[inaudible conversations] .. >> who have been murdered as a result of this, but the only thing that we knew outside of the government program was that guns from american gun dealers were going into mexico and causing all these problems with the cartel when really the government was sanctioning these

sales and sending them into mexico. >> she's interviewed by major garrett sunday night at 9, part of booktv this weekend on c-span2. >> next, in this hourlong program, jack goldsmith argues that while it's commonly held that 9/11 resulted in the executive branch obtaining unaccountable power, the reality is that congress pushed back against executive power in significant ways after september 2001 and placed controls on the president that most people don't realize exists. this, he says, explains why president obama has not made a major shift away from the counterterrorism policies of the bush administration. [applause] >> thank you very much, rachel, and i want to thank the harvard bookstore for hosting this event and organizing it s. and i also want to thank my distinguished colleagues for taking time to talk about my book.

i'm going to give a very brief overview of the book, and then i'm anxious to hear what the distinguished panel has to say about it. so the book begins from the observation that the most surprising, perhaps the most surprising development in the obama administration is the fact that it continued george w. bush's counterterrorism policies, almost all of them. there were a few changes, one major change, but for the most part they continued the path that george bush was on at the end of his term. and this was surprising because president obama, one of his central campaign practices was he was going to change things, and everyone thought when he became president, there was going to be a dramatic change in the course of counterterrorism policies. and the main explanation, i think it's fair to say, for why obama continued bush's policies is some combination of that he locked the courage of his convictions and wasn't as strong-willed or as committed to civil liberties as his

supporters hoped and that relatedly, the presidency is just a gigantic institution that's out of control, and whoever gets in that office is going to exercise all of these massive powers. now, there's no doubt that along many dimensions this is hard to measure, but the presidency is more powerful, certainly larger, has more tools at its disposal than ever before. we're engaged in an indefinite war against al-qaeda, and in some sense the transfer of military power to the president which we have done in this country does empower the president like he's never been empowered before. the thesis of my book is that that's only half the story and that the other half of the story that we should pay more attention to is how constrained the presidency is and that, in fact, um, the other institutions of our government have done a remarkable job of observing, rooting out secrets of the presidency, scrutinizing what the presidency's doing, pushing

back against the presidency and then legitimating it policies. and this, i describe this at length in the book. the way this links up to obama continuing bush's policies is there are many reasons why obama continued bush's policies, some of them are obvious. when he became president, he had different kinds of respondents, he had access to different types of information, and there were many precedents that were available to him, executive branch precedents that he didn't want to walk away from. but i think the most important explanation is that right under our nose those policies had been vetted by the other institutions of our government, altered and then blessed. this is true of military commissions, military detentions and surveillance primarily, but lots of other issues that i talk about in the book. um, now, this is a story about really extraordinary and unprecedented actions by the traditional institutions that check the presidency, so congress -- the most hapless

institution of the government, in my opinion, for many reasons -- actually engaged in unprecedented regulation of the commander in chief during the war on interrogation, detention and surveillance where it's not really known how far congress in 2005 basically stopped the bush administration's interrogation policies in its tracks. so congress is consequential, courts were even more. arthur schlessinger said in "the imperial presidency" courts have not been involved during times of war, and that is not true this timement -- time. courts have caused the president to alter many of his policies. the press, the other institution that the founders thought would check the presidency, has done an extraordinary job of rooting out government secrets and exposing errors and abuse of the

government. so that's more or less, that's a story that is not well enough known, and it's in the traditional vein of how the government works. but the book is also about revealing a more complicated system with more complicated actors, and i'll just mention two others that were consequential in achieving the legitimization. one were actors in the executive branch, lawyers, tons of lawyer, but also inspectors general that are really independent watchdogs inside of the presidency that did an extraordinary job of collecting information and reporting that information to the public and congress in a way that led to some of the changes. and finally, um, human rights organizations. american and global human rights organizations that were networked in very powerful ways with people inside the government, inside the military, inside congress, with the press, with actors around the globe. they brought enormous pressure

to bear on the government in ways there really hasn't been a force like this in bringing lawsuits, critical reports, freedom of information act claims and the like. the book is about describing all these processes and how they word to push back -- worked to push back against the bush presidency and also to push back against the obama presidency. the reason gitmo is open today is not because president obama wanted that, but congress basically prevented him from closing gitmo. another sort of -- that's a very powerful check on the presidency, whatever you think of it. most of the book is a rich description of how this works with some characters that are a little bit below the radar screen and trying to describe how this process works. my normative take, and i'll close with this, my normative take on the book is a little complicated, sorry, on these issues is a little complicated. basically say what i describe is vindicated the basic system of checks and balances that the framers established.

