Taking Liberties: The War on Terror and the Erosion of American Democracy
By Susan N. Herman
Oxford University Press, USA, 2011, 296 pp.
Power and Constraint: The Accountable Presidency After 9/11
By Jack Goldsmith
W. W. Norton & Company, 2012, 336 pp.
The unwinding of the Iraq war and the killing of Osama bin Laden have marked a symbolic end to the post-9/11 “war on terror.” What has not ended is the public debate over how the United States and other democracies can best square their commitment to civil liberties and the rule of law with protection against terrorism. Herman, the president of the American Civil Liberties Union, passionately calls for a rethinking of the costs and beneﬁts of the emergency presidential powers that were put in place after the 2001 terrorist attacks. She notes that Congress passed the Patriot Act with little or no meaningful deliberation. And to the surprise of some, the surveillance programs that the Obama administration has justified and pursued are not substantially different from those of its predecessor. Much of the book is a catalog of episodes in which Americans have been “blacklisted, watchlisted, . . . spied on, and gagged.” Post-9/11 measures relating to the “material support” of terrorism have infringed on First Amendment rights. New surveillance techniques have threatened the privacy rights protected by the Fourth Amendment. Herman believes that although it might be understandable that fear and uncertainty led authorities to privilege security over liberty, they overreacted in the wake of the attacks. In defending the United States, the government must also defend the Constitution.
Goldsmith, a Harvard law professor, was on the frontlines of the legal debates after 9/11, working in the Defense and Justice Departments during the first term of the Bush administration. He acknowledges that the “war on terror” shifted power to the presidency. But he argues that this is only half the story. Less known but no less remarkable is a “revolution in wartime presidential accountability” that has simultaneously checked and legitimated the expansion of executive powers. Congress, often spurred on by media attention, has played a role in altering and regulating presidential policies relating to interrogation, detention, and surveillance. Federal judges have proved willing to review the legal authority of presidential military decisions. Outside government,Goldsmith argues, the traditional system of checks and balances has been supported by an expanding network of lawyers, investigators, auditors, bloggers, and public interest groups that have rendered executive decisions more transparent. In Goldsmith’s optimistic vision, it is this complex and messy system of accountability that reconciles a powerful presidency with a strong constitution.