Jack Goldsmith

  • Aired:  04/04/12
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Jack Goldsmith's book "Power and Constraint" argues that, surprisingly, America's governmental checks and balances do a pretty decent job of constraining executive power. (7:27)

>> Jon: WELCOME BACK.

MY GUEST TONIGHT, HE SERVED IN THE BUSH ADMINISTRATION'S OFFICE

OF LEGAL COUNSEL, HE'S CURRENTLY A PROFESSOR AT HARVARD LAW SCHOOL.

HIS NEW BOOK IS CALLED "POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11."

PLEASE WELCOME BACK TO THE PROGRAM JACK GOLDSMITH!

(CHEERS AND APPLAUSE) HOW ARE YOU?

JACK, IT'S NICE TO SEE YOU AGAIN WE HEARD YOU'D WRITTEN A BOOK

ABOUT POST-9/11, EXECUTIVE POWER I THOUGHT FOR SURE "POWER AND

CONSTRAINT" WOULD BE ABOUT THE UNRESTRAINED EXECUTIVE, THE IMPERIAL PRESIDENCY.

YOUR PREMISE SEEMS TO BE THAT OUR ACTUAL CHECKS AND BALANCES HAVE DONE A PRETTY DECENT JOB OF

CONSTRAINING EXECUTIVE POWER.

>> THAT IS CORRECT.

EVERYBODY FOCUSES ON HOW POWERFUL THE POST-9/11 PRESIDENCY IS.

AND IT IS POWERFUL.

WE'VE FORGOTTEN OR HAVEN'T SEEN ALL THE DIFFERENT WAYS IN WHICH

COURTS, THE PRESS, HUMAN RIGHTS ORGANIZATIONS, PEOPLE INSIDE THE EXECUTIVE HAVE PUSHED BACK

AGAINST THE PRESIDENCY AND CHANGED WHAT HE'S DOING, BOTH IN THE BUSH ADMINISTRATION AND THE

OBAMA ADMINISTRATION.

>> Jon: YOU MAKE A POINT ABOUT THERE'S A VERY SMALL GROUP OF

CIVIL RIGHTS ATTORNEYS WHO GOT THE BUSH ADMINISTRATION TO ADDRESS INDEFINITE DETENTION AND

HABEAS CORPUS.

>> THEY WERE VERY SUCCESSFUL IN BRINGING LANDMARK SUPREME COURT CASES.

THEY WON SOME VERY IMPORTANT DECISIONS.

THEY GOT WHAT THEY WANTED WHICH WAS HABEAS CORPUS JUDICIAL REVIEW OF THE GUANTANAMO DETAINEES.

THEY WERE ABLE TO GET 600 OR 700 PEOPLE OUT.

BUT WHEN THE COURTS LOOKED AT IT AND CONGRESS GOT INVOLVED AS WELL THEY DECIDED HEY, IT TURNS

OUT IT IS LAWFUL TO DETAIN THESE PEOPLE AND GITMO INDEFINITELY AND NOW IT HAS THE IMPRIMATUR OF

THE FEDERAL COURTS.

>> Jon: IS THAT CONSTRAINING THE PRESIDENCY OR JUST CODIFYING THINGS WE DID NOT THINK WERE

POSSIBLE AND HAVE NOW ACCEPTED AND MAYBE SHOULDN'T BECAUSE THIS IS A WAR OF NO END.

>> WELL, THAT'S AN IMPORTANT QUESTION, IT'S A BIG QUESTION.

WHO IS "WE" THAT THINKS WE SHOULDN'T DO THAT?

>> Jon: I MEAN ME AND YOU.

(LAUGHTER)

>> THE COURTS HAVE PUSHED BACK QUITE A LOT AGAINST THE EXECUTIVE AND THEY STILL ALLOW

THEM TO DETAIN BUT THE STANDARD IS MUCH NARROWER THAN IT USED TO BE.

HIS POWERS ARE NARROWLY CONFINED.

HE HAS EXTRAORDINARY POWERS.

HE USED MILITARY COMMISSIONS TO ENGAGE IN TARGETED KILLINGS.

>> Jon: DOES IT FEEL WORSE BECAUSE OBAMA CAMPAIGNED TO REPEAL THAT STATE OF AFFAIRS?

