Jack Goldsmith III Honorary Degree Dinner Speech

May 23, 2009 Listen to Jack Goldsmith's Speech
Thank you President Adams. It's a true honor to be here tonight, and I'm very grateful for your invitation. My topic tonight, not surprisingly, is national security and the presidency. And this week we witnessed an extraordinary event, on Thursday—the dueling speeches of President Obama and former Vice President Richard Cheney. And so I'd like to offer you an interpretation of those events.

The conventional wisdom both before and after those speeches was that the Obama administration marked a sharp break from the Bush administration in its counterterrorism policies. And Vice President Cheney had given two interviews in which he had very, very harshly and in some sense unprecedentedly criticized President Obama—at least this early in an administration—for repudiating policies of the Bush administration on counterterrorism, and therefore making us less safe.

And many people criticized Vice President Cheney for acting inappropriately, so new, so soon into the new president's term. They said, the claim was, that he owed the president, the claim was that he owed the president his deference or perhaps his silence as President Bush said he did. And I have a different take on these events and a different take on the so-called debate between Cheney and Obama on Thursday. Because I think Vice President Cheney was wrong to say what he said for a different reason. I think he was wrong because in fact … President Obama has not rejected the Bush administration counterterrorism policies. If you look, if you go down the list of the counterterrorism policies that he's embraced, in fact he's embraced explicitly most of the positions of the late Bush administration. He's repudiated very few if any, and he's expanded some of them.

I'll give you a very quick checklist. Habeas corpus: President Obama has spoke eloquently on the campaign trail about the importance of preserving the writ of habeas corpus. He said it was the essence of who we are, and yet in office he has completely embraced President Bush's policies of limiting habeas corpus only to Guantanamo Bay. It doesn’t apply outside of Guantanamo Bay, and even on Guantanamo Bay he took the same narrow approach to habeas corpus as President Bush. He took the same position on the state secrets doctrine, on military commissions, on military detentions, on targeted killing in Afghanistan—he's expanded the targeted killing program. What am I leaving out? He closed the secret prisons, but in fact there was a loophole in his authorization that allowed him to detain people in secret places for a short transitory period. The Bush administration had not used those prisons in a while, so the actual difference on the ground between the two positions is uncertain.

There are other issues—the main difference, people think, between the two administrations is on interrogation, because President Obama has spoken eloquently against coercive interrogation and in his first day in office he ruled it out, and Vice President Cheney's whole speech was devoted to defend—or a good part of it was devoted to defending waterboarding and the important national security benefits that it brought the country. But in fact, there's not much of a difference even there, because the dreaded waterboard had not been used by the Bush administration since 2003, and for a lot of reasons the Bush administration had pulled back on its interrogation policies by 2008. And it's quite unclear—I won't get into the details—but it's quite unclear if the Obama administration policy on interrogation is going to be any different than the late Bush administration.

So the truth is there's not much difference between them in substance. And then the question is, this is deeply, deeply surprising to a lot of people, and a lot of people started to pick up on the fact that Obama seems in substance to be embracing the Bush administration position. So let me offer an interpretation of four reasons. Let me give you four reasons why President Obama has embraced the substance of the Bush administration counterterrorism policies. Then I'll close by saying why I think despite embracing the substance of the policies he's actually done something importantly quite different than President Bush, and I think it makes all the difference in the world and I think it's the big lesson that we learned this week and that we've learned from the Obama administration on national security since it began.

So the four reasons why President Obama has embraced the Bush administration policies. Reason one is the Bush administration policy by January of 2009 was quite different from the Bush administration policy of 2002 and 2003. In 2003 the country was much more afraid, much more frightened. The Bush administration was at the high point of its unilateral approaches to counterterrorism, on military commissions, detention, interrogation, and surveillance. And when people think about the Bush administration and their policies, I think that they implicitly think about the unilateralism of those early years. But there's been six years since then. The other institutions of our government have engaged the issue—Congress and the courts—and they've pushed back quite a lot on the Bush administration's policies, on a lot of issues—Congress has enacted many statutes. They've pushed back on—the courts have especially gotten involved and disagreed with many of the Bush administration policies, and Congress has gotten involved, pushing back on some policies but, actually, through the democratic process, reaffirming many of them—military commissions, detention, and surveillance, to take three.

So one reason why there's not as much of a distance as you might think between Bush and Obama is that Bush 2002-2003, was quite different from Bush 2008. Bush 2008 reflected more of a consensus in the country, and Obama's positions reflect that consensus.

The second reason why President Obama has basically followed the Bush program is that he was stuck with the decisions of the Bush administration. If he—there hadn't been a Gitmo, he wouldn't have had the quandary of trying to close Gitmo. If there hadn't been coercive interrogations, he wouldn't have had the quandary of trying to try people with evidence obtained through coercive interrogations. So a lot of the reasons why he's basically stayed the path is that decisions were made that he wouldn't have agreed with but he's stuck with now and he has to deal with them.

