First Published: 2016-05-09

How Obama ‘Legalized’ the War on Terror
Among the troubling legacies of Barack Obama’s presidency is his consolidation of the dubious legal principles that George W. Bush cobbled together to justify the Global War on Terror, explains Michael Brenner.
Middle East Online

President Barack 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.

President Barack Obama concludes a National Security Council meeting in the Situation Room of the White House, April 19, 2016. (Official White House Photo by Pete Souza)

President Barack Obama concludes a National Security Council meeting in the Situation Room of the White House, April 19, 2016. (Official White House Photo by Pete Souza)

Therein lies the heart of the dilemma associated with an account of this kind. For there are two broad approaches available. One is to surmise that policy preferences were made prior to and independent of the legal exegesis – however elaborate that exercise may have been.

The other is to give the participants, in the Oval Office on down, the benefit of considerable doubt in ascribing to them an earnest dedication to ascertaining where the legal boundaries lay before the decisions were taken on policies and programs.

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. The author apparently did not press the respondents very hard to reflect on how their legal opinions might have been affected – wittingly or unwittingly – by what they knew of the Obama White House’s predispositions.

Consequently, the analysis is caught in the snare of literalism. So much so, that 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.

Favorable Reviews

Most reviewers of the Savage account accept the validity of its underlying premise. As David Luban writes inThe 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.”

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.power-wars.jpg

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. The Defense Department’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 invocation of “state secrets,” especially in regard to rendition and torture, has been one of the preferred stratagems for doing so – in direct contradiction of solemn pledges given by candidate Obama in 2008.

Legal Architecture

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?

Anwar al-Awlaki’s father made a legal attempt to question his son’s inclusion on the ’kill list’ but was denied standing. It remains unclear whether the presentation of the cadaver would have changed the court’s ruling. Following the Court’s logic, Awlaki would have been required to address his complaint from beyond the grave.

Anwar al-Awlaki

Anwar al-Awlaki

Two weeks later, Awlaki’s Denver-born teenage son was a collateral victim of a second Predator strike that killed an alleged Al Qaeda in the Arabian Peninsula member.

It seems that only another branch of the federal government, or a state government, has a chance of forcing judicial review of Executive actions of questionable legality/constitutionality.

Where there is consensus among them that a state of national emergency renders that pursuing such a theoretical option itself constitutes a threat to the country’s security, no citizen or group of citizens has recourse to the courts for redress of grievances. Savage disregards this overarching issue.

Think for a moment where that leaves us. On the one hand, a Christian Salafist in Texas can be heard by the Supreme Court in complaining that his fundamentalist interpretation of the Bible doesn’t permit him to administer paycheck withholdings of health insurance premiums where the coverage extends to the policy-holder (with whom he has no personal relationship) a right to certain procedures – procedures that he, the employer, judges abhorrent –and win his case.

On the other hand, someone whom the President of the United States, acting at his own discretion behind his Oval Office desk, has checked off as a Hellfire missile target has no judicial recourse whatsoever.

That reality may not require a 700-page book; however, there is a convincing case to be made that it is far more important for the future of law in this Republic than the nuanced phrasing in a memo drafted by a lawyer deep in the engine room of the Executive legal machine which the ultimate decision-maker never reads – and, had he noted it, never would have done anything different.

A Glaring Omission

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.

CIA Director John Brennan 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 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 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.” That statement is deceitful.

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

(Alert: the reader must plow through all 700 pages in order to make that assertion since the book lacks an Index. That is odd for a scholarly work destined to remain a reference source for years to come, and where there are notations of numerous persons, offices, documents etc. on almost every page. It is likely that most reviewers, therefore, have only a faint knowledge of its contents – Luban excluded).

An Alleged Distinction

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.”

CIA Director John Brennan at a White House meeting during his time as President Barack Obama's counterterrorism adviser.

CIA Director John Brennan at a White House meeting during his time as President Barack Obama’s counterterrorism adviser.

The FISA Court recently 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. [See Jeffrey Rosen “Naked Scanners, GPS Tracking, and Private Citizens: Technology’s Role in Balancing Security and Privacy,”57Wayne Law Review1-10 (2011); David Cole “What Hope for Human Rights?”New York Review of BooksSeptember 17, 2013]

False Dichotomy

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.

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 Fourth Amendmentandotherconstitutional jurisprudence to accommodate the rare “ticking time bomb” situation.

As former FBI official 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 circumstanceswhich will have to be defended later in a court of law, however, and creating a blanket, hierarchal‘exigent circumstances’ during wartime. It’s essentially the difference between an individual’s right to self-defense and a countrymaking thedeterminationto justify going to war.The law made sense as it’s the ‘group think’ that is most dangerous, not the rogue ‘bad apple.’”

There areinalienablerights 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 60 years later, we went 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 former Secretary of State 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.