SO MUCH OF HIS RHETORIC WAS "WE DO NOT HAVE TO SACRIFICE OUR

VALUES FOR OUR SAFETY" AND THEN HE GOT IN THE OFFICE AND WENT "WELL, ACTUALLY, THAT VALUE

COULD GO."

>> RIGHT, AND THIS IS A LARGE PART OF WHAT THE BOOK IS ABOUT BECAUSE OBAMA IN JANUARY OF 2009

EVERYONE THOUGHT THAT EVERYTHING WAS GOING TO CHANGE AND WHAT HAPPENED WAS THAT HE DIDN'T...

OBAMA DIDN'T LACK THE COURAGE OF HIS CONVICTIONS ON CIVIL LIBERTIES.

HE GOT INTO POWER, HE HAD THE RESPONSIBILITY FOR NATIONAL SECURITY AND IT TURNS OUT THAT A

LOT OF THE PRACTICES THAT THE BUSH ADMINISTRATION HAD BEEN ENGAGED IN HAD BEEN CHANGED AND

ALTERED SOME QUITE A LOT, SOME QUITE A LITTLE.

MUCH HAD BEEN APPROVED BY COURTS AND THE SYSTEM HAD BASICALLY BECOME LEGITIMATED AND WHEN HE

HAD THE RESPONSIBILITY FOR KEEPING THE COUNTRY SAFE HE WASN'T GOING TO WALK AWAY FROM

THAT LEGITIMATED SYSTEM.

AND IN SOME INSTANCES HE TRIED TO WALK AWAY, TRYING TO CLOSE GITMO, TRYING TO HAVE CIVILIAN

TRIALS AND HE WASN'T ABLE TO BECAUSE THE SAME FORCES THAT PUSHED BUSH TOWARDS THE CENTER

PUSHED OBAMA TOWARDS THE CENTER AS WELL.

>> Jon: WE ALSO KNOW THAT CERTAIN OF THOSE CONSTRAINTS WERE INHERENT IN THE WAY THAT

THE ORIGINAL REGIME HAD BEEN SET UP.

IN OTHER WORDS, YOU COULDN'T TAKE THESE TRIALS TO CIVILIAN COURTS BECAUSE SO MUCH OF THE

INFORMATION WE HAD GOTTEN FROM TERRORISTS WAS COERCE SOD IF YOU DID THAT YOU COULDN'T UNRAVEL THAT.

>> SOME HE COULDN'T UNRAVEL AND PEOPLE IN GITMO WERE THE HARDEST THING.

THAT WAS THE HARDEST SITUATION TO UNRAVEL.

>> SO ARE WE JUST TO ACCEPT BECAUSE IT'S BEEN LEGITIMATED

THAT THERE ARE INDIVIDUALS RIGHT NOW THAT WE WILL HOLD FOREVER WHO WILL NEVER HAVE AN

OPPORTUNITY FOR WHAT WE WOULD CONSIDER A DUE PROCESS.

>> WELL, THEY'VE HAD VERY SIGNIFICANT DUE PROCESS.

I BET IF YOU GO BACK AND LOOK AT YOUR SHOWS FROM A DECADE AGO....

>> Jon: OH, WE WERE SO YOUNG THEN.

>> IF YOU LOOK AT THE KIND OF THINGS YOU WERE INSISTING ON BACK THEN I BET ONE WAS JUDICIAL REVIEW.

YOU WERE PROBABLY INSISTING ON HABEAS CORPUS.

>> Jon: OUR HABEAS CORPUS WEEK WAS VERY POPULAR WITH THE COLLEGE KIDS THAT YEAR, I REMEMBER.

>> THE TRUTH IS THAT THE DETAINEES IN WARTIME ARE GETTING MORE PROCEDURAL PROTECTIONS THAN

THEY'VE EVER HAD BEFORE AND MANY HAVE BEEN RELEASED EVEN THOUGH THEY WERE FIGHTING FOR THE ENEMY.

BUT YOU'RE RIGHT.

WE HAVE GOTTEN DOWN NOW TO A NUMBER OF THE ISSUES.

THERE ARE PEOPLE THAT ARE...

THERE ARE A MILITARY COMMISSION SOME OF THEM, THE PRESIDENT WANTS TO TRY SOME OF THEM IN

CIVILIAN COURT BUT CONGRESS WON'T LET HIM.

