Faculty Bibliography

Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed—endless detentions, military commissions, state secrets, broad surveillance, and more—are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints—enforced by congressional committees, government lawyers, courts, and the media—that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable. These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.

The author's duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do...legally. The author took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed. The author is a conservative lawyer whose unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. This book provides his analysis of parallel legal crises in the Lincoln and Roosevelt administrations, which shows why Bush's apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.

In this book, Jack Goldsmith and Eric Posner argue that international law matters, but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. This book has important implications for debates about the role of international law in the foreign policy of the United States and other nations.