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Whether it’s in the conduct of our discussions here on this blog or in the “debate” as a whole as it is carried out all across the country, it is valuable every now and then to remember (or try to) that these contests we have are supposed to be about substantive matters after all. There is more going on (hopefully) than a contest of insults between two camps with mutually exclusive (and destructive) understandings of what this country even is. There is more to this contest than who wins or loses it.
In my book that is the hope anyway and a book I’ve recently come across gives me reason (or at least an argument) for hope.
Jack Goldsmith’s “Power and Constraint, The Accountable Presidency After 9/11″ —besides being about what it’s title plainly says it is about— is also a book I would describe as an argument on behalf of argument. Without really taking a side to speak of, Goldsmith looks back across all the contentious debate we’ve been having over the last decade (and actually much longer than that) about the powers of the presidency in the context of a war on terror —and what he argues is that we —not one side or another in the debate but all of us in the concerted effort of having at the debate— have actually struck something of a remarkable and apt balance and in just about the way we are supposed to.
There’s this from the publisher’s website:
Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed—endless detentions, military commissions, state secrets, broad surveillance, and more—are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints—enforced by congressional committees, government lawyers, courts, and the media—that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable.
These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.
It may not seem like we ever arrived upon a balance or consensus on this subject —certainly not a comfortable one. You can look at the arguments we’ve had here recently about Tarek Mehanna as example. But maybe that is something we have to learn about this system of ours with its checks and balances. That it never really does arrive, that it isn’t about some set of static truisms to be defended by conservatives from the attacks of liberals—or vice versa, but rather that as we face the challenge of responsible exercise of power we are to hold our truths in constant tension —all of us. All our contentious consideration of these questions is supposed to have purpose.
For those who might have their dander raised, let me assure that Goldsmith is no particular fan or apologist for President Obama. He served in the Bush administration’s Office of Legal Counsel and he goes into some detail cataloguing the policies Obama criticized as a candidate and went on to continue in his administration. He might even betray a certain amount of pleasure in observing how the President’s vow to close Guantanamo Bay proved beyond his political powers to realize. But his point is about something beyond the partisanship. There is something good in the fact that neither George Bush or Barack Obama have been able to see GITMO disposed in just the way they wanted. We can continue to argue that question today, even here —the point is that as a matter of fact we are supposed to.
