In the Matter of George W. Bush v. the Constitution

Apropos to today’s Supreme Court 5-4 decision that foreign combatants held at Guantanamo are entitled to US civilians’ habeas corpus rights, Commentary’s senior editor and national security writer Gabriel Schoenfeld pens a consideration of “In the Matter of George W. Bush v. the Constitution” for the current issue (also carried by the Wall Street Journal).

Schoenfeld addresses the matter through the cases presented by two books, that of the New York Times’ Eric Lichtblau and that of former head of the Department of Justice Office of Legal Counsel Jack Goldsmith, both critics of administration excesses.

But, there the similarity ceases.

[Lichtblau’s] palette holds only two colors: black and white. On one side of his ledger is the Constitution and the Bill of Rights. On the other side is the Bush administration, and never the twain shall meet. Although he is fully aware of the unprecedented challenge posed to national security by the 9/11 attacks, and of the belief within the government that a follow-on attack was a near-certainty, Mr. Lichtblau declines to suggest what measures might have been appropriate in place of the ones he labors at every step to condemn as "over the top."

By contrast, re: Jack Goldsmith

Answers far more cogent and complex than anything on offer in "Bush's Law" come from a source within the administration itself, in the person of Jack Goldsmith. In 2002, Mr. Goldsmith, a law professor of conservative bent, joined the office of the Pentagon's top lawyer, where he worked on legal issues ranging from Guantanamo to missile defense to military commissions. In fall 2003, he was tapped to join the Department of Justice, there to head the Office of Legal Counsel, the critical subunit within the federal government that determines whether the government's own actions are legal. As Mr. Goldsmith has explained in "The Terror Presidency," a memoir of his stormy nine months' tenure, the OLC, by virtue of its obligation to rule on the legality of particular actions before they are taken, possesses "one of the most momentous and dangerous powers in the government: the power to dispense get-out-of-jail-free cards."...

Fear--rational fear, not the "panic" derisively conjured up by Mr. Lichtblau--was a proper response to such a threat. In acting to avert it, officials might have wanted, in Mr. Goldsmith's words, to "push the law as far as it would allow." But not one of them, he believes, including Mr. Yoo, "thought he was violating the law." In fact Mr. Goldsmith pens a qualified tribute to Mr. Yoo, noting that he has defended every element of the [interrogation] opinion to this day, and I believe he has done so in good faith. Yoo was indispensable after 9/11; few people had the knowledge, intelligence, and energy to craft the dozens of terrorism-related opinions he wrote. The poor quality of a handful of very important opinions is probably attributable to some combination of the fear that pervaded the executive branch, pressure from the White House, and Yoo's unusually expansive and self-confident conception of presidential power.

Here we get to one of the real bottom lines:

Agree or disagree with Mr. Goldsmith at every point, one does not come away from his book believing that Mr. Bush's men acted recklessly. To the contrary: compared with what some of their predecessors did, most notably Roosevelt in his handling of Japanese-Americans, they have acted with astonishing restraint in the face of a danger that, by its hidden nature, has exerted a far darker pressure on the responsibilities of statesmen than did the one facing Roosevelt after Pearl Harbor.

Not only that, but their approach has succeeded. Although we still do not know what might yet come at us tomorrow out of the blue sky, the United States, against all expectations, has not been attacked again since Sept. 11. For that reason alone, Mr. Goldsmith is surely right in speculating that future historians may yet "come to view President Bush as we now view Lincoln and Roosevelt," his constitutional lapses, like theirs, "regrettable but relatively unimportant episodes in the larger arc of liberty." At the same time, Mr. Bush's accomplishments "will likely always be dimmed by our knowledge of the administration's strange and unattractive views of presidential power."

The other bottom line:

That seems a subtle and judicious appraisal. How refreshing it is to read such words next to the countless tracts painting Mr. Bush and his associates as torturers and aspiring tyrants. Particularly despicable has been the attempt to turn John Yoo into a pariah. In an additional irony, some of those leading the charge--notably, journalists like Eric Lichtblau, James Risen and their editors at the Times--have declared themselves willing to take the law into their own hands whenever it suits them. Brushing aside statutes that apply to all Americans, they have pledged not to honor grand-jury demands for their testimony in investigations of national-security leaks, even gravely serious ones involving the disclosure of operational counterterrorism programs. In an even more egregious assault on our law and on our security, they have elicited classified counterterrorism information from disaffected government officials and published it for everyone, including our mortal adversaries, to devour.

The exact degree of damage wrought by these efforts to undermine government policy is difficult to specify given the secrecy in which intelligence programs, including the NSA program, remain wrapped. But Mr. Goldsmith is only the latest in a long line of officials privy to the workings of the NSA program who have testified to the severity of the injury. "I was not opposed to . . . vigorous surveillance of terrorists," he writes of the NSA program. "I agreed with President Bush that the revelations by Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done 'great harm' to the nation."

The degree of hypocrisy in Mr. Lichtblau's book and similar journalistic efforts is staggering. It is exceeded only by the intellectual slovenliness with which he and his colleagues have advanced their case and the quantity of self-inflating gush in which they tend to wrap themselves.