On Professor Goldsmith's New Republic article on President Obama approach to fighting terrorism

The Goldsmith Variations. By Scott Johnson
Powerline Blog, May 20, 2009 at 5:29 AM

Professor Jack Goldsmith's New Republic article gives President Obama high marks for his approach to fighting terrorism, in part because he appears to be continuing controversial policies established by President Bush. Paul Mirengoff commented on Goldsmith's article here. Professor Goldsmith is a preeminent authority with on-the-job professional experience in the issues he addresses in the article.

Several of the policies considered by Professor Goldsmith are policies for which Obama condemned the Bush administration (and for which he continues to condemn it). I deduce from Professor Goldsmith's account that the Democratic critique of Bush administration national security policies has been long on partisanship and short on principle. Professor Goldsmith, however, commends Obama with respect to his superior diplomacy in continuing these policies.

Professor Goldsmith does not indict Obama for his partisan treatment of the issues. According to Professor Goldsmith, Obama is merely finding governing harder than campaigning. That is certainly one way of putting it. Professor Goldsmith explains Obama's actions by reference to the fact "that many of the Bush policies reflect longstanding executive branch positions." One might think that this basic fact places Obama's "campaigning" in a poor light, along with his continuing criticism of the Bush administration policies he is following.

Goldsmith criticizes the expansive rhetoric of the Bush administration on executive power based on Justice Department opinions, presidential signing statements and Vice President Cheney's express desire to "leave the presidency stronger than we found it." He finds this rhetoric unprecedented. If this expansive rhetoric was the keystone of Bush administration policies, one might think that Professor Goldsmith could have quoted a full sentence from some speech given by President Bush in the course of his eight years in office.

Here Goldsmith compares Obama favorably to Lincoln and Roosevelt, by contrast with President Bush:

[The Obama administration] seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

Finally, the Obama administration is following the Lincoln-Roosevelt approach to rhetoric and public symbols. The president talks frequently about the importance of adhering to constitutional values, he worries publicly about terrorism policies going too far, and he suggests that he is looking for ways to keep them in check. He has said not a word about presidential prerogative in national security or the importance of expanding his power. Closing GTMO--especially in the face of loud opposition--is an important symbol of the new president's commitment to the rule of law even if the detainees ultimately receive no greater rights. The small restrictions his administration has placed on itself as compared to the late Bush practices are public indications of restraint, especially when contrasted with the early Bush insistence on maximum presidential flexibility at all costs. They are yet more significant because the Obama administration is embracing them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny.

Is this contrast between Bush on the one hand, and Lincoln and Roosevelt on the other hand, fair? Does Bush compare unfavorably to them with respect to sensitivity to civil liberties in wartime? (As for public rhetoric, no one, including Obama, can compare with Lincoln.)

The constitutional powers of the commander-in-chief in time of war are critical to the system established by the framers. Lincoln's analysis and exercise of the commander-in-chief's war powers during the Civil War both serve to illuminate those powers and to place Bush's actions in a relevant context.

Lincoln's primary aim as commander-in-chief was of course the preservation of the Union -- the restoration of democracy and the rule of law among the seceding states. He meant to demonstrate that "among free men, there can be no successful appeal from the ballot to the bullet; and that those who take such appeal are sure to lose their case, and pay the cost."
Indeed, as Professor Daniel Farber recalls in Lincoln's Constitution, Lincoln originally called up the militia in the name of the rule of law because "the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed" by "combinations too powerful to be suppressed by the ordinary course of judicial proceedings."

In subduing the Confederacy, Lincoln took his bearings by his constitutional duty to "preserve, protect and defend the Constitution." Though this is the subject for another day, it should be noted that, given the Supreme Court's handiwork in the Dred Scott case, he was not an advocate of judicial supremacy. As president and commander-in-chief, he suspended habeas corpus, used martial law, instituted military trials, and exercised power to the limits of his constitutional authority in a manner that suggests the loose nature of those limits when confronted by necessity.

As Farber notes, "several Civil War actions taken under military authority impinged on freedom of speech." Perhaps best known is the case of former Ohio Congressman Clement Vallandingham. As commanding general of the Department of Ohio, Ambrose Burnside prohibited "the habit of declaring sympathies for the enemy." In the spring of 1863, Burnside had Vallandingham arrested for violating the order in a speech calling the war "wicked, cruel and unnecessary."

