Gavel Grab

Strong bipartisan support for President Obama’s counterterrorism policies can be explained in part by success of the constitutional system of checks and balances, including the federal courts, a Harvard law professor writes.

“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,” Jack Goldsmith contends in a Washington Post op-ed. He worked in the Defense and Justice departments during the administration of President George W. Bush.

When highlighting the role of the courts, Goldsmith includes the Supreme Court’s ruling that Guantanamo Bay detainees may challenge their detention in U.S. courts; its striking down Bush’s military commissions, which were then revised by Congress; lower court review, and approval, of many Guantanamo detentions; and a special federal court’s supervision of the warrantless surveillance program.

Obama “has continued most of Bush’s policies because other institutions pushed back against Bush’s excesses and then blessed the changed policies,” Goldsmith writes. When Obama pushed too far, he too “felt the sting of these checks.” Goldsmith concludes, about the policies of the Republican president and his Democratic successor:

“[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.”