Bush vs. Obama in the War on Terror: The Lawyers

FILE - In this Jan. 31, 2010, file photo, an unmanned U.S. Predator drone flies over Kandahar Air Field, southern Afghanistan
FILE - In this Jan. 31, 2010, file photo, an unmanned U.S. Predator drone flies over Kandahar Air Field, southern Afghanistan on a moonlit night. The Obama administration is amending its regulations for weapons sales to allow the export of armed military drones to friendly nations and allies. The State Department said Tuesday, Feb. 17, 2015, the new policy would allow foreign governments that meet certain requirements — and pledge not to use the unmanned aircraft illegally — to buy the vehicles that have played a critical but controversial role in combating terrorism and are increasingly used for other purposes. (AP Photo/Kirsty Wigglesworth, File)

Barack Obama's ascent to the White House evoked expectations of drastic changes in his predecessor's approach toward the War On Terror. Civil liberties, in particular, was the area of anticipated reform. Candidate Obama had inveighed against abuses on matters of detention, rendition, and surveillance -- among others. Respect for the Constitution and legal process were to be restored. That radical reorientation has not occurred. Instead, we debate the significance of, and reasons for what has been a strategy of pragmatic modification of inherited practices. The debate concentrates mainly on the deliberations among the administration's lawyers and policy-makers as to the permissible and the acceptable.

A full narrative of that process now has been provided by Charlie Savage's book, Power Wars. A reflection on the issues raised in an earlier commentary has led to two strong impressions. One is that the higher one goes in the hierarchy the more disingenuous the legal debate becomes. At the White House and in the Attorney General's office, the paramount question is not one of legality per se; rather, it is: 'can we get away with skirting the law -- and, if so, how should we represent it. Should we strictly obey the law and observe the Constitution or can we maneuver around it?'

The other outstanding feature is the extent to which "national security" has acquired a unique standing that transcends law and the Constitution. The participants, including the Constitutional law Professor who occupies the Oval Office, constantly are referring to national security considerations as having an independent existence detached from everything else. To put it differently, it is as if that assumed principle of security's transcendent importance were engraved in the Constitution itself. The federal courts, too, have bought into this idea of an extra-Constitutional status -- prodded by the Justice Department. In case after case, judges say something to the effect that: 'well it isn't exactly legal but I can't override the Executive's judgment about the needs for nation's security.'

This attitude implicitly creates a sphere of "extraordinary powers" or de facto martial law. That manner of thinking underlies the unjustifiably broad reading of the Authorization to Use Military Force to which the Obama lawyers, like their Bush predecessors, repeatedly revert in seeking legal foundation for actions that contravene the Bill of Rights and judicial precedent.

However, there is no provision in the American constitutional system for "Basic Law" or "Loi Cadre" as it is called in France which has a legal standby superior to that of other statutes. To treat the Authorization to Use Military Force act as such is to amend the Constitution by fiat. There are no exigent conditions that should even permit such a legal interpretation. Any reasonable concern about the inherent right of public authorities to act when a situation demands the resort to coercive action or some other exceptional behavior that "exigent circumstances" and "public safety exceptions" dictate have long been incorporated into 4th Amendment and other constitutional jurisprudence to accommodate the rare "ticking time bomb" situation. As Coleen Rowley has pointed out: "There's a big difference between allowing an individual officer to determine he/she can dispense with a warrant under exigent circumstances which will have to be defended later in a court of law, however, and creating a blanket, hierarchical "exigent circumstances" during wartime. It's essentially the difference between an individual's right to self-defense and a country making the determination to justify going to war.

There are inalienable rights as ensconced in the Constitution. They are not eligible to be treated as commodities for haggling among the CIA Director, the Attorney General and the man in the Oval Office and his political operatives. We contravened that principle in 1942 to our everlasting shame -- or so we thought afterwards. Exactly sixty years later, we started down that same road of infamy.

We have seen the tangible consequences of playing fast and loose with legal principle. President Obama recently felt no qualms in absolving Hillary Clinton for her violating the law and federal regulation through her use of multiple email accounts and a home server. "There is classification and there is classification," he reassured us. That distinction, though, was not applicable in the relentless persecution of leakers like Thomas Drake whose sole, selfless motivation was to expose abuses by their government which Mr Obama had taken pains to conceal and to deny.

