The truth, as argued by Jack Goldsmith in his important memoir, The Terror Presidency, is very different. It was not the Bush administration that departed from past legal practice. It is the law that has changed, and the culture that produces that law. Since the mid-1960s, the ambition and reach of American law has bulged and thickened and intertwined like jungle plants overtaking an abandoned village. A half century ago, almost literally nobody would have imagined that American law could possibly govern a fight on a foreign battlefield between an American soldier and an enemy that belonged to no state and had signed no treaties. Goldsmith quotes a 1942 editorial from The Nation (the Nation!) ridiculing the idea that soldiers might ever have to carry judicial orders in their cartridge boxes.

But of course what was once a comical absurdity has now become a habit of mind so engrained that few can remember that we ever thought otherwise.

It was only in the Carter administration that foreign intelligence-gathering was subject to any judicial review.

Not until 1996 did commission of a war crime against a non-American became prosecutable in an American civilian court.

And before 9/11 human rights professionals and national security experts would all have agreed, sadly or happily as the case may be, that foreign terrorists lacked any rights at all under the Geneva convention.

When critics accuse the Bush administration of lawlessness, they are endorsing an unprecedented and ambitious extension of law and judicial power. “When the cannon speaks, the law is silent,” is an ancient legal maxim, and one accepted by American courts from the founding of the republic until the middle 1970s. Perhaps that rule has changed. If so, we should at least retain enough memory to remember the recentness of change. If authors like Mayer want to invoke the sweep of American history, they would do better to say

 

[T]he Bush administration’s extralegal counterterrorism program presented the most dramatic, sustained, and radical challenge to post-1970 conceptions of the rule of law since … the Clinton administration.

But even that statement would be overstrong.
In Angler, Barton Gellman offers a more accurate, astute, and bitterly ironic criticism of the Bush administration’s counter-terrorism efforts. Those efforts, Gellman argues, were crippled not by the administration’s lawlessness, but rather by an excessive and argumentative legalism.

This is the case argued by Goldsmith and (in detail sometimes painful to read) by Barton Gellman’s Angler.
In their telling, Vice President Cheney and his legal adviser David Addington were preoccupied at least as much by their determination to restore presidential war-making power to its 1861-1973 breadth as by the imperatives of counter-terrorism.

On issue after issue where congressional cooperation was available, it was rebuffed until too late. Because these men believed that congressional cooperation was not needed, they decided it was not wanted.

It should be said at once that Cheney and Addington almost certainly had the better of the argument. You don’t have to go as far as my friend and AEI colleague John Yoo (who contends that the American president inherited the prerogative powers of the British Crown in all matters of war and peace) to notice that Bush used no power that had not been previously used by Lincoln, Wilson, Roosevelt, Truman, Johnson and Nixon. (Or, extending the argument further back in time, to John Adams – the obsessive constitutionalist who also became the first president to fight an “undeclared” war, the 1798 naval war with France.)

Indeed, the single most disturbing aspect of the Bush administration’s war-making, resulted from this very concern with law. The harsh interrogations of prisoners like Khalid Sheikh Muhammad were directed from the very top of the administration, involving the president and vice president in precise consideration of what techniques of coercion and deception constituted “torture” and what did not.

There’s nothing new in American troops using harsh and violent methods against captured enemies. I’ve written at length about Max Hastings’ excellent books on World War II, and his narratives are full of such stories.
Here’s from p. 212 of Overlord:

Lindley Higgins of the U.S. 4th [Division] saw a lieutenant shout impatiently to a soldier moving off with a prisoner: “You going to take that man to the rear?”, and simply pull out his pistol to shoot the German in the head.

That’s indubitably a war crime. In 1944, it was not prosecutable in civilian court. Today it is. And precisely in order to protect American soldiers and spies from such charges, the Bush administration engaged in the ugly exercise of delineating precisely what was permitted and what was not.

Here’s the real “never before” of the 9/11 war: Except for the air war against Serbia over Kosovo, never before had Americans gone to war with the threat of after-the-fact prosecution overhanging every American who bore arms against the enemy.

Here’s Jack Goldsmith again, writing in The Terror Presidency, (sentences gathered from pp. 64- 68):

In February 2002, [the Office of Legal Counsel] gave the Department of Defense a thirty-page legal opinion titled “Potential Legal Constraints Applicable to Interrogations of Persons Captured by US Armed Forces in Afghanistan. The memorandum sounds like an ominous reference to aggressive interrogations. But in fact it was a detailed analysis of the complex ways that the famous Miranda rule (“you have the right to remain silent”) applied on the battlefield in Afghanistan. 