The third reason, and this will be a surprise to many of you, I think, is that on most of these issues, the Bush administration position was consistent with presidencies going back a very long way. Presidents since George Washington have detained members of enemy forces without charge or trial during war. And we're in a war—the Congress and the Supreme Court have confirmed that we're in a war for legal purposes. Habeas corpus: presidents going back before Carter have argued, like President Bush, that habeas corpus does not extend outside the United States. Presidents going back to George Washington have used military commissions during war. Presidents going back to Clinton and possibly Reagan have engaged in the practice of rendition. A lot of the Bush practices were much more continuous with early presidencies and consistent with longstanding executive-branch policies than many people realized. And it would—it's not surprising that President Obama, once he gets into the executive branch and assumes that that institutional perspective, would continue those policies. In fact it would be surprising if he didn't.

The fourth reason that he has embraced the Bush policies, I believe, is that, as the cliché goes, governing is harder than campaigning. But let me try to break that down for you just a bit. It's one thing to have a position in the abstract about the proper counterterrorism policy. It's another thing to spend an hour first thing in the morning, every morning—and many times throughout the day—to read intelligence information that literally scares the wits out of you, makes you paranoid it's so frightening. And when you read that information, and you realize, because you're the president of the United States, that you are the person responsible for the safety of Americans, and you are the person that no matter what you do, will be blamed and not forgiven if an attack comes and people die, that is a sobering perspective and a sobering responsibility. And it's not surprising that President Obama, like every president who's assumed that position, would want to have all the presidential tools legally available at his disposal to address the threat.

So this is the four reasons why, to many people's surprise, and there are many different kinds of reasons obviously, but I think they come together to explain why President Obama has followed so closely on the late Bush administration policies. And yet there's an enormous difference. And the difference was on display Thursday between the Bush and Obama administrations. President Bush, the Bush administration, and especially Vice President Cheney, engaged in a rhetorical strategy that was self-defeating. They made it—it was a, it was a—it was a policy goal, a principal position of the Bush administration, to expand executive power. They wanted to expand executive power, it predated nine-eleven, and they weren't quiet about it. They made it clear. This is unprecedented in the nation's history. In wartime people worry almost as much about the president arrogating power as they do about the enemy. This happened in World War II, this happened in the Civil War, with our two great war presidents, Lincoln and Roosevelt. Most presidents spend a lot of time in war exercising extraordinary powers but doing everything they can to assuage the public that they're not acting excessively or imprudently. The Bush administration didn't. It had memos that made excessive claims of executive power; it had a public position of wanting to expand executive power; people viewed their actions through the lens of their desire to expand executive power and they were deeply distrustful and suspicious.

President Obama, by contrast, has engaged in a rhetorical strategy and a more general strategy that's more akin to presidents Lincoln and Roosevelt. It has many elements but I'll mention three.

One is—and this is all about establishing presidential trust, which is absolutely vital when the president is exercising extraordinary powers, especially in a war that’s indefinite, has an indefinite duration. So what have President Obama's strategies been to make us more trustful of the extraordinary powers he's exercising and therefore to make us see that his exercise of the same powers may look diff—as President Bush—may actually look different? One is the simple but important creation of a bipartisan national security team. Roosevelt did this when he had to get serious about World War II, about the rising threat in Germany. He put two of his political opponents in the departments of war—head of the Department of War and the Department of Navy, and these people were absolutely crucial to establishing his credibility when he exercised extraordinary powers. President Obama has done something similar, keeping on Gates, keeping main/principal people in the CIA. He has the bipartisan and pragmatic national security team. When he acts—when they're all on board for a national security strategy—it seems less political than it might have otherwise. It's a very important point. Lincoln obviously—the team of rivals—engaged in a similar but not identical strategy.

The second thing that President Obama has done is to make quite clear that he's not exercising power alone. He's exercised the same powers as President Bush, but he's grounded them in quite a different legal theory. It's not grounded in a theory of the commander in chief with limitless powers, it's grounded in a theory that Congress has approved these authorities and limited them, that what we're doing is consistent with international law and therefore limited by it, and he's made quite clear that—in most or if not all of his actions going forward—he's going to make sure, no matter how painful, that he gets Congress on board. Getting another institution of government on board legitimates these practices and makes us less worrisome about them.

The third and final strategy was on display Thursday, quite obviously, and that is the strategy of openly embracing constitutional values in the exercise of these extraordinary powers. Like Lincoln and Roosevelt. President Obama's speech was very much like Lincoln and Roosevelt's speeches from their wars. He publicly, he wrapped himself literally in the Constitution. He explained the importance of upholding values even when he was exercising extraordinary powers. He explained basically why he didn’t love doing what he was doing but he thought it was necessary. And he made quite clear that he was looking for ways to limit himself in small ways. And these small limitations, and he has put small limitations on himself compared to President Bush—not many, but small and public limitations—these small limitations are important public signals that he's really focused on doing what he thinks is necessary to meet the threat and not on expanding his power.

Now my suggestion is that this different rhetorical strategy, and different political strategy, makes us view the identical practices in a very different light. And this is hugely important and a very important lesson about how presidential power works, how the presidency works. And so my claim in the end is that the President Obama is doing just about everything the Bush administration was doing near the end of its term but somewhat—this may be a contrarian claim, but, for Vice President Cheney—but he's doing so in a way that empowers the presidency and makes it stronger and makes the presidency more able to exercise these extraordinary powers over the long term in the long war against terrorism.

Thank you very much.