indicated the basic framework of checks and balances that the framers established, they're not in the way they would have wanted. but as arthur schlessinger said, the main criterium is self-correction. and we've had a series of self-corrections from a very disruptive event in 2001 to where we're in a position in 2012 where there's a remarkable legal and political consensus in this country in favor of what president obama is doing. that is a carryover of the process under president bush. whether we have the perfect counterterrorism policies for reasons i discuss in the book, that's very hard to know. we don't have enough information about the threat, our values different about how we want to way the trade-off between liberty and security. but the point i want to end with is that these many constraints on the presidency that i describe in the book -- the name of the book is "power and constraint," and one of the themes in the book is where we worry many people, including

myself, worry as much about the excessive powers of the presidency as we do about the terrorist threat, that these many, many constraints have been important in guiding the presidency away from some of its excesses and in generating consent. also importantly, it strengthened the presidency along many dimensions and enabled him, the president, both bush and obama, to do things they otherwise would not have been able to do. the reason gitmo is off the radar screen legally and politically today is because the courts intervened, raised the legal standards, reviewed the detentions there, forced some people to be released indirectly, but they blessed it. the courts and the congress and now have supported the president in what's going on there. the reason president obama when he was a senator went along with revision of the surveillance program that gave the president large powers of warrantless surveillance was because, as senator obama said, there's this watchdog that i talked about, the inspector general who's

inside the executive branch watching him, and i trust that actor to keep him in line as part of the process. military commissions are finally getting going. so the presidency is the very large and powerful institution, but it is deeply, deeply checked and accountable institution, and that accountability scheme is a very important element of its power. that's basically what this book is about, and i think martha's going to speak next. i'm sorry, charles. >> in leviticus, yes jehovah prohibited, stated: thou shalt not see the kid in it mother's milk, thereby indicating a emblematic act of cruelty and ip humanity -- inhumanity. based on that one phrase, the

rabbinical lawyers have created something as complicated as what jack describes so that now on observant jews will have two sets of dishes, and all disturbs will be glass lest a molecule of meat or milk remain after washing. abraham lincoln in 1863 promulgated the most remarkable document which is still worth all of your attention, the leiber code, executive order 101, which is a code for the conduct of war, the first ever. and it's very hard-headed, but it precludes -- as did leviticus -- basic acts of

cruelty and inhumanity. we now have a army of lawyers everywhere from julius caesar to napoleon to rommel to patton, everyone has understood that to wage a war you must have surprise, flexibility, intuition. the phenomenon which jack so streak -- strikingly and originally describes and appears to celebrate, i deplore. but we see the same thing. it has made surprise, flexibility, intuition in the conduct of war virtually impossible. now, i think it's st. francis

xavier who said that one should never attribute to a man a motive more exalted than is necessary to explain his behavior. so how did we get this? and i look at institutions like the center for constitutional rights and its emblematic leader, david cole, and i ask, well, what is the motive? no more exalted than is necessary to explain his behavior, and that is that he hates war, he hates the use of force, and he isn't particularly fond of the government of the united states. and i think those things are all at work here. and, therefore, what do i recommend? what would i like to happen? what i would like to happen is that we could return to a simpler time when a simple code

enacted by a great and decent man, abraham lincoln, would be enough. is it enough? i'm afraid not. but what we're left with is a absolute monstrosity which is so powerfully described in this book. >> thank you, charles. [laughter] >> charles, i wish you would say what you really think. [laughter] >> next time. >> so this is a tremendous book. it is a pleasure to read. every page has insights in it. i'm just going to highlight a couple of themes that are related to but maybe beyond, actually, what jack already summarized and ask a couple of questions. so the subtitle of the book, "the accountable presidency after 9/11," i think is the most interesting avenue into the book. the book introduces the idea of

accountability with new techniques beyond what the constitution actually provided for. and at the same time, demonstrating how the existing branches actually also have been able to interrelate and provide checks and balances. the new accountability techniques include some of the techniques used within the existing branches such as the inspector genre scream created by congress in the executive, such as the freedom of information act available for people like david cole and other private actors to produce a kind of transparency. and what the book demonstrates is that both in the process and in the results this combination of new activities in old branches and new kinds of uses of instruments has actually produced enormous transformation

of the substantive policies and of the dynamic among the branches. a question that i have is whether, in fact, the declining resources that are existing, for example, for investigative journalism bode ill for the dynamic that the book so well describes. so, for example, media is a critical player in this story. and the effective investigative journalism that disclosed everything from the absolutely horrific behavior in abu ghraib to the existence of secret surveillance depended on a kind of financing of investigative journalism that i'm not sure will exist going forward. the disruptive activities from the digital and other kinds of development on the field of journalism are quite profound. jack anticipated the question to

