30 November 2007:

David Cole on Jack Goldsmith, in the New York Review of Books.

In its everyday meaning, "law" refers to a set of curbs on what we call "human nature." Human nature is marked by impulses that are sometimes doubly violent both difficult to control and likely to cause lasting damage. Law provides sanctions against most such impulses. But for a law to be effective, it appears that there must be an anterior agreement - an assent prior to the drafting and legislation of any law - that a given situation requires some kind of legal attention. The feeling that murder is a bad idea precedes all laws that prohibit murder, and such laws are "effective" only to the extent that they are unnecessary. A law that prohibits murder does not actually prevent murder. It does two other things, however, and it is difficult to say which is the more important. First, the law punishes murderers. Second, it affirms the public conviction that murder is wrong. Most of us comply with the law, not by surrendering ourselves for punishment after having murdered someone, but by not murdering anyone in the first place.

In vernacular terms, laws that aren't supported by public assent are unenforceable. Laws that prohibit the gratification of pleasures that do not (necessarily) cause violent damage laws against prostitution or against the consumption of proscribed substances (alcohol or narcotics) tend to be relatively (and sometimes altogether) ineffective. Even if most people believe that prostitution and "drug abuse" are "wrong," the fact that these activities can be pursued without either public consequences or violent impact mutes the support that laws against them will receive from society at large. The proliferation of such laws may have the paradoxical effect of diminishing public respect for laws in general.

These loosely philosophical reflections are brought forcibly to mind by David Cole's appraisal, in a recent issue of the New York Review of Books, of Jack Goldsmith's The Terror Presidency: Law and Judgment Inside the Bush Administration. Mr Goldsmith is a former administration official who, in Mr Cole's words, "has received widespread and deserved commendation for his courage in standing up against [Bush Administration] assertions of unchecked executive power, at both personal and professional cost." Close examination, however, of Mr Goldsmith's positions on a range of issues, from torture to eavesdropping, that have become troublesome precisely because the Bush Administration doesn't seem to think that they are, at the very least, troublesome, suggests to Mr Cole that the former head of the Justice Department's Office of Legal Counsel differs with the Administration "more about style and prudence than about substance." Mr Goldsmith is not bothered by waterboarding as such, or by wiretapping. He would prefer, it seems, to do without laws against these practices. What's important to Mr Goldsmith is that the government behave legally. Indeed, that must be the principal concern of any head of the OLC. He stood up to Vice President Cheney, and to "Cheney's Cheney," David Addington (Vice Presidential counsel, then VP chief of staff), whenever they promoted a policy that violated the law. He believed, however, that it would have been wiser for the Administration to work with Congress to change the laws rather than to assert immunity from legal sanctions. Mr Cole, it almost goes without saying, does not agree.

Ironically, had the laws Goldsmith condemns as "paralyzing" not been on the books, he would have had no standing to resist Addington's relentless drive to expand executive power. The laws governing warfare, interrogation, and surveillance were written to rein in such people as Addington, and their ultimate effectiveness turns on having people like Goldsmith and Comey in office willing to enforce them. If Goldsmith's perverse proposal to erase the very lines he drew were accepted, the result would be disastrous for future efforts to restrain rampant executive power.

My sympathies are with Mr Cole. I believe that dangerously amoral men like David Addington don't belong in government, and that rigorously enforced laws are our only safeguard against their depredations. But I don't believe that most Americans agree with me and Mr Cole. I don't believe that most Americans have given their assent to the restraining legislation that has been imposed upon the executive branch in the wake of Watergate. Indeed, it appears that the Administration has surmised that the checks on its power that have been enacted since the Seventies are ultimately unenforceable, and that they may be violated with impunity. "Wrong!", cries Mr Cole and he is of course not alone. I used to cry out against the Administration myself. Now, however, I am preoccupied not so much by the Bush juggernaut as by its enablers the mass of Americans whose tolerance for a tough, do-what-you-gotta-do executive is so eerily and obliquely mirrored by our timorous media.

I don't know what to do. I don't know what the most effective response to our particular and particularly wrongheaded government might be. But I am pretty sure that it does not involve tapping my foot impatiently, waiting for the enforcement of laws that most of my countrymen regard as "technicalities." (November 2007)

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