How Obama's Lawyers 'Legalized' the War on Terror

President Obama's uneasy encounters with the law in devising numerous innovative means to prosecute the War on Terror are treated exhaustively in Charlie Savage's much discussed book, "Power Wars." This compendious volume is destined to be a landmark in the writing of the period's history. It also should be seen as a marker of its times as it at once explains how Obama sought legal grounds by which to justify methods that skirt the Constitution and takes at face value the assertions of those who claim to have done a conscientious analysis of the laws and the Constitution without prejudice. Therein lies the heart of the dilemma associated with an account of this kind.

Savage doesn't make a choice -- explicitly. He does so implicitly, though, by concentrating on a systematic account of the deliberative process among the lawyers charged with demarcating legal territory. For this purpose, he spent hundreds of hours interviewing those officials. The strategic and political dimensions are present only as background factors. Rarely does Savage address the key question of how the latter intruded on the former -- and then only obliquely. Savage refrains from facing squarely the possibility that the officials queried may have had an incentive of a careerist nature to view issues in a particular light.

Most reviewers of the Savage account accept the validity of its underlying premise. As David Luban writes in The New York Review of Books: The lawyer's "domain is the arcane network of laws that constrain the president as he wages" the War on Terror. "If the president's lawyers tell him that a policy is illegal, he will have a hard time carrying it out."1 This is what we Americans would like to believe. But is it true? The record suggests otherwise. One must strain mightily to find instances where the White House did not do what it wanted to do -- or, where the President felt compelled to override a contrary interpretation by his lawyers in order to act as he was inclined.

Savage can only cite two instances in support of this thesis. The first concerns the administration lawyers' tergervisations in trying to find some statutory basis for the military intervention in Libya. As Luban paraphrases Savage: "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." This satisfied Obama because what he wanted, and expected, was a record of legal deliberation rather than a clear cut judgment of what the law approved. Ambiguity was fine. Surely, his lawyers were well aware of this - as on other matters.

The other case centered on the question of whether the Patriot Act of 2001 provided sufficient grounds for attacks on al-Shabaab in Somalia, which at that time was not officially affiliated with al-Qaeda. DOD's General Counsel, Jeh Johnson, created some static by issuing the stunning opinion that al-Shabaab could not be judged as 'associated force' as stipulated by the statute. Technically, this countermanded a planned strike by Special Operations Forces.

Did the law make a difference -- as Savage asserts? Manifestly, it did not. The United States has launched drone strikes and raids into Somalia steadily for the entire seven years of the Obama presidency. Three weeks ago, it boasted about the success in killing over a hundred "fighters" at a supposed training camp. The drone campaign develops: the Pentagon has announced that it has devised a new formula for estimating what level of 'collateral' civilian casualties is acceptable from a conjectured strike -- relevant factors include the value of the target, chances of success, and the demographics of the hypothetical 'collaterals.' Moreover, the White House also has sent Special Forces teams into 42 other countries to deal with militants whose al-Qaeda (or ISIL) connections were vague or non-existent, without an official formula for measuring unwanted casualties.

The place of the Patriot Act in these lawyerly discourses is of central importance. Time after time, the debate turns on the question of whether the provisions of the Act are applicable to a particular place or action. There was a strong tendency, glossed over by Savage, to take the Patriot Act to be tantamount to a Constitutional Amendment - or, at least, some sort of Basic Law superior in legal standing to all other statutes. Of course, there are no legitimate grounds for doing so. Indeed, several provisions of the Act are of dubious Constitutionality. They have not been fully adjudicated because two successive administrations have fought tooth-and-nail to deny plaintiffs access to the courts, usually with the acquiescence of a supine judiciary.

The legal architecture of Obama's version of the "war on terror" is as resistant to adjudication as was Bush's more ramshackle structure. How does a defendant prepare a defense when he is denied accusatory evidence on the grounds that it entails 'state secrets?' How does a defendant in a non-terrorist case protect himself from the prosecution's exploitation of evidence obtained without a court warrant when its source is kept secret because it was the fall-out from a national security surveillance case? How does a plaintiff gain standing to bring suit when the courts agree with the Executive's assertion that the individual in question must demonstrate having suffered personal damage? How does some American citizen on Obama's 'kill list' appeal for redress when required to make a personal appearance in a United States court -- transit to which might make him vulnerable to murder by American authorities.

