldiers in traditional wars are almost certain to return to battle—desertion is illegal—whereas the government’s own statistics suggest that most released Guantánamo detainees do not reengage. Finally, in the current non-traditional war, there is an alternative to preventive detention: anyone who engages in or materially supports terrorism can be dealt with through the criminal law.
Despite Goldsmith’s promise to forego judgment on where executive powers ended up—and despite the generally measured and respectful tone of the book—he occasionally betrays his own bias. He describes the CIA inspector general’s review of the agency’s torture program as “menacing.” He characterizes the well-documented fact that many Guantánamo detainees were innocent or abused (or both) as a “narrative” that NGOs, detainee lawyers, and journalists “worked . . . to develop.” He calls the human rights community “alarmist” and its charges “strident.” He describes the group of detainees remaining at Guantánamo as “dangerous terrorists” and deems their continued detention an “extraordinary accomplishment,” despite the fact that most of them were long ago cleared for release by the executive branch or the courts but are stuck in permanent and horrifying limbo.
Goldsmith claims to be satisfied with the status quo because everyone is equally frustrated by it or because it represents consensus—mutually exclusive assertions, although he presents them as the same—and it is therefore legitimate. But only someone comfortable with the expansive model of executive power that has emerged since 9/11 could see either widespread frustration or widespread accord as sufficient to establish its legitimacy. If Goldsmith believed this model to be dangerous and constitutionally suspect, he would refuse so low a standard. And he would be right to do so.
Elizabeth Goitein co-directs the Liberty and National Security Program at New York University School of Laws Brennan Center for Justice.