Book Review of Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11 (2012)

American Journal of International Law (Summer 2013)

12 Pages Posted: 10 Aug 2013

See all articles by Daniel Bodansky

Daniel Bodansky

Arizona State University Sandra Day O'Connor College of Law

Date Written: July 1, 2013

Abstract

Like all of Goldsmith’s work, Power and Constraint offers a powerful challenge to the conventional thinking that we live in an era of unconstrained presidential power. But just as the conventional critique of the terror presidency goes too far in sounding "the death knell for the separation of powers," Power and Constraint swings too far the other way in its claims about presidential accountability. As usual, the truth lies somewhere in between. Goldsmith argues that the Bush Administration's policies encountered significant pushback from a wide variety of actors both within and outside the government, including inspectors general, military and national security lawyers, the press, and human rights attorneys. The result was a rethinking, recalibration, and in some cases revision of the Bush Administration's counter-terrorism policies, which have become the "new normal," largely followed by the Obama Administration. Paradoxically, the constraints on the Presidency enhanced its power by endowing it with greater legitimacy. In reaching this conclusion, Goldsmith sees law and legitimacy as much more consequential than in his early book, The Limits of International Law, co-authored with Eric Posner.

Power and Constraint's analysis of what Goldsmith calls "distributed checks and balances" is largely convincing, subject to two caveats. First, his conclusion about the "accountable Presidency" is not fully convincing because he evaluates accountability almost exclusively in prospective rather than retrospective terms, and does not consider the question of accountability to the victims of abuse. Second, his explanation for the push-back against the Bush Administration's policies focuses largely on procedural factors, such as the Bush Administration's unilateralism and expansive rhetoric. But the bigger problems with the Bush Administration's policies were substantive rather than procedural -- for example, its use of enhanced interrogation techniques such as waterboarding and its refusal to apply the Geneva Conventions to the conflict in Afghanistan. Nevertheless, Goldsmith has done a valuable service in providing a more complete and nuanced analysis of the various checks on presidential power, and reminds us of the power of law and legitimacy within, if not among, nations.

Keywords: 9/11, Foreign relations, War on terrorism, Accountability, Presidential powers

JEL Classification: H11, K19

Suggested Citation

Bodansky, Daniel, Book Review of Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11 (2012) (July 1, 2013). American Journal of International Law (Summer 2013). Available at SSRN: https://ssrn.com/abstract=2296192

Daniel Bodansky (Contact Author)

Arizona State University Sandra Day O'Connor College of Law ( email )

111 E Taylor St
Phoenix, AZ 85004
United States

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