As Farber recounts, "he called upon his audience to [use the ballot box to] hurl 'King Lincoln' from his throne." The echoes of Vallandingham in the Democrats' recurrent gibes at President Bush are surely inadvertent. The Peace Democrats of 1863 nevertheless sound remarkably like the contemporary Democrats who have castigated President Bush.

In any event, the military commission found Vallandingham guilty of violating Burnside's General Order No. 38 and ordered him confined until the war ended. The ensuing controversy elicited Lincoln's famous letter to Erastus Corning defending the policy of military arrests in the name of public necessity. Lincoln ultimately resolved the controversy over Vallandingham's conviction and confinement by banishing him to Confederate territory (from which he escaped to Canada). Perhaps Lincoln's letter provides an example of the superior rhetorical dexterity that Professor Goldsmith attributes to Lincoln, but he also had more to justify than President Bush ever did.

From the case of Vallandingham, Farber moves on to consider the case of the New York World. The case of the World combines elements of the 2004 presidential campaign and the role played by another New York newspaper of our own day in a way that gives it a surprisingly contemporary feel. As Farber tells it:

Two journalists forged an Associated Press story about a bogus presidential call for drafting four hundred thousand men. (As a signal of desperation by the president, this "news" was supposed to drive up the price of gold, allowing the two men to make a quick profit.) The World fell for the stunt and published the story. Suspecting a Confederate plot, Lincoln ordered the arrest of the editors and publishers, as well as the seizure of the premises. This put the newspaper out of business until the order was countermanded.

So much for Lincoln. What about Franklin Roosevelt? Even before World War II, Franklin Roosevelt was concerned about domestic subversion. In Roosevelt's Secret War: FDR and World War II Espionage, Joseph Persico writes that "[f]ew leaders have been better suited by nature and temperament for the anomalies of secret warfare than FDR." He quotes Roosevelt: "You know that I am a juggler, and I never let my right hand know what my left hand does." As Persico demonstrates (pages 34-36), President Roosevelt's enthusiasm for intelligence extended to prewar domestic wiretapping of "diplomats, journalists, labor leaders and political activists" in the face of newly enacted statutory bans on wiretapping that had been upheld by the Supreme Court.

"I have agreed with the broad purpose of the Supreme Court relating to wiretapping in investigations," Roosevelt instructed J. Edgar Hoover. "However, I am persuaded that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation." Persico summarizes: "In short, never mind Congress, the Supreme Court, or the attorney general's qualms. The nation was in peril." (Persico's reference to Roosevelt's attorney general is of course to future Supreme Court Justice Robert H. Jackson.) Roosevelt's wiretapping program was not blessed by congressional consultation. Neither rhetoric nor public symbols were invoked to support it.

During the war, President Roosevelt did not seem particularly moved by constitutional limits or self-imposed restraint. To take just one example, consider the detention of Japanese American citizens that took place on his order. It took place under the authority of Executive Order 9066 without let or hindrance by the Supreme Court in Hirabayashi and Korematsu . Was this because of Roosevelt's brilliant public tact? I don't think so.

One might well ask whether President Bush ever took any action remotely comparable to these undertaken by Lincoln or Roosevelt at the margin of their authority. Again, I don't think so. Lincoln certainly did not escape the severe censure of his Democratic opponents. Indeed, the vituperation heaped on Bush during his eight years in office by Obama et al. might be roughly comparable to that heaped on Lincoln during his tenure in office. At least to me, Professor Goldsmith's analysis seems lacking in an element of fairness.

Professor Goldsmith's invocation of Franklin Roosevelt in this context is instructive, if not exactly as he intends. It is difficult to imagine Barack Obama wielding the powers of his office against America's foreign enemies with anything like the enthusiasm and ferocity of Roosevelt or, for that matter, Harry Truman, whom Obama seems more apt to apologize for than to emulate.

(On Lincoln, this post closely follows Farber's book at pages 170-173 and 176. For more, see Professor Michael Paulsen's brilliant review of Farber's book in the spring 2004 issue of the University of Chicago Law Review, Mark Neely's Pulitzer Prize-winning The Fate of Liberty, and William Rehnquist's All the Laws But One.)