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At an AEI book forum event on Wednesday discussing “Power and Constraint: The Accountable Presidency After 9/11,” author Jack Goldsmith argued that American presidents are more accountable for their national security decisions than ever before. After introducing his book, Goldsmith set up the discussion by highlighting the significant disparities between President George W. Bush’s early and later policies — disparities that were not acknowledged by then-Senator Barack Obama on his campaign trail. Jeremy Rabkin, professor at George Mason University School of Law, responded to Goldsmith by pointing out the difference in rhetoric used throughout Obama’s campaign — whereas the Left was vigilant about opposing the wars, the Right was less vocal. From there, Neal Katyal, professor at the Georgetown University Law Center, spoke to the issue of leaks in government, when people feel as though they are not being heard, and the normal, accepted processes within government are not being employed. Bush’s later policies would not have been such a big issue, says Katal, if normal process had been used. Finally, Washington Post investigative reporter Dana Priest argued that the leaks in government were not a risk to national security, and were overblown. Priest concluded that these leaks are actually positive in the long run because they provide accountability for the presidency.
-- Liz Thatcher
As Jack Goldsmith states at the outset of his new book, “War and emergency invariably shift power to the presidency. Permanent war and permanent emergency threaten to make the shift permanent.” As a result, conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. But in his provocative new book “Power and Constraint: The Accountable Presidency After 9/11,” Harvard Law School professor Jack Goldsmith argues that post-9/11 American presidents are more accountable for their national security decisions than ever before. To be sure, in the wake of 9/11, two presidents have exercised far-reaching powers with respect to detention, trials, surveillance and state secrets. That being said, Goldsmith argues, these enhanced powers have been checked by thousands of largely invisible — but quite real — countervailing legal and political forces. These constraints — enforced in varying forms and degrees by congressional committees, government lawyers, courts and the media — have transformed a presidency with unprecedented power into one that also has unprecedented accountability. Goldsmith alleges that this crucial corollary to the post-9/11 expansion of executive power has been the driving force behind many of both President George W. Bush’s and President Obama’s national security decisions and helps explain the surprising continuity between the two administrations’ counterterrorism programs. The result, according to Goldsmith, has been the preservation of a balanced constitution in the face of a seemingly permanent state of emergency.
How real and desirable is this newfound presidential accountability? Is it consistent with the constitutional framers’ conception of the president’s role? Is it enough to keep our chief executive in line in today’s heightened state of permanent emergency? And finally, who decides? These and other questions will be discussed at this AEI and Federalist Society event.
Full video will be posted within 24 hours.
JACK GOLDSMITH, Harvard Law School
NEAL KATYAL, Georgetown University Law Center
DANA PRIEST, The Washington Post
JEREMY RABKIN, George Mason University School of Law
HON. C. BOYDEN GRAY, Former White House Counsel
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Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, where he teaches and writes about national security law, presidential power, cyber security, international law, internet law, foreign relations law and conflict of law. He is also a member of the Hoover Institution Task Force on National Security and Law. Previously, Mr. Goldsmith served as assistant attorney general in the Office of Legal Counsel (2003-2004) and special counsel to the Department of Defense (2002-2003).
Hon. C. Boyden Gray is a founding partner of Boyden Gray & Associates. He is also the former ambassador to the European Union (2006-2007) and former special envoy for Eurasian Energy Diplomacy (2008-2009). He likewise served as special envoy for European Union Affairs (2008-2009) and as White House counsel during President George H.W. Bush’s administration (1989-1993), and as legal counsel during George H.W. Bush’s vice presidency (1981-1989). Prior to his special envoy appointments, Mr. Gray served as U.S. ambassador to the European Union in Brussels from 2006 to 2007. Mr. Gray also served in the U.S. Marine Corps, and clerked for Chief Justice Earl Warren of the United States Supreme Court (1968-1969).
Neal Katyal recently became a partner at Hogan Lovells after serving as principal deputy solicitor general and acting solicitor general of the United States. In that capacity he argued numerous Supreme Court cases, including his successful defense of the constitutionality of the Voting Rights Act of 1965 in the landmark case, Northwest Austin v. Holder. He also successfully argued in favor of the constitutionality of President Obama's health care bill, and unanimously won a Supreme Court case defending former Attorney General John Ashcroft against alleged abuses of civil liberties in the war on terror. Before that he was the chaired Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center and the lead counsel for the Guantanamo Bay detainees in the Supreme Court case Hamdan v. Rumsfeld. Mr. Katyal clerked for Supreme Court Justice Stephen Breyer as well as Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit.
Dana Priest is a two-time Pulitzer Prize-winning investigative reporter for The Washington Post. She was previously the Post's Pentagon and intelligence beat reporter and has written extensively about the Central Intelligence Agency’s counterterrorism operations, including secret prisons, renditions, interrogations and targeted killings; the military's secret Joint Special Operations Command unit; the intelligence community's massive response to 9/11; and the army's mistreatment of soldiers at Walter Reed Army Medical Center. She is author of the 2003 prize-winning book "The Mission: Waging War and Keeping Peace with America's Military" and the 2011 bestseller "Top Secret America: The Rise of the Security State."
Jeremy Rabkin is a professor at George Mason University School of Law, where he teaches international law, constitutional history and the law of armed conflict. Professor Rabkin was recently confirmed by the U.S. Senate as a member of the board of directors of the United States Institute of Peace, a federal advisory body, and also serves on the board of directors of the Center for Individual Rights, a private, non-profit legal advocacy organization.