Madison may have chided Hamilton in print (Hamilton had argued quite the opposite in the Federalist Papers) but few people are taking notice these days. The conservative Federalist Society continues to promote an originalist argument for the idea of the "unitary executive" and the Bush administration has perpetually struggled to augment its powers and exert executive privilege whenever questioned.
Nowhere is this more disconcerting than in the area of civil liberties. In addition to warrantless wire tapping and the blatant disregard for habeas corpus, the administration has on several occasions suggested that federal officers can deploy torture techniques in violation of federal law.
In Jack Goldsmith's new book, reviewed here by David Cole for the New York Review of Books,
we catch a glimpse of the cosseted world of the Bush and Cheney administration, where dissent (even from conservatives) was not tolerated and lawyers relentlessly worked to shield the President's men from the rule of law. Goldsmith found himself often on the wrong side of the administration's policies. But he occupied a privileged position being head of the Office of Legal Counsel, which provided interpretations of federal law for the executive branch, and thus could not be ignored. When Goldsmith suggested, for instance, that all Iraqis were protected by the Geneva Conventions, the administration had to take note. And, unlike other critics of the Bush administration, Goldstein's account is all the more compelling because it comes from a true believer. As David Cole writes:
Goldsmith's account is credible not only because he was an insider, but because he shares so many of Addington's views. Like his classmate at Yale Law School and onetime friend John Yoo, another Office of Legal Counsel lawyer who worked closely with Addington to justify the administration's most extreme assertions of unilateral power, Goldsmith made his reputation as a scholar with articles highly skeptical of international law, human rights, and international institutions. While serving in the legal counsel office at the Department of Defense, he wrote a memo for Donald Rumsfeld dismissing international law as a tool of the weak. He accused other nations and nongovernmental organizations of creating a "web of international laws and judicial institutions that today threatens USG interests," and recommended that the United States "confront...the threat." And Goldsmith is equally critical of domestic legal constraints; in The Terror Presidency he characterizes post-Watergate legal limits on executive power—the very limits Addington and Cheney so resented—as "one of the Bush administration's biggest obstacles in responding to the 9/11 attacks."Cole's review is elegantly written, informative, and critically beautiful. And on a subject we need to pay more attention to during our coming presidential elections.