some extent in saying, well, but there still is a market for national news. i ask, is that true, and particularly when we're dealing with global wars, you cannot imagine how expensive it is to cover these kinds of developments all over the world. so what will there be in the future. a second element of the accountability regime that the book so well describes is the role of these nonprofit organizations, the human rights organizations, the aclu, for example. um, will they be able to operate in the same way that they have in the past is a similar question that i have to ask. in particular, will they be able to find the kind of independence and funding sources that they have had in the past? and a third aspect of the accountability regime that the book so well describes is the role of lawyers and the role of lawyers really inside the military as well as inside each of these branches and lawyers

who are actually setting constraints on the behavior of the military, behavior of the executive. but the book itself also argues that law can provide basis or a substitute for military action, and i'm wondering as law becomes a tool in war will it still provide the same kinds of checks that the book so well describes? finally, the book makes the very interesting argument that the leaks have actually matched the degree of secrecy, and it similarly makes the very interesting argument that people on all sides of the debates over the terror presidency feel that they lost. people inside the executive, people inside the military, people in the nonprofit rights organizations, people in the media. and my question about both of those insights that there seems to be a kind of parallel, the leaking has matched the secrecy and the sense of frustration by

people on all sides, i wonder if that actually suggests, um, something a little bit too neat, that maybe there's a tragedy here rather than a solution, maybe there's simply frustration on all sides. now, jack closed by saying that you don't know -- and i'm sure none of us do -- whether or not the united states has reached the right equilibrium when it comes to the sub substantive terrorism/counterterrorism policy. i guess i would ask have we reached the right accountability mechanisms, will they be self-perpetuating, or will the next cycle actually require the develop of new institutions? >> joe? >> well, this is a very interesting is and subtle book. if jack had merely stopped at the first part, he described tonight or basically the first chapter of the book say, you know, obama got stuck with the

same system we got tuck with, and disturb stuck with, and the bush administration, you know, interesting, but that's not what the book is. the book is actually a profound coyes sis of madisonian democracy. and updating it for the digital age. and that is very original. i mean, the book is worth reading for that alone. and it's interesting, i published this book a year ago called "the future power." mitch made the argument that the united states was not in decline, and i spent a lot of time defending the economic and social bases of that argument. people would pull out the trump card, just look around you, the political system is broken. and as a madisonian, i would say, no, it's not. you've got to realize the american political system was

designed to prevent king george from ruling over us or anybody else as well. they were concerned, the founding fathers were concerned about freedom, not about effectiveness. and they did, indeed, create a system which was frustrating, has a lot of mess but which did preserve freedom. now, if you take the world after 9/11, there's a great deal of worry that that system was broken, didn't fit the 21st century. you couldn't take madison and separation of powers and make it a 21st century. but, in fact, what jack shows is you can, and we have. so rather than saying the political system is broken, if you read this book, you say, my god, it works. you know, madison said you check class with class, interest with interest, faction with faction. and what we see is that that is what we did in the period after

9/11. my initial reservations about the bush administration and it reactions was it seemed to me profoundly wrong that one person, the president, could be execution, jury, judge, you know, the whole works. that was, that concentration of power, what you might call the cheney/addington theory of the constitution, i found profoundly offensive from a madisonian point of view. and it didn't work. and ask yourself this question. if somebody asked you whether in the period after 9/11 with the most, if you want, at least on paper or rhetorically rigorous defense of presidential power that we've seen in the executive in decades -- namely bush/cheney/addington, so forth -- would you expect the supreme court to overrule the long tradition that courts stay out of habeas corpus issues in

the midst of wartime? or that courts would allow wireless surveillance? or courts and congress, that they would ratify military commissions? you'd say, look, who's going to prevail on this? a bunch of human rights lawyers or this really tough set of people in the executive branch? and guess what? a bunch of human rights lawyers overcomes this really tough set of people. that's a huge anomaly for political scientists to explain. and then you read this book, you'll see it. it's explained. because not only do you have the questions of the three branches of government and the fourth branch of the press, but there's a fifth branch which you might call if you're a social scientist, you call them end stemmatic communities, but in more common sense terminology