Savage's lengthy account has another, more glaring omission. He makes no reference to the White House/CIA hacking of the Senate Intelligence Committee computers in Fall 2014 at the time of the standoff over release of the Committee's report on rendition and torture. John Brennan at the CIA was battling to squelch the report. He was most desperate about retrieving a document originating with the Agency's own Inspector General that provided damning evidence, i.e. the so-called "Panetta Report." Although transmitted voluntarily, the Director now saw that as a crucial mistake and wanted it back - by any means fair or foul. President Obama approved the break-in. We know of no legal opinion, memos or argument justifying this unconstitutional action.

The CIA under John Brennan's direction did not act as a rogue organization. The removal of the 'Panetta Report' and other documents from the Senate Committee computers, the hacking of the staff files, and the sending of a "crime report" to the Department of Justice requesting that Senate staffers be investigated for criminal acts occurred with the knowledge and approval of President Barack Obama. Publicly, the White House declared its "neutrality" in the dispute between the CIA and Congress. He went on to distance himself from the matter: "that's not something that is an appropriate role for me and the White House to wade into at this point."2 That statement is deceitful.

Is this not arguably an impeachable offense? Why does Savage totally ignore it?

Much of Savage's interpretations have as their pivot an alleged distinction between 'civil liberties' and the 'rule of law.' Luban claims that "confusing the two is understandable" but seriously mistaken. However, this is by no means self-evident. The 'rule of law' includes obedience to the Constitution which means the Bills of Rights among other provisions. Admittedly, the Bill of Rights does not automatically take precedence over those other provisions. Still, neither can they simply be traded-off against the supposedly good intentions behind some proposed governmental act or other. Luban gives the game away in stating: "Obama and his team aimed to provide a firm legal foundation for his policies, including - preventive detention, targeted killings, and extensive surveillance." They succeeded. As John Brennan, Obama's muse on all matters "terrorist," concedes: "I have never found a case that our legal authorities.... prevented us from doing something that we thought was in the best interest of the United States to do."

The FISA Court, just last week, reconfirmed that the FBI is free to search Americans' email that have been intercepted without a warrant while supposedly gathering foreign Intelligence. Mission accomplished!

The juxtaposition of 'civil liberties' and 'rule of law' can have insidious implications. For the distinction easily lapses into the proposition that 'civil liberties' as stipulated in the first Ten Amendments can be compromised according to circumstances. That idea of a 'trade-off' has been accepted even by many on the libertarian side of debates about various aspects of the "war on terror." The debate about privacy and surveillance in particular too often accepts the presumed need to "strike a balance" between "security" and civil liberties as its pivot. Those who argue that Fourth Amendment guarantees are not liable to attenuation or limitation because of exigent conditions are declared to be absolutists. For the overwhelming majority of commentators, some concessions to those conditions are deemed incontrovertible. Even distinguished law professors from prestigious law schools tell us that.3

But it is a false dichotomy -- in two respects.

At the practical level, there is no evidence that transgression on our liberties makes us safer - as noted. More fundamentally, unlawful and/or unconstitutional conduct is unlawful and unconstitutional whatever the supposed motivation and purpose. That is the essence of a rule-bound system -- a system of law that delimits the valid, acceptable actions of individuals -- including public officials. Expedient need is not accepted as grounds for murdering someone -- even if you suspect him of harboring designs to kidnap your child. Hunger is not an acceptable excuse for mugging somebody and stealing their purse. Motivation may be acknowledged as a mitigating factor when it comes to meting out punishment. The illegality of the act itself is not obviated, though. If searches and seizures without warrant are legally proscribed, then it should make no difference that General Clapper of the NIO, or Admiral Rogers of the NSA, or Mr. Brennan of the CIA -- or Mr. Obama in the White House -- thinks that it would be a good idea to violate the law and/or Constitution. That sort of rationalization marks the road to autocracy and the subordination of law to individual will. It means wounding democratic government as we know it.