Former Attorney General Eric Holder

Former Attorney General Eric Holder

Yet more egregious was the Obama-Holder arbitrary amendment of the Constitution in pronouncing that the country’s biggest banks could escape both criminal and civil prosecution because punishment for their illegal actions might do serious harm to the economy. The two men, in effect, unilaterally and without any process other than their own political calculus placed an asterisk after the Constitutional stipulations regarding “equal protection of the laws.”

There is no way of knowing with precision the avenues of thought and psychology by which those previous episodes helped shape a policy-maker’s mindset leading to later actions. It is entirely reasonable, though, that egregiously bending the law and Constitution in one domain by referring to the demands of politics makes it easier to do so in other domains, subsequently.

Nowhere in the 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.

Stretching Credulity

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.

It is very hard to avoid the judgment that, due to his user friendly and accommodating attitude, Savage’s respondents at times took him for a ride. The most striking case in point is their audacious assertion that the White House’s implacable persecution of leakers did not represent a general strategy, but rather was the coincidental outcome of cases treated on an individual basis. Savage swallows this line whole.

Crude Fabrications

Theworldly lawyerswho are Savage’s subjectsshy away fromthe crudest fabrications. An appropriate analogyis baseball’s“in-the-vicinity” rule.That refersto theunstated, universally accepted norm that, when turning the double-play, the shortstop – or usually the second baseman – need not havehis foot clearly on the bagat the moment ofpivoting to throw tofirstwith 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, alegal interpretationaboutsome dubiousExecutive action in the “war on terror” needonly be in thevicinity of whatlaw and precedentsayis validfor it to pass muster.The courtsplay 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 thejudicialdomain insofar as “terrorism’’ is concerned. Savage seems oblivious of this reality – or else, does a good job of pretending so.

(FISA Courts, as the record attests, are something of a joke insofar as they agree to 99.9 percent of the Executive’s requests, often grant broad open-ended authority that extends the requested powers well beyond the particular case at hand – something they have no legal mandate to do, and usually don’t bother to write an explanatory opinion. This is pretty much what one would expect from judges 85 percent of whom are hard-core Republicans hand-picked by Chief Justice John Roberts who characteristically doesn’t hesitate to let his personal policy predilections dictate his judicial behavior.)

Lacking Context

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.

Savage, in one of his rare digressions into the political realm, recounts how shaken Obama was by the failed attempt by the “underwear bomber” to blow up a plane during Christmas week of 2009. It motivated an emotionally convulsed President to double down on the draconian methods incorporated in nowhis“war on terror.” This overwrought response was a reflection of the times – and of the man.

The quietus since 9/11 rightly should have been taken as evidence that Al Qaeda and friends were incapable of mounting anything like that again. A botched effort by a rank amateur to bring down a civilian aircraft by setting hisFruit-of-the-Loomson fire hardly amounts to a threat to the country’s national integrity and well-being. Perhaps, a single tragic event – but nothing more. Yet, it spurred the campaign to “do what we must,” dragging the equally shaken and willing lawyers along with it.

There is a strange intermingling of edgy intensity and the casual in all this. Our leaders, at all levels, are supposedly in a sweat of anxiety about terror and instill that feeling in the populace. Yet, their approach in conducting the “Global War On Terror” often has been haphazard.

FBI Director James Comey told us on April 20 that the Bureau incurred a cost of $1.3 million in opening the infamous San Bernardino Apple I-phone. That was the fee charged by private consultants. Fourteen years into the GWOT and after the expenditure of close to a trillion dollars, the Intelligence agencies have to go to outsiders to find someone qualified to do a job that is daily fare for Apple software specialists.

So the FBI, our ultimate protector which relies overwhelmingly on technical tools to do its job, in effect resorts to the equivalent of renting a screwdriver from a high tech hardware store. Equally bizarre, the technical staff of this commercial enterprise sells its services worldwide. This stunning incongruity is shrugged off as just doing what’s necessary to keep the terrorists at bay.

Obama’s Legacy

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.

John Yoo, former legal adviser in George W. Bush's Justice Department.

John Yoo, former legal adviser in George W. Bush’s Justice Department.

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.

The discomforting truth is that the high-powered Obama lawyers, drawn from elite backgrounds, suffered from an emotional ailment – the exaggerated dread of Islamist terrorism – just as have their fellow citizens. Consequently, they were prepared to subordinate good sense and their oath to preserving American legal principles to giving a veneer of legitimacy to a slapdash series of ineffectual policies that have compromised our democracy while making us less safe than we were in 2002.

Those lawyers, unlike their untutored compatriots, should have known better – and had a professional obligation to maintain the critical edge of distinguishing between going through the motions of legal reasoning and acting with full probity.

Belief that the United States is in grave and imminent danger from serious terrorist attack is the cornerstone premise holding up the massive edifice of our Intelligence apparatus. To acknowledge that this rendering of reality is groundless is to undercut the pervasive view that extraordinary measures to protect the United States’ security are imperative.

As William Pitt warned us: “Necessity is the plea for every infringement of human liberty. It is the argument of tyrants; it is the creed of slaves.”

Michael Brenner is a professor of international affairs at the University of Pittsburgh.

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