Power and Constraint: The Accountable Presidency after 9/11

By Jack Goldsmith, Lawfare Staff
Monday, March 12, 2012, 7:59 AM

I have a new book out today: Power and Constraint: The Accountable Presidency after 9/11.  It argues that constitutional checks and balances deeply constrain the national security presidency, and that these checks and balances are the key to understanding Barack Obama’s continuation of George W. Bush’s counterterrorism policies, as well as the broad national consensus in support of those policies.

The presidency has of course grown in many ways during the first decade of indefinite war against Islamist terrorists and other modern threats.  Much less noticed, but just as important, is a revolution in wartime presidential accountability that has shaped and legitimated the growth in presidential power.  Congress and courts pushed back harder against the presidency than in previous wars, in the process vetting, altering and ultimately blessing his core counterterrorism policies.  These traditional institutions received crucial support from something new and remarkable: giant distributed networks of lawyers, investigators, and auditors, inside and outside the executive branch.  In conjunction with the press, these forces watched the presidency closely and enforced legal and political constraints against it.  By 2009, almost all of George W. Bush’s counterterrorism policies had been altered and blessed in ways that Barack Obama – seized of the responsibilities of the presidency – found impossible to resist.  The same forces that pushed against Bush from the left also pushed against Obama from the right and prevented him from closing GTMO and trying GTMO terrorists in civilian courts.  Two presidents with starkly different views about executive power and proper counterterrorism tactics ended up in about the same place because constitutional forces more powerful than the aims of the presidents were at work.  In telling this story about modern presidential accountability, I draw on over 80 interviews with political, military, and intelligence officials in the Bush and Obama administrations, and with key representatives in the modern accountability regime for the presidency, including members of Congress and their staffs, federal judges, government lawyers and watchdogs, national security journalists and their editors, and human rights activists.

If you read the book I hope you like it.