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Katyal on Goldsmith's Terror Presidency:

Georgetown law professor Neil Katyal has an extensive review of Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration in The New Republic. It should be available to non-subscribers who register, and it is worth a read. The review begins:

Jack Goldsmith's book is quite possibly the first sober account of the pressures that a post-9/11 president faces in the attempt to respond under the rule of law to the security threats facing this country. The book is largely a memoir of Goldsmith's service as an assistant attorney general for the Office of Legal Counsel (OLC), and of his terrible predicament as he found himself in the midst of an extraordinary debate among administration officials about how best to respond to the threat of terrorism. While OLC operates in relative obscurity for most Americans, it is in fact a genuinely significant institution of American government: all thorny legal questions within the executive branch are supposed to be submitted to this tiny elite office. OLC is the "decider" of these questions, and its judgments bind the entire executive branch.

In the fulfillment of his duties at OLC, Goldsmith said no to the White House on various matters, including torture and electronic surveillance. As a result, he soon left his Justice Department position and decamped to Harvard Law School. Now he has written this remarkable book--a book that anyone concerned about civil liberties in the war on terror must read. Goldsmith is not a civil libertarian. And this is not a kiss-and-tell book. It is a serious book with a serious lesson: that the war on terror is here to stay and will continue to pose extraordinary challenges to our current legal framework. Those inclined to think that the next administration will instantly shut down mass detention centers such as Guantanamo, or promptly terminate massive electronic surveillance under the Patriot Act, are likely to be sorely disappointed, no matter who sits in the Oval Office.

I agree with Katyal that The Terror Presidency is a must read, as much for those (like myself) who are inclined toward a more "conservative" view of international law and expansive view of executive power as anyone else. Combining first-hand accounts with thoughtful analysis and explanation of the relevant legal context, Goldsmith provides a quick tour of the central legal issues confronting post-9/11 counter-terrorism efforts. He also provides ample reason for those who have supported the administration on such issues to reconsider their position.

Among the many interesting points in Katyal's review is his cautionary discussion of the relevance of contemporary academic theories to the real world of governing and policy.

Reading Goldsmith's account of his experience of an academic theory applied to public policy in a time of crisis, one comes away with some rueful thoughts about the larger question of the relationship between the legal academy and the practice of law. The various events depicted in Goldsmith's book were set in motion by a wild notion dreamed up in America's law schools. Yoo's unitary-executive-on-steroids idea was not the first crazy theory to emerge from the legal academy; but it is likely the first to have achieved a secret stranglehold on the levers of government.

Law professors at elite universities today are predominantly theoreticians, paid to come up with large and original ideas. In the real world, if you came up with an idea like the John Yoo version of the unitary executive theory, you would get laughed out of town, because such a theory does not comply with the traditions and the values of this country. But in the legal academy, you get tenure. This trend in the modern law school, where practice has been subordinated to theory, has several consequences, but the most important one is that law professors can get sold on a theory with little understanding of how its implementation would work and what it would actually mean. There is little or no field-testing of these theories: legal scholars are rewarded mainly for cleverness and originality. The phenomenon is exacerbated by the fact that many top law schools are increasingly hiring faculty with no significant experience in legal or government practice.

Given the ideological leanings of most legal academics, I suspect this could be as great a problem, if not greater, in a prospective Democratic administration. It is a problem nonetheless.

I am not convinced by every point in Katyal's essay. For instance, I am not sure about his proposal to reform OLC. Still, those interested in these issues should read the review and, if they have not already done so, read Goldsmith's book.

tvk:
For me, the criticism of law school theory makes no sense. At the end of the day, this means that law school professors locked in their ivory tower, whose ideas never get implemented, is a bad thing. But even law school professors whose ideas do get implemented, is still a bad thing. Where does this leave law professors and their ideas?

If the comment is that ideas should not even be left to simmer a little bit in academia before being implemented, that just can't be right. See, e.g., Chicago school ideas on antitrust, carbon trading, etc. etc. One suspects that the bottom line here is that Katyal just strongly disagrees with the ideas that actually got implemented, quite regardless of their origin.
11.2.2007 8:13pm
wm13:
tvk, I think the point is that we need a different class of law professors: people who have experience in actual practice (be it in government or in private practice, or maybe better yet in both). People like that will devise theories that work better. As it is, actual practical experience, other than judicial clerkships, even at the highest level (e.g., Cravath associate, Solicitor General's office), is not helpful to a law professor's career in the way that Ph.D. is.
11.2.2007 8:27pm
cboldt (mail):
I got a different message from Katyal's comments relating to "ivory tower" folks being put into practice.

