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Has Obama Upheld the Law?

President Obama and John Brennan, then assistant to the president for homeland security and counterterrorism, on a conference call about the situation in Libya, Martha’s Vineyard, August 2011
Pete Souza/White House
President Obama and John Brennan, then assistant to the president for homeland security and counterterrorism, on a conference call about the situation in Libya, Martha’s Vineyard, August 2011

1.

Over the past decade, Charlie Savage has become an indispensible reporter of US counterterrorism. He won the 2007 Pulitzer Prize for his articles on presidential signing statements, an obscure legal device the George W. Bush administration frequently used to reject legislation that in its eyes encroached on the president’s power. Savage’s first book, Takeover, was a broad study of executive overreach by the Bush administration.1 In Power Wars: Inside Obama’s Post-9/11 Presidency, Savage pursues the same themes in the Obama administration. Power Wars is a long and comprehensive book, covering in intricate detail nearly every major issue in Obama’s national security policy: detainees, military commissions, torture, surveillance, secrecy, targeted killings, and war powers. Its behind-the-scenes story will likely stand as the definitive record of Obama’s approach to law and national security.

Savage offers a distinctly lawyer’s-eye view of his topics. The major participants in his story are not politicians and planners, but top lawyers in the White House, the Justice Department, and the security apparatus—what Savage calls the “national security legal-policy team.” They work mostly behind the scenes, veiled by lawyer–client confidentiality; no more than half a dozen of the more than fifty lawyers described in the book have names that readers are likely to recognize. Their domain is the arcane network of laws that constrain the president as he wages what continues to be, at least in US eyes, an endless war against al-Qaeda and its offshoots.

One reviewer has complained that much of Power Wars will interest national security professionals and law students but not a broader audience.2 That misses the real importance of Savage’s work. His main interest is presidential power in its perennial struggle with Congress and the courts. Ultimately, the stakes are high: whether we will continue to have, in John Adams’s words, “government of laws, and not of men.”3

Savage focuses on executive branch lawyers because they play a central part in restraining the presidency—or not restraining it, as the case may be. Lawyers are trained to pose two questions whenever they interpret laws: What did the legislature mean, and what would the courts say? Metaphorically speaking, Congress and the courts have automatic stakes in the deliberations of any competent lawyer, including lawyers for the executive branch. And if the president’s lawyers tell him that a policy is illegal, he will have a hard time carrying it out. Even an adventurous president willing to say “Do it anyway!” would find too many other officials who won’t sign off on an illegal action. If, on the other hand, the lawyers are yes-men and women, the result may be an “executive unbound.”4 John Ashcroft nicknamed Bush administration lawyer John Yoo, of torture memo fame, “Dr. Yes.” It was not a compliment.

Savage delves deeply into the administration’s legal debates about the War Powers Act during the Libya intervention in 2011, as the campaign approached the sixty-day deadline after which the act requires presidents to get approval from Congress. But he never touches on the decisions to launch the intervention in the first place and then escalate it into a de facto (even if unacknowledged) war to bring about regime change. This was surely one of the biggest blunders of Obama’s foreign policy: the campaign left Libya a fractured and chaotic haven for terrorists, and the escalation probably doomed any future UN-backed humanitarian interventions. Here, focusing on the lawyers rather than the planners seems mistaken.

Even in the Libya case, though, the legal story matters. Savage depicts lawyers scrambling for a legal theory to avoid bringing Libya before a skeptical Congress at a moment when France and the UK were counting on US military help. Tellingly, the lawyers didn’t think the solution they eventually came up with was the best reading of the law, merely that it was “legally available”—a dubious category that apparently means little more than “not laughably off the wall.” It was the closest they ever came to acting as Dr. Yes. Readers might well wonder why legal arguments that are not right but merely “available” deserve any of the respect we accord to law. And one can’t help wondering whether some congressional skepticism was exactly what was needed.

