The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I just finished reading New York Times reporter Charlie Savage's book "Power Wars: Inside Obama's Post-9/11 Presidency." (I reviewed his previous book, on Bush administration use of executive power, here).
The book promises and delivers a close look "inside the Obama administration's national security legal and policy team. . . . [Savage] lays bare their internal deliberations, including emotional debates over the fates of detainees held on torture-tainted evidence and acts of war that lacked congressional authorization. He tells the inside stories of how Obama came to order the killing of an American citizen, preside over an unprecedented crackdown on leaks, and keep a then-secret National Security Agency program that collected records of every American's phone calls."
One thing that struck me about "Power Wars" is the extent to which at least some administration lawyers were far more aggressive in their interpretation of how international law constrained presidential authority than in their often flaccid interpretation of domestic law, and not merely for ideological reasons. Rather, they believed that if the United States proved itself to be a strict adherent to international law, this would somehow persuade international actors such as Russian President Vladimir Putin to follow America's example. By contrast, if the United States were seen as not respecting international law (as administration lawyers thought was true in the Bush administration), it would lead to both reputational damage to the United States, and, more important, to a global decline in respect for international legal norms. I consider this a well-meaning but ultimately naive understanding of international relations, and Putin seems to agree, at least on the naive part.
A second revelation: President Obama apparently felt free to intervene in Libya without Congress's approval in part because then-Speaker of the House John Boehner (R-Ohio) and Senate Minority Leader Michael McConnell (R-Ky.) failed to object when consulted. The Obama administration took this lack of objection as a green light, whereas the Republicans apparently thought that they were giving more of a yellow signal. As a result, Obama thought Boehner was being cynical and political when he later objected to the president's failure to invoke the War Powers Act, which would require a congressional vote, whereas Boehner thought it was consistent with his prior actions. While I think Savage understates the extent to which Obama abused executive authority before Libya, he seems correct in arguing that Libya was a turning point after which Obama felt freer to ignore Congress given what he saw as Boehner's abdication of responsibility. More generally, this incident underscores the extent to which congressional Republicans' unwillingness to overtly and consistently assert congressional prerogatives encouraged Obama's aggressive use of executive power.
Finally, the book really brings home a very important point about the Obama administration and the rule of law, though perhaps not quite in the way Savage intends. Savage distinguishes between two groups of Obama administration attorneys. Both groups saw themselves as reversing the depredations of the Bush administration.
The first group, the "civil libertarians," wanted to limit the government's authority over things such as drone strikes, NSA eavesdropping and the like, for civil-libertarian reasons. The second group, lawyers concerned with the rule of law, wanted to ensure that unlike in the Bush administration the executive branch didn't claim power under Article II of the Constitution to ignore congressional statutes because they interfered with presidential prerogatives. [Update: I rejected claims that the drone strikes and NSA surveillance were "lawless" in this post.]
According to Savage, the rule-of-law lawyers emerged broadly victorious, upsetting civil libertarians. The question, however, is whether their victory was truly a victory for the rule of law. One question is how much weight one gives to relatively stringent adherence to international law. As a skeptic of the cult of international law, my answer is "not much," especially because too much concern for international law undermines adherence to binding domestic law, including the Constitution, and seems to have done so in the Obama administration.
One serious challenge to the president's commitment to the rule of law came when Obama, likely motivated by his administration's progressive internationalist inclinations, decided to commit U.S. forces to bomb Libya. He decided to do so without getting Congress's formal assent, as the plain text of the War Powers Act requires. (Savage notes, by the way, that contrary to what's often asserted, no administration has argued that this part of the WPA [by which I mean the part requiring the president to begin winding down military operations after sixty days if Congress hasn't approved] is unconstitutional; constitutional objections have involved other provisions of the law).
Obama ignored the advice of attorneys at the Office of Legal Counsel and the Defense Department who told him he had to invoke the WPA. Instead, he trolled for attorneys who would let him do what he wanted to do, and accepted their extremely dubious (I would say ridiculous) interpretation of the act instead. In brief, the administration argued, against both common sense and legislative history, that bombing the heck out of Libya did not constitute "hostilities" under the act. This led liberal law professor Jack Balkin to refer to Obama as "George W. Obama," and it was surely not a victory for the rule of law. Just because one can find an attorney willing to endorse a legal theory doesn't mean you are following the rule of law, but in this context, as in many non-national-security contexts, the administration acted as if having a signed legal memo endorsing the president's position was the exact equivalent of adhering to the rule of law.