Nowhere in Savage's book is there a sign that Obama, the lawyer, appreciates the menace to the country's constitutional underpinnings from a systematic strategy of 'legalism' which deforms the law. Nowhere does Savage suggest that this is a serious deficiency and a lasting cost of the GWOT.

Did the Obama's lawyers restrict his behavior in any consequential way by their tortuous legal exegesis? The items mentioned by Charlie Savage, with exception of the Guantanamo closing, are of little moment. What is the importance of Mohanad Mahmoud al-Farekh, the American-born Pakistani living over there since infancy, who as a foot-soldier with the Taliban was a candidate to be added to Obama's "kill list?" Captured soon thereafter by the Pakistanis, his assassination by drone could never have had any measurable effect on the war. The Awlaki precedent stands - allowing the Chief Executive to assassinate any American abroad whom he deems a threat to the United States. Suspension of the order to immediately assassinate al-Farekh barely rises to the level of a brief footnote in the legal history of the GWOT.

The, there is Ali Musa Daqduq? An Iraqi Shi'ite, he was captured and imprisoned for killing American soldiers in a fight outside of Baghdad. He was one of thousands in Iraq (Sunni and Shia) who fought the American occupiers. He had no exceptional value. Washington was interested in bringing him to the United States when the al-Maliki government forced our military withdrawal in December 2011. The Obama people, though, were hard pressed to devise legal grounds for doing so. Savage presents the Daqduq affair as a case wherein obedience to the letter of the law constrained presidential action. He was, in fact, a minor pawn in the Washington campaign to paint Iran in vivid colors as a major source of our troubles in Iraq. The notion that the failure to take him along with us when obliged to leave Iraq is of cardinal importance is far-fetched. Anyway, the decision Obama made was on diplomatic grounds (offending the Iraqi leadership by violating Iraqi law), not legal ones. This is one small example of Savage's inadequate attention to context.

Most prominent in Savage's defense of his thesis that judgments by Obama's lawyers were not politically colored, and that they set a firm legal framework for the actions he took, is his detailed account of a lawyerly hunt for a legal rationalization supportive of a conjectured plan to bomb of the Osama bin-Laden compound once we realized that he was resident in Abbottabad. The idea that Obama would incur the enormous costs of an air assault in a Pakistani city when there were far better options lacks even a shred of credibility. Again, it was politics and diplomacy that dictated restraint -- not legal advice.

Finally, there is Guantanamo issue, the general understanding is the legal debate on what the President could or could not do without Congressional approval is still open. Anyway, a timid President is unlikely to have been so bold as to act in the face of fierce public opposition -- whatever his reading of the law.

The point about context is twofold. First, there is the issue of whether the lawyers who are at the center of Mr. Savage's account, were unaffected in their legal interpretations of the law and the Constitution by the wider political, emotional and diplomatic context. His book does not probe this matter in any depth. He takes what they say as given. Admittedly, this is an elusive issue. For it involves people's mental processes and emotions -- not their actions. Savage does a reliable job of confirming the facts in regard to actions. However, there also are subjective facts to consider that are far more difficult to confirm. On these issues, in this setting, they nonetheless should be addressed.

Second, the President, his advisers, and the Attorney General were not detached recipients of the legal briefs that they received from the corps of administration lawyers. They were living in a state of ferment -- political and intellectual. The signals that they emitted were picked up by all in the administration; whether there was instruction (as occurred under Bush/Cheney) or not. The ultimate outcome, moreover, in terms of policy was determined by the President and a few others at the top of the pyramid. At the end of the day, the record shows clearly that nuanced legal opinion was not decisive.

Mr. Savage's final judgment in the Conclusion, after indeed spending 769 pages making detailed comparisons, is that there were importance differences between the legal niceties observed by the Bush and Obama administrations. Mr. John Brennan, General Michael Hayden (whose new book Savage offers an excellent review of in this week's New York Review of Books) and General Clapper have said otherwise -- in public. Any fair reading of the situation supports their judgment that the differences are 'trivial."

Mr. Savage's very last pages where he puts it all in perspective, have at their core long extracts from an interview with Ben Rhodes.

So, it is hard to avoid the conclusion that, for all the prolix lawyerly discussion, the Obama people reached the same conclusions as did John Yoo and David Addington in the Bush administration: the President could do pretty much as he pleased. Obama legitimized and thereby institutionalized the excesses of the "war on terror."