Scott W. Johnson does not wait for a predawn alarm. He wakes up at 5 a.m. because his audience expects fresh posts. At 59, this Highland Park native works as a corporate attorney, yet readers know him as a conservative blogger at powerlineblog.com and call him one of the most influential voices online.
Jack Goldsmith wrote Power and Constraint, a book about executive power after 9/11. He served as a legal adviser during part of the first term of President Bush, so he knows the tools the White House used in counterterrorism. His book traces the pushback against anti-terrorism policies under the Bush Administration and the constraints that followed.
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Goldsmith offers two theses. His first thesis says the pushback built a consensus, which explains why President Obama kept many policies in 2009. His second says we should feel fine about the accountable presidency that resulted. Mirengoff doubts both points, but he still finds the book compelling reading because it tells a strong story about terrorism policy.
Power Line lives at powerlineblog.com, where Scott Johnson writes alongside John Hinderaker from the Twin Cities and Paul Mirengoff, a retired attorney and blogger in Washington D.C. The trio won Blog of the Year from Time magazine in 2004. Their reporting sent Dan Rather of CBS off to HDNet.
The site kept its influence in the conservative debate. Three years ago, the National Republican Senatorial Committee named it one of the five best-read conservative blogs. The blogosphere then changed, and in March, Alexa.com placed powerlineblog.com 22nd in its traffic ranking.
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Critics push back too. On June 5, Andrew Sullivan of The Atlantic Monthly attacked Johnson for saying a Turkish-American should lose his citizenship after the aid flotilla clash with the Israeli naval blockade. Sullivan called tribalism the only constant moral principle of that brand of conservatism featured on powerlineblog.com.
Johnson also breaks with his own side. After he watched the 2008 Minnesota U.S. Senate recount, he said the election wasn’t stolen. In his view, Norm Coleman made strategic mistakes, and Al Franken had strong legal support. Johnson still stays partisan against Keith Ellison and the Tarek ibn Ziyad Academy, a charter school in Inver Grove Heights whose sponsor is an Islamic nonprofit and humanitarian relief organization. He says he holds himself to intellectual honesty, and W. W. Norton & Company publishes the Goldsmith book that Mirengoff reviewed on powerlineblog.com.
Preserving Intelligence and Counterterrorism Secrecy
Goldsmith says secrecy matters in wartime because it keeps the enemy from learning government plans and operations and protects candid deliberation. After 9/11, journalists took the opposite view and worked at piercing the government’s secrecy system. Soon The Washington Post put top-secret counterterrorism programs on the front page.
Reporters exposed international financial transfers, data-mining techniques, interrogation techniques, CIA renditions, and secret prisons. General Michael Hayden, who held top intelligence leadership jobs, says very few intelligence secrets stay hidden. The Under Secretary of Defense for Intelligence told Congress that leaks of classified information put national security at risk.
Lawfare, Intelligence Leaks, and Rules of Engagement
Goldsmith feels calm about this, but Obama does not. Mirengoff replies that the media did not need to expose the secrecy system, because Congress can demand accountability without the press. He thinks public indifference keeps lawmakers quiet, and few Presidents prosecute leakers.
Lawfare puts military lawyers at the center of military decision-making. They review operational plans, join commanders in the field, and flag proper targets. After 9/11, the army placed two or three lawyers with every army brigade and sent others to special operations forces down to the battalion level.
These lawyers apply the CNN test and write rules of engagement that mix political and diplomatic considerations with law. Goldsmith finds that lawfare raised U.S. casualties. A lawyer even stopped a strike on a building because civilians were likely inside, and Mullah Omar of the Taliban escaped. Fear of retroactive critics makes soldiers in the chain of command show hesitation, and that hurts effective warfare.
JAG Influence, Executive Authority, and Military Lawfare
Warrior-lawyers, known as JAGs, built this influence. General Mark Martins says law holds human experience about right action. Mirengoff doubts that, because drone strikes can kill suspected terrorists without legal process, yet interrogators cannot slap captured detainees.
The JAGs saw the Bush Administration as an affront, so they used leaks, testimony, and help from human-rights groups to fight Bush policies. They also pushed the military toward customary international law and wrote legal and policy manuals. Mirengoff says they forgot civilian control of the military and that the Commander-in-Chief is the chief law interpreter of the executive branch.
Goldsmith stays unsure about the cost-benefit balance of avoiding blowback. Mirengoff answers that the elected executive power should decide, with judicial review as the check, and not military lawyers. In the war on terrorism, he says, the President should aim to beat the enemy first.
Judicial Review, GTMO Decisions, and Interrogation Methods
The Supreme Court limited the President in several landmark decisions, and Goldsmith credits the GTMO Bar for winning them against precedent. He ties those rulings to press reports and pressure from military lawyers. Mirengoff adds that judges could not check the press reports and did not see the JAGs as an interest group.
CIA agents gathered useful facts from detainees, and those facts helped stop terrorists from hitting the homeland. The Department of Justice approved their methods in advance. Still, about twenty cases went to prosecutors for possible criminal prosecution, and only one led to charges.
CIA Accountability, Risk Aversion, and Commentary at powerlineblog.com
Goldsmith notes that the CIA sought approval for its detention and interrogation mission and cooperated with investigators. Then Attorney General Holder reopened cases, and agents faced a grand jury again. That process demoralized the agency. Goldsmith says the risk aversion that followed guards against future abuse, and he tells the human-rights lobby so.
Mirengoff warns in his review on powerlineblog.com that the CIA may act too slowly in the next threat environment. Goldsmith also claims the fight created a consensus that led Obama to keep most Bush policies in 2009. Mirengoff questions that causal relationship and notes that a liberal Democratic President may not have faced the same pushback.
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