you'll call it like-minded networks. they can be bloggers, lawyers, human rights act the vises -- activists, so forth. and what they have is soft power. and what's interesting is that what stalin once said about the pope, how many divisions does the pope have? and that was the putdown of the pope's soft power. what you read in jack's book, today every division has judge advocate general, every division has a lawyer. so it's not how many divisions you have, it's how many lawyers does your division have. and then how do they network with each other and create a new con season access? and -- consensus? and there's some brilliant pages in here describing exactly how this happens. so i found when i read, read this book, i came to a conclusion quite different than charles did. rather than seeing it as an abomination -- after all, we still did have a fair amount of surprise with the slaying of bin laden -- but rather than

seeing it as an abomination, i saw it as a justification of james madison that we have evolved a system and a political culture that's strong enough that we can preserve those fundamental insights that madison had. in that sense, this is a very conservative book with a very small c. but it is a book which, to my mind, restores my faith in the founding fathers and the american tradition. so jack ends the book with a nice little quote which he says that if madison were to come down from heaven and to look to see what's going on, it might put a smile on his face. and i'd say that if he couldn't get here, but somebody sent him a copy of jack's book up there in heaven -- [laughter] that would also put a smile on his face. so well done. >> so thank you so much for those comments. i'll just try to respond to some of them. just on joe's point, um, i agree

with your assessment of the kind of short-term thinking and how self-defeating the bush unilateral strategy was. amazingly, um, so i read and did a short comment on the cheney and bush and rumsfeld memoirs. and, um, vice president cheney was unapologetic about unilateral approach and the need to expand the presidency. but amazingly, in my opinion, donald rumsfeld had a whole chapter called "the road not taken" in which he said the biggest mistake we made, and he didn't put it this way, was the unilateral approach. that led the courts to get suspicious and get involved, and it ended up putting us in a tighter bind and delegitimating what we were doing much many sor than we -- so than if we had gotten them onboard at the beginning. and president bush basically

said the same thing. so i disagree with charles about -- not with his description. it is the process and the institutions i describe are very messy ones, there are a lot of lawyers involved, but not just lawyers, there are a lot of extreme claims and name calling and lots of lawsuits and tons of lawyers and other people asking for documents and looking at things and seeking approval. but i think it's wrong as jee said to -- as joe said to say that surprise and flexibility become impossible. the bin laden raid demonstrates that. our military is extremely effective, and there are very few commanders you can talk to, including david petraeus, who wouldn't say that the military is better off for all the lawyers that they have. now, there are costs to having lots of lawyers, and i talk about the costs in the book, but the judgment of the military, including people like david petraeus, is that on balance the lawyers help constrain us, help us do act prudently, and prudent action especially in a world that is entirely networked in

which the military's actions are visible to the whole world, that kind of constraint turned out to be very important to power. the greatest defeat the united states had after 9/11 was abu ghraib, and some of the other legal mistakes that were made were also harmful to the effort. and so the judgment of the military is that while lawyers are not serious cost, they're on balance effective and important. as for, you know, the ngos and what motivates the center for constitutional right, one of the, perhaps, surprising things in this book coming from me is how i celebrate the role of human rights institutions and nongovernmental organizations and the role that they have played in making the presidency accountable and legitimating i. the center for constitutional rights whatever you think about what it was motivated by, and i don't think motivations count as much as what they accomplished, they won several very important supreme court victories. and those supreme court

victories led to a spate of judicial review that led to the blessing of the gitmo policy, basically. without those lawsuits, and this is one of the great ironies for the human rights organizations, without those lawsuits and the processes that they triggered, um, you know, it's a remarkable fact that we have 170 people being detained at gitmo with the courts and with congress and that are widely accepted by the american people. whatever some people think about it, it is a legitimate system within our constitutional system, and the center for constitutional rights helped bring that within the rule of law. so martha asked some tough questions, and i'm only going to be able to answer a few of them. so it is an important question whether the first chapter of the middle section of the book that talks about this new regime is called "accountability journalism." and i put what journal itselfs did, and i use the phrase "journalist" in a broad way, what they did at the heart of the accountability system after 9/11. there was a lot of discussion, obviously, about the failures in

iraq, but with that large exception, journalists did a remarkable job of uncovering what's going on in the war on terrorism. martha's right that investigative journalism budgets are declining. it's not obvious that they're declining among the major publications that are the sources for almost all of our national security reporting anyway in national security. i tried to get those numbers. the people that i talked to, including editors of some major newspapers, said those resources weren't declining. i'm a little skeptical, but they're not obviously declining. but more importantly, journalists are empowered by new technologies. there's this sense that the government because of new surveillance technologies, digital technologies, knows a lot more about what we, the people are doing, and the government does. but those same technologies make the government more transparent, make journalists more powerful in hooking up with people inside the government, with people across the globe, with ordinary citizens who can watch and report on what they see on blogs. the way that the secret prisons story was able to be broken was

