In national security matters (including foreign affairs, the collection of intelligence against foreign threats, and the use of force against foreign threats) the framers ingeniously intended there must be an accountability nexus between the decision-makers and the American people whose lives are at stake. That is to say, these matters are political in nature, not legal. The checks in the system — which I believe in deeply, though they have been out of favor since World War II — are primarily political: (a) the ballot box and (b) the competing powers of the executive branch and congress to conduct operations, oversee them (and, to some controversial extent, regulate them), and finance them. The federal courts were not meant to be a significant player (or, perhaps, a player at all) in this equation. They are not institutionally competent to do so and, more importantly, they are not accountable to Americans. When you "legalize" or, as I think Jack puts it, "judicialize" this quintessentially political arena, you are making at least two fundamental errors. First, you are shifting responsibility for protecting our citizens and our system from the most accountable to the least accountable actors, therefore ensuring that life-and-death decisions will be made based not on a self-determining people's sense of what should be the balance between security and liberty, but on an insulated elite's assessment of what its pieties require. (I say "its pieties" rather than "the law" because judges here are applying abstract principles like "due process," which are more than elastic enough for them to impose their subjective sense of right and wrong — which tends to be very subjective). Second, you are unrealistically assuming that the endlessly variant forms of threat posed by people who are not members of our body politic and not subject to our laws can somehow be regulated by antecedent legal rules in which those people are given many (if not all) of the presumptions and rights of Americans accused of crimes.You can order a copy of Goldsmith's book by clicking on one of the Amazon links at the top of this post.
Reviewers focus on completely different aspects of the book's arguments and sometimes it seems that they are not reading the same book. To get the full argument which is not, as some would claim, an indictment of the administration, read the whole book.