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He wasn't so much against "ivory tower" as he was urging caution in implementing new ideas, and in particular, ideas that might be viewed as "radical" changes in "the way things work." Not that he's against changes, but changes should be vetted across a wide spectrum, rather than implemented by individual fiat and belief.
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Those who operate outside of academia tend to be more cautious about using "new" devices, because accountability tends to be closer to home. Hence, I think those who have operated outside of academia tend to ask around a bit more (for consensus, understanding, looking for pitfalls and unanticipated side effects, etc.) before trying something outside of the old cookie cutter.
11.2.2007 8:28pm
SIG357:
Is the idea of a unitary executive actually new and radical? There seems to be nothing there which all previous Presidents have not asserted.
11.2.2007 8:32pm
tvk:
Thanks for the clarification, but to me Katyal's point is still rather circular. Law professors should have more practical experience, but while in practice we should distrust pointy-headed academic ideas. If the government should shun academics and their ideas, why would any academic want to work in government? And if none of them do, then the practical experience becomes impossible to obtain.

Of course, we can have a one way street where academia just sucks up the former practicing lawyers but never lets them out. I don't think that would be a good idea.

I still think that, bottom line, the cause of Katyal's concern is the substance of the idea and not its origin. Would Katyal still criticize the idea's origin if, for example, an academic suggested wild idealistic ideas such as universal healthcare, consitutional right to education, etc. etc.? Somehow I am skeptical.
11.2.2007 8:56pm
Crunchy Frog:

Would Katyal still criticize the idea's origin if, for example, an academic suggested wild idealistic ideas such as universal healthcare, consitutional right to education, etc. etc.? Somehow I am skeptical.

Of course no academic has ever suggested any of those ideas, or would think to do so before vetting it with people with real world experience...
11.2.2007 9:20pm
cboldt (mail):
-- Is the idea of a unitary executive actually new and radical? --
.
It depends on the definition and meaning given to the term "unitary executive." Some understand/take that to mean accountability to the president (the buck stops there, for actions of his subordinates). Others construe unitary executive to mean an executive who extends the power of the presidency beyond the boundary intended by the constitution, i.e., who does not properly apply balance of powers principles.
11.2.2007 9:26pm
Francis (mail):
Given the ideological leanings of most legal academics, I suspect this could be as great a problem, if not greater, in a prospective Democratic administration.

thanks for the evidence-based "But the Democrats must be worse" addition. Is there some libertarian bloggers' code that requires this?
11.2.2007 10:09pm
sashal (mail):
personal observation:
1) the immigrants or their kids from the countries with strong authoritarian/totalitarian tendencies( Koreans, Russians, etc)support or promote the idea of the strong, unlimited by quaint unnecessary laws, executive;
2) many Americans , who never experienced the life under unrestricted executive power, support that too.
Why is that?
Is that in the Human nature?-The desire for the strong protective daddy figure?
11.2.2007 10:58pm
DavidBernstein (mail):
I'm a big fan of Neal's, but he should no better than to think that John Yoo somehow invented the theory of the "unitary executive on steroids." One could go back to the Wall Street Journal during the last period when Republicans were in power, from 81-93, and see very similar theories of total executive control over anything related to foreign affairs being propounded. John didn't graduate law school until 1992, so I hardly think we can give him credit or blame.
11.2.2007 11:36pm
DavidBernstein (mail):
Make that, "know better."
11.2.2007 11:37pm
CDU (mail):
thanks for the evidence-based "But the Democrats must be worse" addition. Is there some libertarian bloggers' code that requires this?


I think it's a fairly obvious point, given the predominant liberal tilt of the legal academy. If there are more liberal academics than conservative ones, academia will probably produce more stupid liberal ideas than stupid conservative ones. This doesn't mean liberals are any more stupid, just that they are more numerous.
11.2.2007 11:43pm
pireader (mail):
In recent years, senior government officials have repeatedly endorsed crack-pot theories on thin "evidence" that would be laughed out of any serious forum in the real world. And worse, the government has then acted on those theories, with results ranging from merely-unfortunate to disastrous. Examples include:

(1) Saddam Hussein's responsibility for 9/11

(2) Saddam Hussein's nuclear-weapons program (2003)

(3) Democratizing the Middle East through military action

(4) Raising tax revenue by cutting tax rates

(5) Climate change denialism

(6) "Intelligent design" as an alternative to Darwinian evolution

(7) Terry Schiavo's chances for recovery

In all these (and many other) cases, we saw the same pattern of decision-making. Senior officials adopted a flaky theory for emotional, religious, ideological or partisan reasons unrelated to evidence or expertise. Then they scraped up supportive "experts"--going down to the barrel's bottom when necessary.

