Published by University of Kansas Press (2012)
Reviewed by Benjamin Kleinerman
Stephen F. Knott’s new book, Rush to Judgment: George W. Bush, the War on Terror, and His Critics, is a powerful and pointed challenge to Bush’s critics, especially those in the academy. Claiming that his critics “applied a relatively recent, ideologically driven understanding of the Constitution and American history in arguing that Bush was out of the norm and therefore one of our worse and perhaps most lawless presidents,” Knott aims to rescue Bush from these charges. While admitting that Bush made his share of mistakes, Knott claims that the judgment of him as uniquely lawless and tyrannical suffers from a profound historical myopia that is especially problematic insofar as it infects academic historians who should know better. Rather than an aberration pursued by a power-hungry President, Knott claims that Bush’s actions in the “war on terror” fall squarely in a long tradition of presidential discretionary action in wartime—some of which have been far more aggressive and lawless than the actions taken by the Bush administration.
In recovering and emphasizing this long tradition of presidential discretion, Knott’s book provides a crucial corrective to the historical myopia that he diagnoses so pointedly. Bush’s willingness to go to great lengths to achieve the nation’s security for which the President is almost uniquely responsible mirrors the actions of other presidents before him and, much to the surprise of some of Obama’s supporters, those of his immediate successor. Once in office, with the responsibility of preserving the nation’s security falling entirely on their head, presidents are understandably motivated to push the envelope in what they are willing to do for the sake of national security. As Madison said immediately after his famous claim that “ambition must be made to counteract ambition,” “the interest of the man must be connected with the constitutional rights of the place.” That is, given that the country will likely blame the president for a national security failure, it is not surprising that Presidents do everything in their power to avoid that blame. Knott’s defense of Bush could not be timelier insofar as Obama’s departures from his campaign promises regarding how he would wield the powers of the presidency have made us reevaluate the very nature of the office. Since Bush had been the only one in office after 9/11, it was much easier to blame the powers of the presidency on the man wielding them. But the constitutional law professor turned president entered the office and continued some of the controversial practices of the Bush administration, i.e. holding some terrorists indefinitely without trial, issuing controversial signing statements, and extending the Patriot Act, in addition to introducing or increasing other controversial practices, i.e. issuing the kill order on the U.S. citizen al-Awlaki (and then killing him), dramatically increasing the numbers of drone attacks into Pakistan, and attacking Libya without congressional authorization. Instead of being surprised when presidents aggressively assert and exercise their powers, we should instead realize that this behavior is written into what one might call the constitutional genome of the office itself.
As Knott admits near the beginning of the book, he is a partisan of the presidency. As a partisan of the presidency, he also advances the argument in the book that Bush’s aggressive assertions of power followed from and were caused by Congress’s misguided tendency to try to micro-manage the presidency. Knott endorses the view, embraced also by Dick Cheney long before he became Vice-President, that Bush inherited not an “imperial presidency” but an “imperiled presidency.” According to this view, the post-Watergate and post-Vietnam Congress went too far in trying to constrain the presidency, burdening it with a series of laws like FISA which unconstitutionally infringe on the President’s constitutional powers. Although I agree with Knott in seeing these sorts of laws as imprudent and counter-productive, I would disagree with him some on the nature of their mistake. Knott seems to suggest that the very attempt to provide a legal framework for the exercise of what might be called the president’s “war power” is a constitutional novelty that does not emerge until the 1970s. If one looks at the historical record, especially the nineteenth century record on these things, I would suggest that this simply is not the case. Previous Congresses did pass laws in these matters. The crucial difference comes in the micro-management of these powers. Previous Congresses passed laws with the understanding that the President, as a constitutionally independent actor, would ultimately exercise his “war powers” as he saw fit. Both impeachment and reelection served as the ultimate check on the President’s independent power. Precisely because the exercise of power was necessarily independent from its legal source, one need not and, in fact, should not micro-manage its exercise. This means, that the president had a reserve of “extra-legal” power independent of Congress’s legal framework. As I have argued in other work, this extra-legal power is both essential to the kind of discretionary presidential activity Knott details in his book but also necessarily questionable. It cannot be understood as simply legal because it exists outside the legal order that it must maintain. The post-Watergate Congress erred in thinking that it could provide for (and exhaust) the full range of the President’s constitutional (but extra-legal) power.