because people started seeing these planes by the cia, private individuals, they started posting it on web sites. this generated a discussion that journalists started watching. so journalists are empowered. whether they're more powerful or less powerful, i don't know. i don't know if the match of secrecy and leaks, i don't know if there is a match. but we have, i think it's important to focus on the other side of the equation. um, so i'll just answer one more question of martha's, and that is, um, do we have the right accountability member niches. the basic structure -- mechanisms. the basic structure, the new ones, is that congress doesn't live up to its responsibilities directly, but it farms them out to other institutions who do o this and do the in a pretty effective way. so congress, basically, created this inspector general that is this very consequential and legitimate actor inside each executive branch agency. it's given more and more of a role for courts in scrutinizing the presidency. the foia regime is another way

that congress delegates out, it should be scrutinizing the president for a lot of reasons it doesn't do a good enough job, so it delegates out to organizations like the aclu. i was just reading today how the general accounting organization, the gao, it's gotten into the business of now scrutinizing the intelligence agencies, it's been given access to classified programs. that's another set of eyeballs inside the presidency. i think those are just going to continue. what we've seen is that the presidency has grown and grown. the reason that charles' world of, simple world is no longerer possible is because the presidency is gigantic. it is unfathomably large and complicated. the department of defense spends a couple of billion dollars every day. it's a huge organization, and it's all over the globe. you can't have complicated organizations like that without lots of systems in place for what's right, what's wrong, when things happen and why.

so that's -- without a lot of watching and accountability as well. and so i think as the presidency grows and it seems to be a condition of modern times that it will grow, i think we'll see growth of these delegations to actors outside of congress, especially into the private sector and inside the executive branch. >> one of the most interesting things you develop here is a notion of checks and balances which is beyond what, i think, the constitution imagines. so here's one that you talk about, and i'd be interested in your views is and everyone else's views about how it works and how well it works. and that is that with the leaking inside the executive branch as a kind of tool that's sometimes quite deliberately advancing the executive branch's policy, sometimes it's people of conscience inside the executive branch, with the leaking you point out there is one way in which the executive branch can handle that, and that is to be more transparent. and so that the check and

balance may actually not just be move/countermove, but move/coupe move/counter, countermove. and i wonder if you think that there's some reason to believe knowing what you know having interviewed so many people inside the executive branch that that might be possible, and i wonder if joe has a view about that, charles has a view? >> if i understand your question correctly, i'm skeptical. the problem with secrecy in the government is that the executive branch determines what's secret. and it has an incentive to overclassify information. and it classifies way too much. that is a true statement, and no one even inside the executive branch would deny there's excessive classification. um, justice stewart famously said when everything is secret, nothing is secret. and the reason that the government is so porous, the secrecy system is so porous and every day on the front page of the newspaper there's classified information. it's a rare day when "the new york times" doesn't report on something in the front section

that's not classified. so the reason there's so much, one reason there's so much leaking is that there's excessive secrecy. i don't think president obama came in committed to making the secrecy system more transparent. he's made very tiny progress. it is a very hard problem, and i don't expect that the government will discipline itself more than it has. so i expect -- but i do also expect that despite its excessive classification that i it is along different -- it is becoming more transparent because things leak, also because it's hard to keep things secret. it's very easy, and very easy's not right, but it's possible for journalists and others to figure things out that's very secret from public indications. so i don't expect -- and, also, the last thing i'll say is we're also about to see all of the government's secrets are on computer networks. and we've seen organizations, cybersecurity has focused thus far on stealing secrets by criminals and governments and

keeping the secrets secret and using the secrets to our advantage. but there are going to be organizations like anonymous and others that start stealing secrets from the government and in a manner akin to wikileaks, pulling them out rather than having them pushed out and exposing them. so i don't think, expect that the government will clean up its act in that regard. >> the business of secrecy is very interesting, and your account, every part of your account is accurate. i'm just, i just regret that we live in a world which has to be described this way, but it is so described. now, on secrecy it is the case that if everything is secret, nothing is secret. with the result that some things have been revealed which absolutely should not have been. and you tell a very good story

about the whole swift thing which "the new york times" exposed. the government was doing nothing illegal, it was doing something very effective. and when exposed, the efficacy disappeared. disappeared. it was a profoundly unpatriotic act. and when challenged, the times said, well, it was there like mount everest. and i found that appalling. it was appalling because it showed no respect for the need for secrecy under certain circumstance. but as you say, if the government makes everything secret, then the notion of some