You can always find somebody to support a theory if you look hard enough. Blaming ivory-tower academics for that seems a bit unfair.

How this all applies to John Yoo, we can debate. But the New York Times recently (10/4/07) reported Dep. Attorney General James Comey's take:

At one testy 2004 White House meeting, when Mr. Comey stated that "no lawyer" would endorse Mr. Yoo's justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: "No good lawyer," according to someone present.

It's no coincidence that Mr. Addington is chief of staff to Vice President Cheney, who was apparently a (or the) prime mover behind a majority of the theories listed above.
11.3.2007 7:48am
Moneyrunner43 (www):
Talk about self inflicted wounds:

(1) Saddam Hussein's responsibility for 9/11
You are kidding, right? This administration claimed that Saddam was responsible for 9/11?

(2) Saddam Hussein's nuclear-weapons program (2003)
That's right, after his first nuclear plant was bombed, we knew he had no interest in nukes from then on.

(3) Democratizing the Middle East through military action
When sweet reason has worked so well.

(4) Raising tax revenue by cutting tax rates
Every bother to check the total tax take by the feds? If not, stop making statements that are factually incorrect.

(5) Climate change denialism
Right! We have always had a static climate until man came along to screw things up! (Sarcasm for the humor impaired).

(6) "Intelligent design" as an alternative to Darwinian evolution
Two not necessarily opposing ideas.

(7) Terry Schiavo's chances for recovery
We solved that problem by killing her and burying the evidence.
11.3.2007 9:54am
Moneyrunner43 (www):
Is anyone still reading the NY Times?

At one testy 2004 White House meeting, when Mr. Comey stated that "no lawyer" would endorse Mr. Yoo's justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: "No good lawyer," according to someone present.

I do like the quote as an example of juvenile snottyness.
11.3.2007 9:57am
Bob from Ohio (mail):

Mr. Comey shot back: "No good lawyer," according to someone present.


I like a good zinger too.

Remind me who is out of government and who is still influencing policy (got promoted even).
11.3.2007 10:05am
Moneyrunner43 (www):
Do I misunderstand you? "No good lawyer" is not an argument, and certainly not a good "zinger." I would be ashamed to be associated with people who make these sort of comments outside of juvenile hall.
11.3.2007 10:31am
karl (mail):
Perhaps law professors developing these untested theories should think about one of Henry Hazlitt's primary rules for developing an economic theory: Always evaluate the SECONDARY CONSEQUENSES of the theory's implementation.
11.3.2007 11:06am
Shannon Love (mail) (www):
Lawyers in academia face the same intrinsic problem that all scholars in the humanities face: they have no objective means of proving their hypothesis wrong.

Without any means of testing their ideas, the ideas thrive or die based on nothing but peer popularity. Since as a group, academics pay no real world price for being wrong, they tend to latch onto theories for reasons having little to due with their predictive power of functional utility. For personal reasons, they defend these theories to the death long after they lose even the faintest trace of validity.

Real world law evolves though numerous interactions of those involved in the day-to-day implementation of the law. The real function of academics is to provide post hoc justifications for how real world law evolved.
11.3.2007 11:16am
anomie:
I think it's a fairly obvious point, given the predominant liberal tilt of the legal academy. If there are more liberal academics than conservative ones, academia will probably produce more stupid liberal ideas than stupid conservative ones. This doesn't mean liberals are any more stupid, just that they are more numerous.

Is this a new theory of supply-side politics? The more obvious point would seem to be that the vulnerability of political leaders to wild legal theories is more a matter of what those leaders are demanding than of the academic supply. It doesn't seem that there was any lack of supply to meet the Bush administration's demand, so it is hard to see how a presumed further excess of supply would make a hypothetical Democratic administration any more vulnerable to wild theories.
11.3.2007 11:29am
John (mail):
The trouble with academics giving advice is often that in the academy there is no such thing as failure. There are too often only ideas and various forms of mental gymnastics, where one performance, no matter how bizarre, tops another.

Without failures--of the sort that actual humans suffer in their work every day--important lessons cannot be learned, and it is that learning that guides good judgment and sensible action.
11.3.2007 11:46am
Randy R. (mail):
"-- Is the idea of a unitary executive actually new and radical? -- "

No, not at all. By any other name, it is called an absolute monarch, or a dictator. Perhaps having a unitary executive is radical for the US, but that's because our founding fathers were very wary about such a thing. Bush is not.

