Posted by Jonathan Adler:
Does Jack Goldsmith Prefer Barack Obama to Dick Cheney?
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242750091
Harvard law professor Jack Goldsmith, who briefly headed the Office of
Legal Counsel in the Bush Administration, has an interesting essay in
The New Republic, "The Cheney Fallacy," suggesting that the Obama
Administration's approach to counterterrorism is better than that
adopted under President Bush. The article begins:
Former Vice President Cheney says that President Obama's reversal
of Bush-era terrorism policies endangers American security. The
Obama administration, he charges, has "moved to take down a lot of
those policies we put in place that kept the nation safe for nearly
eight years from a follow-on terrorist attack like 9/11." Many
people think Cheney is scare-mongering and owes President Obama his
support or at least his silence. But there is a different problem
with Cheney's criticisms: his premise that the Obama administration
has reversed Bush-era policies is largely wrong. The truth is
closer to the opposite: The new administration has copied most of
the Bush program, has expanded some of it, and has narrowed only a
bit. Almost all of the Obama changes have been at the level of
packaging, argumentation, symbol, and rhetoric. This does not mean
that the Obama changes are unimportant. Packaging, argumentation,
symbol, and rhetoric, it turns out, are vitally important to the
legitimacy of terrorism policies.
After reviewing the key policy areas, and the Obama Administration's
revisions (many of which are marginal or largely cosmetic), Goldsmith
concludes:
One can view these and many similar Obama administration efforts as
attempts to save face while departing from campaign promises and
supporter expectations. And no doubt there is an element of this in
the Obama strategy. But the Obama strategy can also be seen, more
charitably, as a prudent attempt to legitimate and thus strengthen
the extraordinary powers that the president must exercise in the
long war against Islamist terrorists. The president simply cannot
exercise these powers over an indefinite period unless Congress and
the courts support him. And they will not support him unless they
think he is exercising his powers responsibly, under law, with real
constraints, to address a real threat. The Obama strategy can thus
be seen as an attempt to make the core Bush approach to terrorism
politically and legally more palatable, and thus sustainable.
If this analysis is right, then the former vice president is wrong
to say that the new president is dismantling the Bush approach to
terrorism. President Obama has not changed much of substance from
the late Bush practices, and the changes he has made, including
changes in presentation, are designed to fortify the bulk of the
Bush program for the long-run. Viewed this way, President Obama is
in the process of strengthening the presidency to fight terrorism.
This analysis seems right to me. If the Obama campaign could be
criticized for its blindness to the difficult trade-offs the Bush
Administration sought to balance, the Bush Administration was too
hard-line and unilateral for its own good. The Bush team often took
good or necessary ideas too far and was unnecessarily dismissive of
other branches and other opinions. Insofar as the Obama Administration
is trimming the excesses of the Bush Administration's policies, and
paying more attention to how our policies are perceived by friends and
foes overseas, it seems to me they are setting the right course. There
will be further bumps and misteps along the way, but at least we are
heading in the right direction.
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