sense of discretion simply falls away. and there's no doubt that that has happened. >> some of this is new, and some is not. when i was in the carter add m, i used to see the secretary of state's morning briefing book every morning, and what i used to do is play a little game which is how many of these things that i'm reading which are top, top, top secret will be in the press and how long? and within a week probably 60, 70% of it was in the press, and within a few months maybe 90%. the thing that was really interesting was what happened to that other 10%, and some of it never got in. and the question, i think, the difference between -- >> that's a relief. >> nope, it's true. [laughter] there are some things that never get out. and the interesting question, though, is what do you do in the age of wikileaks or the media? one thing you do is the government has to do a lot better job of maintaining the fewer number of secrets classified. i mean, there was no need for a

private to have access to the whole supernet. if you worked for a bank, you were a clerk who was going in mrs. jones' account, and you were only authorized to look at mrs. smith's account, your scream would go blank -- screen would go blank, there'd be a knock on your door from the supervisor. the government very foolishly set up a system that didn't have that. so there's a lot we're going to have to learn to deal with what are sometimes justifiable and important secrets. but it's still possible, and we're just going to have to be a lot smarter about it. >> so i think we'll take some questions now if there are any. yeah. i think you have to come up to the microphone, please. >> um, i'm wondering what the all members of the, every member of the panel might think would be some of the accountability mechanisms that ought to have been in place last fall when the chap in yemen, awlaki, was

executed by the president. and i think if i remember the conversation jack had at the law school a couple weeks ago with noah feldman, that jack -- if i'm correct -- didn't have an objection to the awlaki murder. so let me toss in a question for him, also, so he doesn't feel left out. i'm wondering, you earlier stated that you thought the founding fathers would have been unhappy about the way the current process in this area or has gelled -- in this area has gelled. >> unhappy? unhappy with the way it's gelled? >> yes. i understood you to say that you were, that the founding fathers, the framers would have been unhappy about the way -- >> no. >> okay. then clear up that misunderstanding if you could, thank you. >> sure. so i can speak about the targeted killing briefly. so there's never been more scrutiny probably of any, we're

talking about the killing in yemen of anwar al-awlaki who was an operational leader of al-qaeda in the arabian peninsula. and this is not an easy issue. i don't think it's an easy issue morally or legally. but it's wrong to say that it was lawless and that it wasn't embedded -- i think -- that it's lawless and wasn't embed inside a system of accountability and scrutiny. just to mention some of them, that by news reports and by speeches by government additionals, there was an extremely elaborate process both on the intelligence side and on the law side, inside the government about the circumstances under which he could be killed. there was lots of debate and many targets unrelated to al-awlaki weren't gone after because they didn't think their legal authorities were in line. the congress has, um, is reported on all of these attacks reported to congress either to the, um, intelligence committees or -- this this is all by statu-

or the armed services committees, and the president's authorities are scrutinized there. they don't have formal veto rights, but they can stop angsts if they think them -- actions if they think them inappropriate -- >> [inaudible] >> the covert action is reported to congress in terms of what the action is, and then they're reported, and then what happens in the operations are reported afterwards. moreover, there was a lawsuit brought by the aclu and the center for constitutional rights, and among other reasons that the federal judge dismissed the case was he interpreted the constitution to say as tough as this is, this is an issue that our constitution leaves to the president and congress. congress has shown itself fully capable of pushing back against the presidency when it thinks he's gone too far, and by every indication, congress is onboard with what the president is doing. now, there's a separate issue about traction transparency, bus of being embedded in a system of accountability, i do believe that it is.

>> hi. um, history shows that this country and probably almost any country tends to overreact when it feels threatened. a case in point that's pertinent today is the loyalty of controversy that engulfed harvard and other institutions in academia in the 1950s and the president was very brave and spoke out and actually rejected federal money because those students were required to sign loyalty oaths. so i guess my question is, don't you think that we have also overreacted in innumerable ways that you may include in your book or that are below the radar? so i was going to do research in a public school under contract to the department of education, but the department of education under bush requires a full

security clearance investigating the character, conduct and loyalty to the united states of any contractor who sets foot in a school. this is partly a redefinition. we used to think of national security, and now we call it homeland security, and we pull in all kinds of things that are totally unrelated to national security. so my question, again, is don't you think on the whole the government, as it has in the past, tends to overreact to these threats? >> overreacting is hard, it's hard to know whether the government -- we certainly, i would say this, and at the beginning of every major war presidents have taken steps -- this is true of lincoln and roosevelt and bush among others, that were later regretted by the country. the problem with that is that we don't really know at the time whether there's an overreaction. and one of the reasons for these

