Jack Goldsmith's Op-Ed, Counterterrorism, & Campaign Politics

By Matthew Waxman
Friday, April 27, 2012, 10:06 AM

I’m very excited to join the Lawfare team. As a first post, I’d draw readers’ attention to Jack’s Washington Post op-ed, in which he discusses how candidate Romney might to try to differentiate himself from President Obama on counterterrorism policy. Although I differ with Jack on some things in here, especially important is his point that “The perception that the president is constrained by law is vital to the success of counterterrorism policies in courts and cooperation on counterterrorism issues with allies.” Along similar lines I’d like to emphasize a few points.

First, I agree with Jack’s caution that Romney should not press his perceived advantages too far, and I’d add another reason. If Romney wins, he’s going to find his operational flexibility already heavily constrained by a combination of politics, legal restrictions (including Guantanamo legislation passed by Congress during the Obama administration), diplomatic necessities, and other factors. He should be careful not to unnecessarily and prematurely paint himself into corners on how to handle, for example, captured al Qaida figures. As President Obama has learned, some pragmatic flexibility to choose among legal avenues is necessary to deal with the complexities of these cases. In particular, a Romney administration will also find (as the Bush Administration showed and many Obama critics from the right have forgotten) how valuable to an aggressive counterterrorism strategy the option of civilian criminal prosecutions can be in certain cases. John Bellinger and I emphasized these points in our critique of the most recent National Defense Authorization Act.

Second, Jack correctly implies that regardless of who wins the presidency in 2012, the counterterrorism policies and practices in the next term will look a lot like they do now. A second-term Obama administration will continue its approach of flexible pragmatism, having learned that operational and political constraints rule out radical reforms, but having shown that acknowledging and articulating legal limits strengthens counter-terrorism programs by making them less vulnerable to legal and political challenges and reducing friction with our allies.

Even if it wants to, a Republican administration will find it difficult to roll back Obama Administration reforms in the other direction, though, especially those that reflect legal lines drawn by the Justice Department in recent years. For example, as Jack notes, candidate Romney might want to draw distinctions from Obama by refusing to take waterboarding off the table. But even supposing there were operational intelligence advantage to doing so, at this point a President Romney would find it hard to put it back on the table, in the sense of actually getting the CIA or another agency to consider doing it. Putting points one and two together, a Romney administration might find itself incurring damage of breaking with the Obama administration’s legal constraints without actually even purchasing much true operational latitude.