Congress’s attempts to legalize executive discretion follow from a more general trend we have seen develop in the last thirty years. In his conclusion, Knott offers some provocative and important comments about the legalization of politics that has occurred in the last thirty years. He writes: “While referring all questions and problems to the judicial branch, under the vague rubric of ‘the rule of law,’ seems to offer the promise of clarity and incorruptibility, it also offers the end of self-government.” Much of the problem, Knott suggests, is that we have lost our faith in politics, “a messy business, but…an essential component of a truly free society.” I would go further and say that what’s most problematic, for us as a constitutional republic, is that we have lost our faith in constitutional politics. Whereas prior generations allowed constitutional disputes to play themselves out politically, we turn immediately to the courts to provide a bright-line resolution to complicated matters that are inherently unsusceptible to such resolutions. This excess of legalism has necessarily also infected the executive branch. And here is the core of my critique of Knott’s book. Although Knott is right that the discretionary activities of the Bush administration were not unprecedented, he does not sufficiently explore the extent to which some of the legal rationales for those activities were. As Jack Goldsmith suggests in The Terror Presidency, the Bush administration advanced its arguments regarding executive power with something of a “theological” ardor that sometimes even trumped political consequences. In other words, the Bush administration did not simply provide a political justification for its actions by citing the constitutional obligations of the President, it aimed to vouchsafe its actions in the same sort of legalistic manner that Knott rightly criticizes in the conclusion of his book. Granted, given that certain parts of the legal community even raised legal challenges to an unalloyed good like killing bin Laden, one might suggest that the legal opinions emerging from Bush’s OLC are a necessary component of our legalistic age. If it is impossible to justify the powers of the presidency as both absolutely necessary and outside the ordinary rule of law, then perhaps it becomes necessary to advance legal opinions that provide a sure legal foundation for these discretionary activities. But Knott does not make this point. Instead, he suggests seamlessness between Bush’s arguments and those of his predecessors in the office.
To see the difference between Bush and some of his predecessors, one might consider Knott’s discussion of Kennedy’s involvement in the Bay of Pigs. Knott argues persuasively that not only did Kennedy know about the attempt on Castro’s life in the Bay of Pigs but that he was exerting the primary pressure on the CIA to kill Castro. But, even if that is true, it is perhaps just as important that Kennedy consistently maintained plausible deniability about his involvement with this plot. He did not announce to the world that he planned to kill Castro. Such covert activities are covert precisely because they should not be announced to the world. By contrast, when George W. Bush captured Khalid Sheikh Mohammed he let the world know and then “disappeared” him so that they could gather information from him. Knott’s interesting and compelling history of past presidents also shows, although Knott does not emphasize this, the extent to which they remained in principle apart from the shadowy activities in which they engaged. For instance, although Knott shows interesting evidence that Abraham Lincoln may have been involved in tampering with some 1863 gubernatorial elections, he cannot show any evidence that Lincoln announced a principle by which he could engage in such tampering. George W. Bush, by contrast to his predecessors, insisted on announcing the absolute legality of his discretionary activities in a manner that, I would suggest, is problematic in a government of law. That being said, it is also worth considering that this insistence might follow from the excess of legalism that is characteristic of our age. It is also true, as Knott details, that some of Bush’s insistence arose as a reaction to the revelation of certain covert activities that never should have been made public. In an age when the media fails properly to distinguish between revealing covert activities that should be made public and those that should not, the President may be compelled to justify certain things that it would be better were he not to provide a justification.
Knott’s vindication of George W. Bush from his critics succeeds even as it also points to the profound dysfunction that characterizes our politics. This dysfunction is even more profound once we see the one ground on which Knott does not vindicate Bush. Bush was unique in insisting on the legality of presidential discretion with such “theological” zeal; but that insistence itself may have stemmed from both our excessive legalism and our own “theological” insistence that all things should be both public and legal.
(Benjamin A. Kleinerman, assistant professor in Constitutional Democracy at Michigan State University, is currently Garwood Visiting Fellow in the James Madison Program in American Ideals and Institutions, Princeton University.)