One More Thing on Goldsmith & Waxman

There is not much to add to my colleague Shalev Roisman’s response to Jack Goldsmith and Matthew Waxman’s essay in The New Republic arguing that it is President Obama, and not President Bush, that is the “master of unilateral war.” Shalev nicely exposes the flaws in this argument, explaining how the examples of Obama’s unilateralism proffered by the pair of former Bush administration lawyers do not quite add up to the conclusion their provocative headline promises. And Shalev is also clear in explaining that his rebuttal to Goldsmith and Waxman is not an endorsement of the shifting, dubious theories and arguments of the Obama administration concerning its authority to engage in armed conflict. Frankly, choosing sides in this “debate” is a sucker’s bet.

But I’d like to add one point—a riff on Shalev’s comment, made almost in passing, that Goldsmith and Waxman’s focus on “the context of initiating war,” rather than the context of war powers more generally, badly distorts the comparison they wish to make.

In his recent criticisms of President Obama’s approach to the “initiation of war,” Goldsmith—in line with his work over the past half-decade—has persuasively underscored the important benefits to legal and political legitimacy, and to separation-of-powers precedent, provided by congressional affirmation of presidential exercises of war power. To be clear, I generally concur with Goldsmith’s ongoing condemnation of the Obama administration’s approach to these issues, including to the initiation of armed conflict.

But to make such a broad claim by invoking a contrast between Presidents Obama and Bush, and then narrowing the contours of the comparison to one discrete question that would be merely informative, and not decisive, in the overall assessment, is misleading. For instance, Goldsmith and Waxman allege that President Obama’s recent double-headed–hydra theorizing concerning ISIS’s affiliation with al-Qaeda constitutes the “most expansive interpretation” of the 2001 Authorization for the Use of Military Force that we’ve seen. If viewed only in terms of the “initiation” of war, perhaps that is a defensible claim. (Marty Lederman has suggested that the issue is not as clear cut as it might first appear— in particular, that it might depend on undisclosed facts.) Seen in a broader context, however, I very much doubt it would hold up.

Take, as just one example, the Bush administration’s conclusion, in May 2004, that the 2001 AUMF silently overrode the Foreign Intelligence Surveillance Act—a statute passed in 1978 and reauthorized umpteen times since—and permitted the executive branch to conduct warrantless surveillance inside the United States. The administration, under Goldsmith’s own signature, determined that this was true even despite congressional amendments to (and re-endorsement of) FISA that post-dated passage of the AUMF and that suggested no such exception. (Indeed, Goldsmith and Curt Bradley specifically championed the potential breadth of the AUMF in a 2005 Harvard Law Review article.) Yes, this interpretation does not implicate the “initiation” of war—but I would argue that the consequences of its logic are far more dangerous, as matters of both precedent and democratic legitimacy, than even President Obama’s weak and strained argument concerning the AUMF and ISIS.

Lest one criticize this example as selective, bear in mind that this memorandum is actually one of the less aggressive examples of Bush administration lawyers underwriting (in Goldsmith and Waxman’s own anodyne words) “broad presidential prerogatives in other military contexts.” And the President’s Surveillance Program that the May 2004 memo almost wholly reauthorized was just one of the Bush administration’s extraordinary profiles in war-related unilateralism. To briefly run through the macabre litany, there were also secret renditions; torture; executive-branch–ordered military commissions; detentions of U.S. citizens (and one non-citizen) on U.S. soil without due process; the defense of Guantánamo as a Constitution-free zone; and a host of other contexts in which the President’s unilateral “war powers” were argued to trump ordinary statutory restrictions. Needless to say, the Bush administration was not exactly solicitous of Congress’s views—or even its right to have a view—on those matters. And while the latter years of the Bush administration—thanks in no small part to Goldsmith—saw the withdrawal of the government’s most extreme theories of executive war powers, those theories are still necessary to any fair comparison of the Bush administration’s overall approach to President Obama’s.

As one critic has written of the Bush era:

[T]he President now has a very broad view of his unilateral war powers; . . . formal congressional approval is not a priority . . . ; the White House doesn’t want to expend (or doesn’t have) the resources that seeking and winning congressional approval would require; it doesn’t want to suffer through the formal national debate; and it fears it might lose the debate (either outright, or with a limitation on presidential power), which would be politically and legally humiliating. None of these are good reasons from a constitutional perspective, and in light of the costs of unilateralism. And the White House is mistaken to think that informal briefings to congressional leaders are a substitute, even a near-substitute, for formal public congressional debate and authorization. Such secret ex ante deliberations lack constitutional significance, and they won’t help one bit politically once things go contrary to plan, as they always do.

I’m kidding, of course—that critic was Jack Goldsmith, two months ago, talking about President Obama’s new excursions in the Middle East.

By narrowing the terms of the presidential comparison to the initiation of war to the exclusion of its conduct, Goldsmith and Waxman are undermining the force of their analysis with an effort that has the effect—if not the intent—of casting the prior administration’s history in a more favorable (and, arguably, partisan) light. And Goldsmith and Waxman’s resort to criticisms concerning President Obama’s “failure of leadership”—by now, an almost quintessential partisan cudgel from the right—do not help to dispel this perception.

These elements greatly detract from Goldsmith and Waxman’s central, salient point: Because of the promising rhetoric and partisan cover under which President Obama’s management of the armed conflict with al-Qaeda have operated, Obama’s precedents “will be especially credible, and thus especially tempting, to future administrations,” and they may well “constitute a remarkable legacy of expanded presidential power to use military force.” That argument is forceful and sound in its own right. But if the Obama precedents ultimately carry more historical weight than the Bush ones, it is only because Bush’s actions were so extreme that history has already left them for dead. 

About the Author(s)

Brett Max Kaufman

Staff Attorney in the ACLU's Center for Democracy Follow him on Twitter (@brettmaxkaufman).