In addition to constitutional rules, domestic criminal laws had crept into war as well. A famous example can be found in the January 25, 2002, memorandum that White House Counsel [Alberto] Gonzales wrote President Bush to explain why he believed that the Geneva Convention on Prisoners of War … should not apply to the conflict with al Qaeda and the Taliban. Gonzales’s memo has become known for its statement that the war on terrorism “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemies be afforded such things as commissary privileges ….” But its real significance lies in Gonzales’s argument that the President should rule that Geneva does not apply in order to “[s]ubstantially reduce the threat of domestic criminal prosecution under the War Crimes Act.” The War Crimes Act imposes criminal penalties (including the death penalty) for violations of provisions in the [Geneva Convention] …. 

It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for wartime decisions …. because in 1942 neither the law nor the legal culture presented any real threat to aggressive presidential [wartime] action. Between 1942 and the time Gonzales wrote his memorandum, however, law and legal culture have changed radically.

Goldsmith of course is no defender of the Bush administration’s detention policies. Indeed, he was the lawyer who forced many of them to be rescinded.

But he has the perspective to understand what many Bush administration critics refuse to understand. The difference between this war and past wars is not the behavior of the administration. It is the expectations of the administration’s critics – and the legal jeopardy of those entrusted with the nation’s security.  

John Yoo, both in his treatise The Powers of War and Peace and in his memoir War by Other Means, calls for restoring an older understanding.

Goldsmith however notes that the older understanding was supported by a series of conventions, practices, and political accommodations that the Bush administration – and Vice President Cheney in particular – unwisely scorned. Past presidents may have exercised more power than George W. Bush. But they made sure to do so in ways that emphasized their reluctance to do so. They made clear that the power was taken only temporarily, and they ostentatiously sought cooperation with former political opponents. These were political, not legal, precautions. Yet omitting them has proven far more catastrophic than the more strictly legal or constitutional derelictions of Lincoln, Wilson, and Roosevelt ever did. It could be said that from a constitutional point of view, the Bush administration’s greatest offense was not lawlessness, but tactlessness.
Above all, was one further test of presidential action, and it is to this last that Goldsmith rightly pays the most attention.
The supreme and ultimate vindication or condemnation of a war presidency will depend on these questions: In the light of history do the actions look necessary? Was the cause great enough to balance and offset the wrongs done? And was the presidency ultimately successful?

Except for a handful of bitter-end Confederate apologists, we forgive Lincoln his offenses against habeas corpus because they meet the test of necessity. Confederate Fifth Columnists really did seek to wreck the Union war effort. Lincoln famously asked, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?” He got the balance right, treating even outright Copperheads with remarkable leniency: jailing or banishing them rather than trying them for treason.

Franklin Roosevelt’s internment of the Japanese flunks the necessity test. Yet even a terrible (and hysterical) mistake like this is offset by the rightness of the overall cause. As a war leader, Roosevelt was more ruthless than Lincoln. His character does not glow so bright: It is striking to me that he has elicited so many fewer biographies than Lincoln, as if later generations somehow feel that it is not so pleasant to look too closely at him as a man.

Lincoln and Roosevelt together met one other criterion: that of success. Those leaders whose wars ended ambiguously or even in failure – Wilson, Johnson, and Nixon – tend to get a tougher time from history. Truman’s reputation has risen as his war in Korea has been reappraised as more successful than it seemed at the time.

These tests tell us much about the reasons that the indictment of George Bush has gained so much ground. Bush’s wars in Afghanistan and Iraq do not look very successful right now. Maybe someday that assessment will change, as the assessment of Korea changed. If so, expect to see the criticisms of lawlessness abate, as Truman’s astoundingly lawless seizure of the nation’s steel mills has receded into memory.

< But it should also be said: the violent and extreme accusations against George Bush by writers like Jane Mayer reveal something about the writers too. They judge Bush’s counter-actions harshly above all because they do not believe them necessary: because they reject the idea that the 9/11 attacks revealed an extreme and imminent danger to the United States.

The new Obama administration must now decide whether to accept or reject this complacent view. Despite some nods to his left – above all the commitment to close Guantanamo at some future point – the early indications are that the Obama administration will not accept it. The early indications are that President Obama will choose to wield almost every one of the war powers wielded by George W. Bush and all his predecessors. The difference, and perhaps it is a difference learned from the pages of Jack Goldsmith’s book, is that Obama will learn from those predecessors what Bush failed to learn: that leadership in a democracy demands political discretion as much as legal correctness.