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.…


This is exclusive content for subscribers only – subscribe at this low introductory rate for immediate access!

Online Subscription

Unlock this article, and thousands more from our complete 55+ year archive, by subscribing at the low introductory rate of just $1 an issue – that’s 10 issues online plus six months of full archive access for just $10.

One-Week Access

Purchase a trial Online Edition subscription and receive unlimited access for one week to all the content on nybooks.com.

If you already have one of these subscriptions, please be sure you are logged in to your nybooks.com account. If you subscribe to the print edition, you may also need to link your web site account to your print subscription. Click here to link your account services.