Sashal: "Is that in the Human nature?-The desire for the strong protective daddy figure?"

It is when people are afraid of something and want strong action taken.

Moneyrunner: Nope, you are wrong, The Bush administration specifically noted the ties between Sadaam and the terrorist attacks repeatedly, and there never was any evidence that he had any nuclear weapons programs.

As for tax cuts, Arthur Laffer himself wrote a column recently that stated that he orginiated the idea of tax cuts spurring the gov't, but that he never meant that tax cuts *always* mean higher revenue, or that they are always the cure for what ever ails the economy.
11.3.2007 11:56am
JosephSlater (mail):
What anomie said and kinda also what David Bernstein said and what pireader said. The problem is crazy academics thinking crazy things because they have no real world experience. The problem has been an administration looking for justification for a list of things that could be most charitably described as radical. The buck stops with Bush.
11.3.2007 12:21pm
JosephSlater (mail):
Oops, meant to say the problem ISN'T crazy academics thinking crazy things.
11.3.2007 12:22pm
David M. Nieporent (www):
The Bush administration specifically noted the ties between Sadaam and the terrorist attacks repeatedly,
True, if by "repeatedly" you mean "never."
and there never was any evidence that he had any nuclear weapons programs.
And also true, if by "never" you mean you haven't read a newspaper since 1980.
11.3.2007 12:31pm
FC:
Katyal's "Yoo's secret stranglehold" idea was not the first crazy theory to emerge from the legal academy...
11.3.2007 1:10pm
Thomas_Holsinger:
Lawyers and judges have the same problem - an overpowering tendency to think that the judicial system is the real world.
11.3.2007 1:35pm
LarrySheldon (mail):
"Lawyers and judges have the same problem - an overpowering tendency to think that the judicial system is the real world."

And that The New Republic is a reliable source of information.

Or am I mistaken about who Scott Beauchamp works for?
11.3.2007 4:36pm
Pluribus (mail):
Thomas_Holsinger wrote:

Lawyers and judges have the same problem - an overpowering tendency to think that the judicial system is the real world.

If you have ever represented a real client in a real case in a real court and had to face a real decision affecting the real client's real life, real liberty, or real property, you wouldn't have any doubt that the judicial system is the real world. No, it's not a reality show, or a novel by John Grisham, it's the real thing.
11.3.2007 5:43pm
Moneyrunner43 (www):
David N.

Thanks for jumping in. I'm persuaded that the reasons the Left believes things that are not true is because they don't go to original sources. They read articles by opinion writers in the NY Times or Washington Post and assume that they are true. They want them to be true, so they don't do any fact checking.

It's how urban legends are created. Here's what I said a year ago. I was referencing the media elite, but it applies equally well to a whole host of people on the Left:


Keep in mind that the people who inhabit this bubble don't get out much. They inhabit their own world because of where they live and what they read. Unless they read the blogs or listen to talk radio, they don't inhabit the two worlds that "real" people inhabit: the ones in fly-over-country. And they don't read blogs and don't listen to Rush because the blogs are too new and Rush is a "hatemonger" so why listen to him?
You and I see two worlds: the world in our neighborhoods and streets where 90% of America lives and the other world inhabited by the denizens of the media bubble. We know the second world because we read what they write and watch their TV productions. But can you imagine living in their world where there is only one "correct" view?
That's why reality does not penetrate. They see the loss of circulation and ratings but don't know how to deal with it. They are the "enlightened" and to adjust their views would be to go over to the dark side. So as their readership and viewer-ship shrinks they become more and more shrill. Like the man in a foreign country who thinks that he can communicate better with the natives by talking louder.
11.3.2007 7:25pm
Thomas_Holsinger:
Pluribus,

We're talking about war, not crime. That's my point.

The judicial system is a means of avoiding a domestic state of war. It is not a substitute for waging war against foreign enemies, but too many judges and lawyers think it is.
11.3.2007 8:40pm
cboldt (mail):
-- I'm persuaded that the reasons the Left believes things that are not true is because they don't go to original sources. They read articles by opinion writers in the NY Times or Washington Post and assume that they are true. They want them to be true, so they don't do any fact checking. --

.

People on the right are guilty of exactly the same thing, and in about the same proportion.

.

In most of the arguments, when it comes to a significant issue (e.g., immigration, interrogation methods, Iraq), both sides use incomplete, incorrect, or misstated, cherry-picked, and/or misrepresented "facts" to make their point. I've seen plenty of sophists on both sides too.

.