actions that we later come to sometimes regret is that the president is responsible for the safety of the country. there's a public demand for action to meet the threat that's not well understood. it is hard to overstate how blind the bush administration was after 9/11. so it's almost certain there were overreactions after 9/11 because we just didn't understand the threat fully. and there were certain things that the nation did that have been regretted. but i don't know that there's any way to wring that off the system. we have the executive branch is responsible for the security of the nation, and in a situation where there's a lot of uncertainty and a serious threat that's not understood, presidents will do what the public demands, and that is do as much as it can to keep the country safe. part of the process i've described is a process of calibrating that over time, figuring out where we went too far because we have new information and because other institutions engage with the presidency and pushed him back to a place that the country was

more comfortable with. i don't think it's possible to wring how out overreaction or extreme reaction at the beginning of a cry -- crisis. >> so i think that there is no question that the bush administration after 9/11 put the country in terrible jeopardy of losing our constitutional effectiveness. but what is one of the most powerful parts of your story is that the forces of checks and balances fought back and fought back very successfully not only in their traditional form, but also in some new forms. and in that sense i think that the story that you tell is very different than jeff stone's story in his book, "perilous times," which looks at the overreaction of this country with regard to restricting speech during earlier wartimes. jeff stone's argument is even decades after the war the restrictions on speech persist. your story is that it took a

little while, but actually institutions and practices of accountability have developed that dramatically alter the possibility of an executive branch doing what happened initially in the bush administration. and that's a very different story. there will be overreactions, but the question is, will the system be able in madisonian terms or other terms be able to respond? and the story here is, absolutely, and with some surprising players and some familiar players. >> i think one should somehow moderate the use of overreaction. one shouldn't overreact to overreaction. when you think of what happened on 9/11 or the very similar reaction after pearl harbor, very similar reactions after the firing on fort sumter there had

to be reaction. there had to be very strong reaction, and jack just described this as the time goes on, that begins to moderate, and you begin to see how much of that does not need to be done and how much has to be kept. but it is not surprising and i think not even a bad thing that on the first blow the reaction is to shut down as much as possible and then slowly to see what is too much. i don't think that's an overreaction, i think that is a prudent, a prudent result. if somebody has been hit by a truck and they end up in the emergency room, first thing the doctors will do is everything. and then they will see, well, as a matter of fact, this system's

working, and the heart's all right and so on, and they'll begin to pull in. but you wouldn't want to have a less comprehensive reaction at the first when you don't know quite what you're facing. >> i'll just quickly add that i would say there was an overreaction, but what's interesting to me is it wasn't as much of an overreaction as in world war ii. and what's more, if you ask about the pendulum that swings back and forth between liberty and security, it didn't swing as far. and one of the reasons, which is quite fascinating, is in world war ii you had the terrible core mat sue case. so you brought in the institutions, the supreme court, and it came out with the decision that it was all right to interjapanese-american

citizens. bad decision. so i think there's been a dampening of -- you know, it's not what dr. johnson said about the dog walking on its hind legs, it's not remarkable that it walks on its hind legs, it's remarkable that it does it at all. and this is, you're seeing, i think, in this case the american political system what's remarkable is not that it overreacted, but not as badly as we did during world war ii. >> hello, i'm from the department of political science at brown. thank you so much, professor goldsmith, for your excellent talk and very insightful book. i just had a question about a very interesting paradox that you brought out in your book and talk. there seems to be a tension on the one hand between the accountability function that constitution institutions serve such as congress and the courts. dean minow also mentioned the gao and the inspector general constraining the presidency.

but on the other hand, the paradox is that they also serve to legitimate what the presidency is doing, to increase prick support for its -- public support for its policies. so i wanted to ask you if there's a tension between the accountability function and the legitimating function. because if these institutions are legitimating what the administration is doing, it denies the case of the policy of interring japanese-americans. ultimately, perhaps, unjust policies by the presidency. thank you. >> that's a very good question. um, so i guess it's fair to call it a paradox that the institutions of constraint are also the institutions of empowerment. what accountability means at bottom is that someone's actions are scrutinized by another perhaps adversarial institution, they're scrutinized, the executive is forced to account

for its practices to explain and justify them, and then another actor is able to decide whether it approves or doesn't approve, wants to punish or alter the executive's action. that's what i mean by accountability here. what's happened, it's possible that in 20, 30, 40 years, i can't predict the future, that we'll look on the current settlement, and we'll say, boy, that was a mistake, we shouldn't have been doing that. i don't think that's going to happen in this case because we've had a full-blown engagement by the public, by the courts, by the congress on most of these issues. and with very few exceptions the other branches of government and civil society did not bless what the executive was doing. in some situations there were very sharp pushback, for example, on interrogation. other times there was modest pushback like military commissions. other times there was empowerment of the presidency like on surveillance. and there's extraordinary support.