On other issues the legal story clearly deserves emphasis, because the contours of the law critically shaped the policy. This is most notable in decisions about who can or cannot be targeted for drone strikes. Lethal drones are weapons of war, not of law enforcement, so the questions of where and with whom the United States is at war are decisive. Obama’s lawyers interpreted Congress’s 2001 authorization to use military force to apply not only to al-Qaeda but also to “associated forces”; but not every jihadist group is associated with al-Qaeda. In 2010, Jeh Johnson, then general counsel of the Defense Department, concluded that al-Shabaab in Somalia was not an associated force. He “stunned his Pentagon colleagues” by countermanding a strike that Special Operations Forces wished to launch against Shabaab militants. This was an example where the law made a real difference.

2.

Barack Obama took office promising to end the perceived lawlessness of the Bush administration, manifested most vividly in the torture of detainees at CIA black sites. True to his promise, on his third day in office Obama issued an executive order ending torture and revoking all the Bush administration legal opinions that authorized it. His supporters were elated.

Three weeks later, though, Obama’s lawyers entered a California courtroom and, to the surprise of the judges, defended one of the Bush administration’s most aggressive tactics, the invocation of state secrets, in order to dismiss a lawsuit that might expose ugly facts about CIA cooperation with other nations in the program of rendition and torture. Much of the cheering stopped. As it happened, Savage tells us, nobody had informed the president about the Justice Department’s decision to maintain the Bush legal position, and Obama was furious. But evidently he got over his fury, for the Justice Department continued to assert the state secrets defense in that case and all other pending cases where the Bush administration had invoked it.

Gradually, other points of continuity between the national security policies of Bush’s second term and the Obama administration became evident. Obama revived the military commissions charged with conducting trials of detainees. He continued to classify the struggle against al-Qaeda as a war to be fought under military rules. He also increased drone strikes, maintained the NSA’s secret surveillance programs, and prosecuted whistleblowers with greater zeal than any administration in history. What happened?

Savage offers an explanation. Obama’s supporters on the left thought he was a civil libertarian, but they were wrong. What Obama cares about, Savage argues, is not civil liberties, but the rule of law. Confusing the two is understandable, for both are central to American constitutionalism. But they are fundamentally different. Civil liberties are substantive rights; the rule of law is about legal legitimacy. What Obama’s team aimed to do was provide a firm legal foundation for his policies, including those that civil libertarians oppose—policies like preventive detention, targeted killings, and extensive surveillance.

Savage’s diagnosis rings true in many ways. Again and again, we read about the Obama lawyers agonizing over legal arguments and sweating to get them right. That’s the rule of law at work. Obama and his team wanted, as a matter of principle, to avoid Bush’s swashbuckling use of the commander in chief’s authority, and they sometimes bent over backward to find well-grounded alternatives.

Mostly they found them. Savage quotes CIA Director (and former Deputy Homeland Security Adviser) John Brennan: “I have never found a case that our legal authorities, or legal interpretations that came out from that lawyers group, prevented us from doing something that we thought was in the best interest of the United States to do.” Savage raises a very good question, though:

If the end result was often the same—the president can do something specific he wants to do—does it make a difference if his lawyers got there by tossing off a five-page memo or by agonizing through a hundred-page memo?

The answer to this seemingly rhetorical question is yes. Taking careful account of legal process in making decisions rules out the most extreme and patently illegal options long before officials ever get to the stage of formally asking for a legal memo. Meeting legal standards disciplines and shapes official debates over what actually is in the national interest. That makes it less surprising that the option ultimately chosen usually gets the approval of legal advisers. The more cynical answer that the legal process makes only a fig leaf’s difference is largely untrue.

However, Savage himself reports plenty of cases that don’t fit his neat dichotomy between civil liberties and the rule of law. For one thing, civil liberties concerns did drive some important decisions. The administration took enormous political flak for granting Miranda rights to Umar Abdulmutallab, the “underwear bomber”—a civil liberties victory that also turned out to be an intelligence success, since Abdulmutallab continued volunteering information after being informed of his right to remain silent. The administration’s unsuccessful efforts to try the September 11 suspects in civilian court rather than in the shambolic military commissions were at least partly based on respect for civil liberties.

