Questions about balancing the executive branch’s role in fighting terrorism and preserving civil liberties has led to confusion in the ranks of counterterrorism officials, a former Justice Department official told a Senate hearing Tuesday.

The executive branch is under tremendous pressure to take drastic actions to prevent the next major terrorist attack, but this often clashes with fears within the intelligence community about going beyond the limits of the law and ending up in legal proceedings, said Jack Goldsmith, a former head of the Justice Department’s Office of Legal Counsel.

“This tension between fear of attack and fear of violating the law lies behind the Bush administration’s legal policy decisions about the Terrorist Surveillance Program, the Geneva Conventions, military commissions, interrogation, Guantanamo Bay and more,” Goldsmith wrote in a statement distributed at the hearing. “Trying to manage that tension is very, very difficult,” he added in his testimony.

Daily terrorist threat reports incite fear within government officials who read them, especially considering the scarcity of actionable intelligence detailing who will strike, when or where, he said. As a result, the executive branch takes an aggressive posture toward fighting terrorists.

This posture will likely be akin to stances taken by future presidential administrations, Goldsmith added.

“For generations the presidency will be characterized by an unremitting fear of devastating attack, a preoccupation with preventing the attack, and a proclivity to act aggressively and preemptively to do so,” Goldsmith said in his written testimony. “Every foreseeable post-9/11 president, Republican or Democrat, will embrace this attitude just as presidents Lincoln, Roosevelt, Kennedy and others did in time of war or emergency.”

However, uncertainty about how pre-Sept. 11 laws are applied in the post 9/11 world can lead counterterrorism officials to act reluctantly. The CIA is so fearful of retroactive discipline, agency leaders encourage their officers to purchase professional liability insurance to pay for any future legal expenses.

Goldsmith recommended eight actions the government can take to clarify laws and provide mechanisms that invigorate accountability:

• Presidents and attorneys general should insist the Office of Legal Council follow traditional norms and practices that help it compensate for a lack of oversight, public accountability and subtle pressures from the White House.

• The executive branch should expand the number of lawyers included in legal deliberations of national security matters

• The executive branch should engage Congress on national security debates, encouraging public debate and effectively spreading accountability for government decisions and actions.

• The White House should focus less on expanding its power and work more with other government institutions to avoid drawing the suspicion of the public, Congress and courts.

• Congress should execute more oversight of executive branch decisions.

• Congress should update laws relevant to national security and avoid pushing hard and controversial counterterrorism questions off onto the courts.

• Congress should avoid placing vague legal prohibitions on the intelligence community and military, especially when they are enforced by criminal penalties.

• Congress should confirm nominees for top legal positions in the executive branch as quickly as possible.

Matthew M. Johnson can be reached at mjohnson@cq.com.