a washington post/abc poll said 70% of americans now support detaining enemy combatants in gitmo, including a majority of self-described liberal democrats. that kind of consensus, again, we may regret that one day, but it is a product of a system that has traded off constraint for legitimacy. those things go hand in hand, i think. and in the short term, i think it's achieved remarkable legitimacy. whether we regret it in 10-20 years, i tend to doubt it, but i can't prove that. obviously. >> we have time for -- [inaudible] >> okay, great. >> kind of wanted to follow up on that last question. um, on the subjects of accountability, i'm curious what your thought, the whole panel's thoughts are on the whole issue of whether the farming out of regulatory or, um, the checking, the checking and balancing authority of, say, congress or the jewish judiciary to other a,

newer actors or to the press, for example, through foia requests, aclu, gao, professor minow mentioned. i'm wondering about the likelihood of that leading to -- the panel seems to agree with one exception that the results have been pretty favorable so far from this latest batch of cases. um, i'm wondering about the future, though. i mean, if we look at, for example, in the financial industry there was, um, there were many regulators that were charged with overseeing and protecting the safety of the system. and what we saw with those regulators is that over time they became captured. there's the phenomenon of regulatory capture in which the authorities became, came to hold the philosophies, the beliefs of the organizations that they were trying to regulate. and that seems to be even more

of an issue if you have, for example, the inspector general of an agency being -- for example, the highest person who's regulating that agency. so i was hoping, sorry my question's going on rather long. hoping you could touch on some of those issues. >> someone want to take a shot? i was confused but, martha? >> regulatory capture, of course, is a constant concern with regard to any kind of regulatory agency. i have to say that my own impression of the operation of inspectors general is that so far i haven't seen capture. i think partly because they are rewarded for their independence, and they develop an identity in relationship to one another. so their affiliation and their attachment is to the role of inspector general across agencies. and so i think it's, actually, a rather clever device, and i say that, um, from firsthand experience being surveyed by an inspector general, that capture has not been --

>> or people inside the executive branch think that inspectors general are captured by congress. >> well, there you go. >> but -- >> that's okay. they're the bosses, actually. so i think that capture is a problem, but i think one of the things we've seen in some of these new institutions created by congress, signed by the president is actually maybe not a machine that will go of itself, but more devices that actually deploy the motives of self-interest, of success, that produce adversariness, that produce disclosure than i would have predicted. >> last question. >> i'm reading a book by ray monday williams -- raymond williams which suggests that the state or government tends to be captured by one or another of the major societal classes, social classes. it's up been suggest -- often

been suggested that the united states' government has been captured by what might be euphemistically called the corporate class, particularly including the corporate managerial and stakeholder classes. to what extent would you say that the, the patriot act and the national defense authorization act and these kinds of crackdowns on civil liberties have been motivated in the interests of that same corporate class? >> so i don't think it's actually fair to describe the national defense authorization act, at least the parts about counterterrorism, as a crackdown on civil liberties. in fact, there are several protections for civil liberties put in that statute. but, um, it is a worry that we live in an age of indefinite war

in which there are large defense and military bureaucracies that are tied into large corporations that benefit from these firms, and i am constantly worried about -- and i do think this is something everyone should worry about -- about the size of the national security bureaucracy and the defense bureaucracy and the extent to which they guide national security. those institutions shape our national security policies. i don't have a prescription to make it smaller, i don't know how untoward their influence is. i just think it's something we should all be worried about. >> well, you should note one thing, these bureaucracies are so large in part because they are deliberately increased in size so that be counterbureaucracies. and when you have three or four counterbureaucracies, you're going to have, of course, three times as many bureaucrats. and that has happened.

>> thank you very much. thanks to my distinguished panel. thank you all for coming. i appreciate it very much. [applause] >> is there a nonfiction author or book you'd like the see featured on booktv? send us an e-mail at booktv@cspan.org. or tweet us at twitter.com/booktv. this weekend on american history tv, harvard professor john stopper on the civil war and the movement to end slavery. >> one of the fascinating aspects of abolitionism or the abolitionists is that when lincoln gives his inaugural, the self-described abolitionists are still a minority, tiny minority, and they're still despised. what transforms abolitionists into respected, prescient critics of the american scene is fort sumter.