In a few striking cases, however, the administration took positions that violated both civil liberties and the rule of law. Chief among these are Obama’s refusal to hold torturers accountable, his plans for Guantánamo, and his administration’s use of secret law, coupled with unprecedented vigilance in going after leakers. These may be exceptions rather than the rule, but they are exceptions that matter.

3.

The first and most obvious deviation from the rule of law was Obama’s decision not to pursue accountability for the Bush administration’s adventures in torture. It’s understandable that Obama would shy away from even the thought of investigating his predecessors. The investigations would have derailed everything else on the president’s agenda in order to pursue a matter on which many Americans believe Bush was right. With Bush boasting in his memoirs about enhanced interrogation, and Dick Cheney accusing Obama of making America less safe, investigations would have reinforced the self-fulfilling Republican claims that the torture debate is a partisan issue, rather than what it really is: a rule of law and human rights issue.

But what about accountability for those below the top leaders? It came to nothing. Attorney General Eric Holder appointed a prosecutor to look into the hundred cases where interrogators went even further than the torture memos permitted, but in the end he dropped them all. And when the Justice Department’s internal ethics watchdog recommended professional discipline for two lawyers who wrote the torture memos, a DOJ official downgraded the finding of unethical behavior to mere bad judgment. Lawsuits against officials and contractors involved in the torture program were either thrown out because of the state secrets defense or dismissed on grounds of official immunity.

Obama avoided even lesser forms of accountability. No CIA official was fired or demoted for participating in the rendition and torture programs; whatever his own views on accountability, Obama did not want to “lose” the CIA. Early in the Obama administration, some voices called for a truth commission to investigate Bush-era torture. Among others, Admiral Mike Mullen, then chairman of the Joint Chiefs of Staff, favored such an “after-action report” (the phrase “truth commission” was toxic); and after a White House lawyer drafted a proposal to establish a bipartisan commission, most members of Obama’s national security cabinet seemed ready to support it. But the president rejected the proposal, and “one by one, everyone who had liked the idea ten minutes earlier reversed course and told Obama he was right.” That, Savage shows, was the end of accountability.5

Obama’s decision to “look forward, not back” was politically understandable, but it is an obvious blow to civil liberties and human rights: without accountability for past abuses, deterrence of future abuse is undermined. The decision is equally an affront to the rule of law—official impunity is, always and everywhere, the archenemy of the rule of law.

Camp X-Ray, where the first prisoners from the war in Afghanistan were held, Guantánamo Bay, Cuba, March 2002
Lori Grinker/Contact Press Images
Camp X-Ray, where the first prisoners from the war in Afghanistan were held, Guantánamo Bay, Cuba, March 2002

4.

At one point, Guantánamo held 780 prisoners, but the Bush administration eventually transferred more than five hundred to other countries, including their home countries. When Obama took office, 242 prisoners remained. Some were already cleared for release, or likely to be cleared. Others, like the September 11 suspects, were slated for criminal trials. That left a third group who were deemed too dangerous to release but could not be tried, either because they had committed no crime or because the evidence against them was too thin or too tainted by torture. All were labeled “law-of-war” detainees, on the theory that they are analogous to POWs: captured enemy fighters who can be held for the duration of hostilities. (They do not have formal POW status, which is reserved for regular members of military forces and militias associated with them.)

Releasing those cleared by review boards or courts would be an obvious victory for civil liberties and human rights, most strikingly in the case of the Uighur prisoners—Chinese Muslims who had never been anti-American but who could not be returned to China for fear of torture and other punishment. Early on, the Obama administration hoped to resettle some of the Uighurs in the US, but it retreated in the face of Republican outrage at the very thought of the government importing “terrorists” to US territory. Savage criticizes the administration’s spineless decision, which gave a signal to congressional Republicans that Obama “could be pushed around on Guantánamo issues.” (The Uighurs were eventually resettled elsewhere.)

