Tuesday, September 18, 2007

Supporting a Unitary Legal Executive

In his U.S. News essay this week, Michael Barone provides an interesting perspective on Jack Goldsmith's new book, The Terror Presidency. Barone argues that Goldsmith offers as serious discussion of the Bush adminstration's "deeply flawed" legal policies. But a close look at the book's underlying message reveals much to be said for the administration's approach:

For one thing, Goldsmith...supports many much-criticized policies—the detention of unlawful combatants in Afghanistan and their confinement in Guantánamo, trials by military commissions, the terrorist surveillance program. And he rejects the charge that the administration has disregarded the rule of law. Quite the contrary. "The opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death." There has been a "daily clash inside the Bush administration between fear of another attack, which drives officials into doing whatever they can to prevent it, and the countervailing fear of violating the law, which checks their urge toward prevention."
Strangled by the law, eh? If I had a dollar for every left-wing attack on the adminstration's legal policies...you know, the collapse of the rule of law under the "Bush/Cheney regime" (and don't get me going about Glenn Greenwald!)

In my debates with administration opponents, I've often noted how hemmed in the administration's domestic terror enforcement has been. I've stressed particularly how well
the separation of powers has worked to provide judicial checks on the assertion of unitary executive power in the administration's anti-terror campaign.

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