THERE ARE A GROUP OF PEOPLE WHO WILL BE DETAINED INDEFINITELY AND THERE'S NO ALTERNATIVE.

SO WHAT THE GOVERNMENT HAS DONE IS RAMPED UP THE PROTECTIONS TO MAKE SURE THE FACTS ARE RIGHT

AND THEY'VE HAD FULL JUDICIAL REVIEW.

THAT THE CIRCUMSTANCES OF THEIR... THEIR LIVING CIRCUMSTANCES ARE AS GOOD AS THEY CAN BE.

>> Jon: BUT ULTIMATELY WE HAVE TO TRUST THE EXECUTIVE IN THAT.

>> I DON'T THINK YOU HAVE TO TRUST THE EXECUTIVE.

THE EXECUTIVE HAS TO GO BEFORE THE COURT AND MAKE HIS CASE.

>> Jon: MILITARY COURT?

>> NO, FEDERAL COURTS.

ALL THE PEOPLE IN GOT GO TO...

GUANTANAMO BAY GO TO THE SUPREME COURT POTENTIALLY AND THIS IS ONE OF THE GREAT ADVANCES.

ONE OF BUSH'S PROBLEMS WAS THAT HE RESISTED JUDICIAL REVIEW AND

THAT WAS ONE OF THE MANY REASONS WHY PEOPLE DIDN'T TRUST WHAT HE WAS DOING.

>> Jon: ARE YOU WORRIED ABOUT GENERAL CIVIL LIBERTIES AND THE SORT OF WINDOW THAT HAS BEEN

PUSHED ABOUT DATA MINING, THE GOVERNMENT'S ABILITY TO JUST COLLECT DATA FROM ITS CITIZENS,

THIS SUPREME COURT CASE ABOUT STRIP CERTAINS FOR EVEN MINOR INFRACTIONS, THINGS THAT WE ARE

JUST TENDING TO ACCEPT AND THE SLIPPERY SLOPE WE GO DOWN WHEN WE DO THAT?

>> OF COURSE I WORRY ABOUT IT.

I WORRY ABOUT THE SIZE OF THE GOVERNMENT, THE SIZE OF THE NATIONAL SECURITY BUREAUCRACY,

THE SIZE OF THE EXECUTIVE BRANCH AND THE AMAZING SCARY POWERS IT HAS AND NOTHING IN MY BOOK

SUGGESTS WE SHOULDN'T BE VIGILANT IN QUESTIONING AND CRITICIZING BUT I THINK THERE

ARE ALL SORTS OF CONSTRAINTS AND CHECK HERBS AND WATCHERS LOOKING AT THE PRESIDENT TO MAKE SURE

WHAT HE'S DOING IS LAWFUL AND USEFUL.

>> Jon: BELIEVE ME, I WAS READY TO OPEN THIS UP AND BE RIGHT

"WE'RE ALL MONTHS AWAY FROM LIVING IN A GULAG." (LAUGHTER)

BUT YOU MAKE A GOOD CASE THAT THERE IS A VERY HEALTHY SYSTEM IN PLACE THAT ATTACKED THESE

EXCESSES AND DOES FIND A WAY,

MAYBE NOT IMMEDIATELY TO CONSTRAIN THEM MAYBE NOT BACK TO ITS ORIGINAL FORM.

>> THAT'S RIGHT, BACK TO THE ORIGINAL FORM BUT WE'RE NOT IN A PRE-9/11 WORLD.

WE HAVEN'T BEEN ATTACKED IN A LONG TIME IN THIS COUNTRY BUT INSIDE THE EXECUTIVE BRANCH

THEY'RE WORRIED ABOUT THE NEXT ATTACK AND IT'S NOT A PRE-9/11

WORLD SO WE HAD THIS POWERFUL PRESIDENCY AND AN INDEFINITE WAR AND MY BOOK IS ABOUT THE VARIOUS

CONSTRAINTS THAT HAVE GROWN UP TO CHECK AND LEGITIMATE AS IT GOES FORWARD.

IT'S NOT JUST THE OVAL OFFICE.

I SIT UP IN MY OFFICE AND DO THIS ALL NIGHT SO...

(LAUGHTER) IT'S REALLY JUST AN INTERESTING ARGUMENT, SO WELL LAID OUT.

"POWER AND CONSTRAINT." ON THE BOOKSHELVES NOW.

OUR FRIEND JACK GOLDSMITH.

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