In fact, though, there had been no intention of closing Guantánamo on grounds of civil liberties. All Obama proposed was moving the detainees from Guantánamo to the Thomson Correctional Center in Illinois. Literally, that would “close Guantánamo,” but with no effect on the liberties of its inmates other than moving them to the harsh conditions of a maximum security prison. Even that dubious plan was derailed by the wave of terrorism panic following the failed attack on an airplane by the passenger Abdulmutallab.

The plan also had nothing to do with defending the rule of law. On the contrary: it would violate the principle of “no punishment without a crime,” the most basic of all the principles of rule of law. The Thomson plan would have moved men never convicted of a crime from a prison camp to a punishment facility. Guantánamo is still a grim place, but over the years conditions for its inmates have improved greatly; it seems likely that Thomson would be worse. Sanctimoniously, Obama insisted that Guantánamo is “not who we are as a country.” But he never explained why locking the detainees away in prison cells qualifies as who we are as a country. Under the laws of war, among them the Geneva Convention, POWs are to be detained in nonpunitive conditions. If these men are truly “law-of-war detainees,” the same should be true for them.

Of course, the real motive for the proposed move was that the prison at Guantánamo is a serious embarrassment for US foreign policy, causing difficulties with our allies and used by enemies to recruit anti-American militants. Yet nobody has ever explained how moving the men from Guantánamo to Thomson would have solved this public relations problem. Did the administration think jihadi recruiters are too thick-headed to notice that the prisoners would still be prisoners? Social media would have quickly turned “Thomson” into a rallying cry just as potent as “Guantánamo.”

To be sure, Obama was assuming that by the time the Thomson prison was ready only a handful of detainees would be left; he had not counted on Congress clamping down on any effort to release Guantánamo prisoners. There have been other delays in the continued effort to transfer the prisoners—some caused by a defiantly insubordinate Pentagon,6 some by Justice Department litigators who continue to fight with undiminished zeal every case for habeas corpus of a detainee, and some by instability in Yemen, where it had been hoped some prisoners could be repatriated.

Recently, after a long hiatus, nine were released in January and eight more are slated for release; if that goes through, Obama will have transferred 145 Guantánamo inmates. At its present rate of clearance (fifteen clearances out of eighteen cases decided), the Guantánamo Periodic Review Board might be expected to clear thirty or more of the remaining detainees. That would leave the ten defendants to be tried by a military commission, seven “high value” detainees, and perhaps a dozen additional prisoners as the irreducible Guantánamo core.7 They will remain prisoners under the law of war in what still appears to be a forever war.

5.

In a 2013 congressional hearing, a representative asked Robert Litt, the top lawyer for the Office of the Director of National Intelligence, whether he really thought the NSA’s program of bulk surveillance of telephone calls in the US “could be indefinitely kept secret from the American people.” Litt responded, “Well, we tried.”

Obama promised to run the most transparent administration in history, and in one way he kept his promise. In 2014 the government classified only one fourth the number of secrets as the yearly average under the Bush administration. But in other important respects, Obama perpetuated the Bush administration’s desire for secrecy. Notably, the bulk collection of metadata by the NSA was approved under secret legal interpretations that were reluctantly made public following the Snowden revelations. These interpretations were not merely secret; they were flatly contrary to what many people supposed the law meant.

Secret law undermines the rule of law, as legal theorists beginning with Kant have insisted: citizens must be able to know the law under which they are being governed. This is a hard lesson for officials to accept. When journalists won a Freedom of Information Act case to gain the release of secret white papers about the law governing targeted killings, Obama’s White House Counsel Neil Eggleston “swiftly issued instructions to the Obama legal team:…no more white papers.”