Back to the question of lawyers' analytical autonomy. It stretches credulity beyond the breaking point to claim that these outcomes were a coincidence. That administration lawyers just happened to make interpretations that favored the policy preferences of the man in the Oval Office. Savage's fatal error of omission in his approach is the glaring failure to prod his dozens of interviewees to address the issue of bias. After all, they are not going to volunteer it. Who would ever offer the observations: "we fixed the facts around the policy proposal;" "it was a stitch-up;" "I was so terrified at the prospect of another 9/11 that I bent over backwards to give the Executive the benefit of the doubt;" "my husband/wife admonished me: are you out of your mind! -- risking having to look for a job in Boston/New York and taking the kids out of school in mid-semester?;" "I relish life in the corridors of power and wouldn't do anything to jeopardize it?" Or, further down the ladder, "if I really ticked off Holder, I might have to spend the last 10 years of my career adjudicating disputes between the EPA and the National Park Service over the environmental impact of septic tanks at Yellowstone."

Is this an exaggeration of the internalized pressures that the Obama lawyers experienced? Was there solid basis for their supposed fears of 'consequences?' No; yes. Consider the enormous pressures felt by the lawyers and regulators who had some measure of responsibility for imposing some restraint on the financial predators in the wake of the 2008 crash.

The worldly lawyers who are Savage's subjects shy away from the crudest fabrications. An appropriate analogy is baseball's "in-the-vicinity" rule. That refers to the unstated, universally accepted norm that, when turning the double-play, the shortstop -- or usually the second baseman -- need not have his foot clearly on the bag at the moment of pivoting to throw to first with a hard-sliding runner bearing down on him. He merely has to be reasonably close to it. Nowhere is it written down; yet, all accept and observe it. So, too, a legal interpretation about some dubious Executive action in the "war on terror" need only be in the vicinity of what law and precedent say is valid for it to pass muster. The courts play a role similar to the umpires' in ruling accordingly. FISA Courts, for their part, accept the pivot foot being anywhere on the diamond. The difference is that all baseball fans know of the in-the-vicinity rule while citizens are kept in the dark about the large inventory of similar unwritten rules in the judicial domain insofar as "terrorism'' is concerned. Savage seems oblivious of this reality -- or else, does a good job of pretending so.

Context is the big missing ingredient in Savage's 700 plus page opus. Fear and dread permeated the government as it did the country. President Obama's one fixed reference point from the day he entered office was to avoid another traumatic act of terrorism that likely would make him a one-term President. That reality warped perceptions down the line. The mania for secrecy about everything -- including official documents that contained the legal justifications for dubious acts -- infected everyone. "No more white papers" ordered White House Counsel Neil Eggleston -- they might leak. In short, no paper trail. This is not the mindset of a lawyer who believes that the justifications of the Obama legal team provided a "firm" legal basis for what they were doing. That supposedly "firm" legal basis, in several instances, resembles the legal basis for acquittal in the notorious Texas 'affluenza' case.

The truth is more insidious. If the government authorities thought that the United States actually was endangered to the high degree they claim, this kind of slipshod organization wouldn't be tolerated. The GWOT, in this and many similar instances at home and abroad, shows itself to be a macabre game wherein the currency of success is money, power and status as much as it is keeping Americans safe.

Reviewing the voluminous record, 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. The thousands of hours of process and deliberation were not just theatre; however, in terms of practical effect, they might as well have been. Indeed, the long-term consequences are likely to be more pernicious since all three branches of government now have persuaded themselves that there are 'firm' legal grounds for doing things that a generation ago would have been judged clearly illegal and/or unconstitutional by any disinterested court.

Obama legitimized and thereby institutionalized the illegalities of the "war on terror." That is his legacy.

Notes:

1. David J. Luban "Has Obama Upheld The Law?" New York Review of Bo

oks April 21, 2016

2. Senator Udall, in his letter to the President on March 10 2014, and Michael Haydon in an interview two weeks later have confirmed this.

3. Jeffrey Rosen "Naked Scanners, GPS Tracking, and Private Citizens: Technology's Role in Balancing Security and Privacy," 57 Wayne Law Review 1-10 (2011); David Cole "What Hope for Human Rights?" New York Review of Books September 17, 2013