There is darn little "objective," independent analysis on the internet, with citations to supporting basic fact and relevant legal references.
11.4.2007 9:02am
Pluribus (mail):
Thomas_Holsinger wrote:

Lawyers and judges have the same problem - an overpowering tendency to think that the judicial system is the real world.

I answered:

If you have ever represented a real client in a real case in a real court and had to face a real decision affecting the real client's real life, real liberty, or real property, you wouldn't have any doubt that the judicial system is the real world. No, it's not a reality show, or a novel by John Grisham, it's the real thing.

Holsinger then wrote:

Pluribus, We're talking about war, not crime. That's my point. The judicial system is a means of avoiding a domestic state of war. It is not a substitute for waging war against foreign enemies, but too many judges and lawyers think it is.

I presume you have heard about war crimes. And war crimes trials. If your point is that war is subject to no law, that crimes cannot be committed in war, that there are no Geneva Conventions, no treaties to which the U.S. is a party, and that men like Milosevic and Saddam can't be made to answer in the judicial system for their crimes, I strongly disagree. It's glib to dismiss the law. The international community has not done so. The U.S. Senate, ratifying treaties, has not done so. Nor has the U.S. Supreme Court.
11.4.2007 10:34am
Thomas_Holsinger:
Pluribus,

The criminal justice system exists to balance DOMESTIC conflicts between order and liberty. That conflict is utterly irrelevant to war against foreigners, yet judges and lawyers persist in trying apply criminal justice concepts to war.

Furthermore this is not a war between nation-states. This is a war between civilization and utter savages. The only purpose of law in such a conflict is to maintain the good order and discipline of our own forces.

Note two things concerning official, recorded vote, acts of Congress in these matters. The criminalization of torture applies to our armed forces, not our secret agencies. And Congress REFUSED to criminalize waterboarding per se. There was an up or down vote on that specific issue and the majority flat out refused to prohibit water-boarding by our secret agencies.

And a third thing - your opinions concerning "war crimes" are (a) nebulous, (b) erroneous and (c) founded in emotion rather than law, logic or reason.
11.4.2007 2:50pm
Michael B (mail):
Slate's three excerpts from Goldsmith's book begin here (in an accompanying video there's a revealing glimpse of both Dahlia Lithwick's and Goldsmith's contrasting views of both the world and the administration). Jeffrey Rosen's review, here.

Excerpt from Rosen's review:

The heroes of Goldsmith's book — his historical models of presidential leadership in wartime — are Presidents Lincoln and Franklin D. Roosevelt. Both of them, as Arthur Schlesinger noted in his essay "War and the Constitution," "were lawyers who, while duly respecting their profession, regarded law as secondary to political leadership." In Goldsmith's view, an indifference to the political process has ultimately made Bush a less effective wartime leader than his greatest predecessors. Surprisingly, Bush, who is not a lawyer, allowed far more legalistic positions in the war on terror to be adopted in his name, without bothering to try to persuade Congress and the public that his positions were correct. "I don't know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making," Goldsmith told me. "It's hard to know how he would know."

The Bush administration's legalistic "go-it-alone approach," Goldsmith suggests, is the antithesis of Lincoln and Roosevelt's willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. "The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense," Goldsmith concludes in his book. "This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise."

That, perhaps, is the most critical and fundamental criticism that can be leveled against the current administration's approach. Goldsmith levels a trenchant critique, but 1) openly acknowledges the full gravity of the current war against Islamofascism and terror (again, the contrast with Lithwick is subtly revealing) and 2) likewise eschews any indulgence in demonizations or other simplistic caricatures of the Pres. or anyone else in the administration. Iow, Goldsmith's is a sound and responsible voice, while forwarding pointed and trenchant criticisms, while the Lithwicks of the world remain, seemingly and all too often, willfully obtuse when a reductionist caricature of the current administration needs to be sacrificed if a more realistic and sound judgement is to be presented.
11.4.2007 4:04pm
Pluribus (mail):
Thomas_Holsinger wrote:


The criminal justice system exists to balance DOMESTIC conflicts between order and liberty. That conflict is utterly irrelevant to war against foreigners, yet judges and lawyers persist in trying apply criminal justice concepts to war.


So you think there is no international law? No treaties? No standards for the treatment of prisoners? What was all that ruckus in Nuremberg? Why did they try Milosevic? And Saddam?

This is a war between civilization and utter savages.

I agree. And neither law nor morality permit civilization to act like utter savages.

The only purpose of law in such a conflict is to maintain the good order and discipline of our own forces.

Yes, and when they violate the law, even our own forces are subject to punishment. Americans in Iraq are now being tried for murder. Why? Bedcause they violated the law.
11.4.2007 7:08pm