Furthermore, the Obama Justice Department prosecuted, in Savage’s words, “three times as many leak-related cases as all previous presidents combined.” Some, such as the cases of Bradley (now Chelsea) Manning and Edward Snowden, involved major leaks. Others, however, did not. Former NSA official Thomas Drake was prosecuted because he was a source for news exposés of waste and mismanagement. After years, the government acknowledged that it had no case against Drake; but before admitting that, prosecutors wishing to save face unethically got Drake to accept a last-minute plea bargain for a misdemeanor. At the sentencing hearing, the judge ripped into the prosecutors:

I think the average American citizen would take great caution to say, okay, let me get this straight, my home is searched, and three years later I’m finally indicted, and then a year after that the government drops the whole case. That’s four years of hell that a citizen goes through…. I find that unconscionable.8

Eric Holder defended the leak indictments by arguing that each was justified on the merits, which was plainly untrue in Drake’s case. But Holder’s defense also ducks the larger question. Previous administrations had refrained from cracking down on leakers, even when the government might have won on the merits; why not the Obama administration as well? Savage reports that there was no conscious policy driving the prosecutions for leaking, merely a set of unconnected decisions. I find this is a bit hard to credit, because the early prosecutions were well publicized and controversial; not to back off in later ones would have been a policy decision. A 2012 Defense Department document made it clear that, for at least some in government, the point was harsh deterrence: “Hammer this fact home,” the document said. “Leaking is tantamount to aiding the enemies of the United States.” That is a chilling mind-set: anyone who reveals a government secret is a traitor. It bespeaks a sense of entitlement to operate in absolute secrecy that is as foreign to the rule of law as it is to civil liberties.

At the same time, high-level officials who leaked information were not investigated. That includes CIA and Pentagon officials who cooperated in the film Zero Dark Thirty and were criticized by the Pentagon’s inspector general for unauthorized disclosures, and a former vice-chair of the Joint Chiefs of Staff who “became a prime suspect as a source for…reporting about the cyberattack on Iranian nuclear equipment.” It need hardly be said that such double standards are antithetical to the rule of law.

6.

Following the attacks in Paris and San Bernardino, Americans are reportedly more fearful than at any time since September 11, and fear inevitably makes both law and liberty seem insignificant compared with security. The level of fear now seems palpably greater than after comparable attacks: the 2004 Madrid train bombings, which killed 191 people and wounded nearly a thousand, and the 2013 Boston Marathon bombing. Perhaps that is because during an election season politicians deliberately amplify the fear; or perhaps the flamboyant atrocities of ISIS have become so magnified in our imagination that we see it as an existential threat to the West, just as it fancies itself.

Of course, this fear is not only American. After the Paris massacre, according to Human Rights Watch, the French government expanded emergency powers, allowing its officials

to impose house arrest without authorization from a judge, conduct searches without a judicial warrant and seize any computer files it finds, and block websites deemed to glorify terrorism without prior judicial authorization. These powers interfere with the rights to liberty, security, freedom of movement, privacy, and freedoms of association and expression.

French police promptly used their new powers against demonstrators during the conference on climate change. Such are the dangers of allowing reactions against terrorism to weaken commitment to rights.

Savage begins his book by arguing that the actions in 2009 of the underwear bomber, which came close to succeeding, produced comparable fear in the Obama administration, causing it to harden its positions on terrorism-related issues. Fear can quickly undermine civil liberties and the rule of law; that is something even the most conscientious lawyers cannot change.

  1. 1

    Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Little, Brown, 2007); reviewed by David Bromwich in these pages, November 20, 2008. 

  2. 2

    James Mann, “Charlie Savage’s ‘Power Wars’ Dissects Obama’s Evolution on National Security,” The New York Times, October 30, 2015.  

  3. 3

    John Adams, “Novanglus Paper” (no. 7), The Works of John Adams, edited by Charles Francis Adams (Books for Libraries Press, 1969), Vol. 4, p. 106. 

  4. 4

    See Eric Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford University Press, 2011). The authors are proponents of the “unbound” executive. 

  5. 5

    See my detailed discussion of the Obama administration’s failures on torture accountability in “An Affair to Remember,” in my Torture, Power, and Law (Cambridge University Press, 2014), pp. 271–306. 

  6. 6

    See Charles Levinson and David Rohde, “Special Report: Pentagon thwarts Obama’s effort to close Guantánamo,” Reuters, December 29, 2015.  

  7. 7

    I am grateful to David Remes for these figures. 

  8. 8

    Transcript of Proceedings, Sentencing, Before the Honorable Richard D. Bennett, United States District Judge, July 15, 2011, pp. 28–29, 42.