The Initiative for the Study of Constitutional Democracy and Boston College Law School sponsored a lecture by Jack Goldsmith, Harvard law professor, author, and former head of the Justice Deparment's Office of Legal Counsel. Goldsmith spoke about the legal aspects of the war on terror, and the way in which the White House's relationship with the law has shaped policy-making communities, to be alert to any possible threat to national security. He said that the number and variety of the threats in the "threat matrix" can be overwhelming.
"The subjective experience of the threats and the knowledge that we didn't act aggressively enough to stop them before 9/11 leads people to be very afraid and on their toes at every minute," he said.
Goldsmith said that politicians in Washington felt "this keen sense of responsibility for keeping the American people safe." He said this sense was one of prevention and aggressive action. "We made a mistake once," he said. "We didn't want to make a mistake a second time."
He said that this sense of responsibility would sometimes lead to a distrust of the legal constraints put on the power of the president to pursue terrorists in ways he saw necessary. The attitude of many in the White House, Goldsmith said, was that the president should push to the edge of legality in the pursuit of terrorists. He cited previous presidents, including Abraham Lincoln and Franklin Delano Roosevelt, who pushed the limits of legality and executive power during wartime.
Goldsmith said that the Bush administration and its unprecedented broad interpretation of executive power came into conflict with a variety of restraints put on those same powers after the Vietnam War and the Watergate scandal. Other restrictions on executive power were instituted in the 1980s and '90s to ensure the preservation of human rights. "These laws were instituted for good reasons, but they were novel," Goldsmith said.
He said that the variety of legal restrictions led to an environment of "cautious lawyering," an environment that was criticized in the 9/11 Commission Report. "You don't do anything in the defense community or the intelligence community without consulting a lawyer," Goldsmith said.
The Bush administration pushed back against this cautious legal attitude, especially in the early years after Sept. 11. "They thought that power in the executive branch was the absence of constraint," Goldsmith said. "This attitude of law and this fear of law permeated the executive branch."
In his personal opinion, Goldsmith said, the president could have made more substantial strides in the fight against terrorism if he had worked in a more transparent partnership with Congress.
"One of the things we learned about," he said, "is that … the president's power relies a lot on his ability to get other agencies of government on board with what he was doing."
Whoever the next president is, he or she will have to face the challenge of educating the public about the threats facing the country without betraying intelligence sources, among other concerns, Goldsmith said. "The public cannot act too far ahead of the public perception of the threat of attack," he said.
He also said that surveillance efforts are unlikely to stop or even slow down.
"We're becoming a society where the government surveils everything we do, and that's not something I'm happy about, but it's going to grow and grow and grow." He attributed this in part to the nature of the terrorist threat. "This is the great difference between this and other wars: We don't know what the end looks like."
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