Power and Constraint: The Accountable Presidency after 9/11. By Jack L. Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp.

Power and Constraint: The Accountable Presidency after 9/11. By Jack L. Goldsmith. New York: W. W. Norton and Company, 2012. 336 pp. Books on the presidency often breathlessly bemoan a cult of presidential power, lament that the separation of powers is at an end, and claim that executive power is unbounded. In a highly nuanced and thoughtful treatment of the post-George W. Bush presidency, Jack Goldsmith depicts remarkable moderation in today's national security executive. He tells a story of new developments, which "belie the apocalyptic claims that we are living in an era of unrestrained executive power." The result is not "Madison's nightmare" (see Peter M. Shane, Madison's Nightmare: How Executive Power Threatens American Democracy [Chicago: University of Chicago Press, 2009]), but, rather, that "the father of the Constitution would smile" (pp. 252, 243). In Power and Constraint, as in his earlier The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton and Company, 2009), Goldsmith rejects the aggressive and often unilateral counterterrorism programs of the early Bush administration, and praises the pushback that moderated those policies and gave them firmer legal footing. After the presidential excesses following 9/11, various institutions "pushed back harder against the Commander in Chief than in any other war in American history," which, on balance, was "all very healthy for the presidency and for national security" (p. 241). Both of Goldsmith's works owe much to Arthur Schlesinger, Jr.'s The Imperial Presidency (Boston: Houghton Mifflin, 1973), which, at times, is surprisingly friendly to executive power. And with the theme that constraints ultimately "strengthen the presidency and render it more effective" (p. xv), he channels the insight of Harvey C. Mansfield, Jr.'s Taming the Prince: The Ambivalence of Modern Executive Power (New York: The Free Press, 1989) that executives draw strength by being subordinate to law. Goldsmith is a professor at Harvard Law School, and his legal roles during the Bush administration were with the Department of Defense (2002-03) and the Office of Legal Counsel (2003-04), but the account here resembles political history as much as formal legal analysis. Although everyone from former Vice President Dick Cheney to the ACLU expected that the new Obama administration would dramatically change the Bush counterterrorism programs, most of them had been tempered to such an extent that the Obama administration kept virtually all of them. "I would distinguish between some of the steps that were taken immediately after 9/11 and where we were by the time I took office," President Obama said in March 2009 (p. 39). The Obama administration today regards counterterrorism as an armed conflict rather than a criminal matter, engages in indefinite military detention, has initiated military commission trials for war crimes; shops for the best forum in which to prosecute terrorists; continues to operate Guantanamo Bay, has not changed executive branch positions on habeas corpus rights for detainees abroad, still delivers up prisoners to other countries for interrogation; has increased secret government surveillance, and has radically expanded a global regime of targeted killing. In 2010, the American Civil Liberties Union (ACLU) warned that Obama "will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration." Although the current administration made changes to Central Intelligence Agency interrogation and black sites, Goldsmith notes that the ACLU prediction "is basically what has happened" (p. 19). Rejecting the views that we are "in an age after the separation of powers," or that "the legally constrained executive is now an historical curiosity," Goldsmith documents "a remarkable and unnoticed revolution in wartime presidential accountability. …