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Dudziak: The War is Not Over if Detentions Continue Indefinitely. Goldsmith: Maybe That’s Okay.

2012 February 16

USC Law Professor Mary Dudziak has an op-ed in today’s New York Times pointing out an uncomfortable wrinkle in the Obama administration’s efforts to claim that the war in Iraq is “over” and that conflict in Afghanistan is winding down: that the US continues to detain people, without charge, “for the duration of hostilities,” and that the “hostilities” have been defined in such a manner that they are never actually going to be over.   “Indeed,” Dudziak writes,

the “ending” of combat in Afghanistan and Iraq appears to have no consequences for the ending of detention. Because the end of a war is traditionally thought to be the moment when a president’s war powers begin to ebb, bringing combat to a close in Afghanistan and Iraq should lead to a reduction in executive power — including the legitimate basis for detaining the enemy.

Meanwhile, in the Washington Post, Harvard Law Prof. Jack Goldsmith (and one of the key figures in the Office of Legal Counsel under George W. Bush) explains why we should all stop worrying and learn to love Guantanamo and other counterterrorism policies that, at first blush, seem profoundly un-American.  That’s because “our constitutional system of checks and balances has worked extraordinarily well in the last decade to legitimize these policies and to generate a national consensus in support of them.”  Goldsmith writes “[T]wo presidential administrations with starkly different views about executive power and proper counterterrorism tactics ended up in approximately the same place because constitutional forces more powerful than the aims and inclinations of the presidents were at work.”

I think it’s a real mistake to conclude that “constitutional forces” are at work in creating the consensus that Goldsmith describes.  Rather, I think it’s fairly obvious that the consensus is a function of the acquiescence of Obama and the left, which has transformed once unthinkable practices into the quotidian tools of ordinary policy. (Edit: another factor, of course, is simply that most normal Americans don’t have the time or energy to keep up with the baffling array of mechanisms that the United States has come up for evading legal review, and consequently don’t even know what it is they should be objecting to.  How many people have time to review the legal implications of a case like Al Maqaleh v. Gates, for example, and to wonder whether adequate judicial review is available to the people the United States is detaining in Bagram Air Base in Afghanistan? How many people could even figure out what’s missing from the extensively redacted language of the opinion in Adnan Farhan Abdul Latif v. Obama, much less make some kind of informed judgment about whether the conclusion in that case was correct?  The reality is that much of the “constitutional” discourse around terror tactics is increasingly devoted to the explanation of why American courts are not the place to hear these disputes and why it is not even safe for the American public to know the facts that underlie the dispute.  Unless, of course, the government wants to release the facts to bolster its own case, in which case it’s just fine.)

Nevertheless, it’s notable that Goldsmith expresses this point of view, because he was critical, at times, of the Bush administration’s embrace of some of these tactics.  As Jane Mayer noted in her book The Dark Side, it was Goldsmith who acted to withdraw the flawed “torture memos,” stood up to David Addington, and in the process became “a pariah at the White House.”

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