There do seem to have been several instances where the bureaucratic scales were tipped by legal considerations in favor of the administration pursuing one course of action over the other—especially when international-law principles were at stake. But one problem is that you often had the same people who were making policy decisions interpreting the law as they went along. So law and policy inevitably got mixed into a balancing act. That's why there is an advantage to involving and deferring to the Office of Legal Counsel; legal issues can be referred issues to them in which the attorneys have no policy stake (which doesn't mean that the OLC is by any means entirely neutral or is not cognizant of the relevant policy disputes, just that it is a somewhat more neutral and objective legal participant than other executive branch actors). But then-Attorney General Eric Holder undermined the OLC from the get-go (see Page 17 in the link), and Obama ignored it in the key test, Libya.
Meanwhile, there seem to be few examples in "Power Wars" where President Obama was originally set on doing something but was dissuaded from doing so by legal considerations. Perhaps the best example was not closing the Guantanamo Bay prison because of a law forbidding him to do so, but even that example comes with caveats. First, the political ramifications of defying Congress when Congress had public opinion on its side likely played a larger role than did legal considerations. And second, Obama ignored a related statute forbidding him from releasing Guantanamo prisoners without notifying Congress in advance. In doing so he ultimately relied on his inherent Article II powers. [Update: And in today's news: "White House officials have warned the president could act on his own to close the military prison at Guantanamo Bay if Congress doesn't approve a plan to do so."]
Finally, a cynic (such as me) might note the political advantages of generally relying on aggressive interpretations of obscure statutes rather than on Article II. I think John Yoo-esque theories of executive power are both wrong and dangerous, but they have the advantages of (a) being transparent and thus setting off public debate, and (b) potentially setting a precedent for all future presidents, including the administration's ideological enemies. Yoo, in fact, has, to his credit, defended Obama's exercise of whatever authority Yoo argued Bush had.
By contrast, relying on statutory arguments dependent on narrow circumstances both obscures what the president is doing to the public and also allows liberal administration attorneys to green-light Obama's actions, while being free in the future to oppose similar actions by a President Cruz or Rubio based on a distinction in the underlying facts and circumstances—and good lawyers can almost always find such distinctions. It may be natural to believe that "our side" can be trusted with power but "their side" can't, but it doesn't make for good legal doctrine.
Nevertheless, to their credit, there were many administration attorneys and policymakers who at least took legal considerations very seriously with regard to national security policy. Why does this often seem not to have carried over to other areas of law (consider the many examples discussed here)? One answer is that the administration seems to have been more concerned with strictly obeying international law than domestic law, including the Constitution.
Another answer might be presidential leadership. Savage asserts that Obama was far more willing to push the constitutional limits of executive power in the domestic sphere than in national security affairs because Obama believes that Congress has more tools to retaliate on domestic issues, making it a fairer fight. I'm not at all convinced that this belief is correct. (A cynic might also suggest that the president wanted to be constrained in national security policy, but not, say, on health care or immigration.) Besides, though I tend to have a restrained understanding of executive power in general, I think there is a much more plausible case to be made for broad presidential powers regarding foreign and military affairs than regarding ordinary domestic legislative matters.
Two final points about "Power Wars." This book is primarily about national security policy, while my book "Lawless" deals primarily with domestic policy and is much more narrowly focused on legal issues. The books nevertheless have some overlap—in particular, I have one chapter on the United States' bombing campaign in Libya that also discusses the legal rationale behind drone strikes, and Chapter 12 of "Power Wars" covers some of the same ground on domestic policy that I cover in my other chapters. I was pleased to discover that our respective narratives, while different, are quite consistent where they overlap.
Second, the book is exhaustive and comprehensive, too much so for a casual reader, and a more difficult read than Savage's previous book. You would really have to have an unusually strong interest in the subject matter to get through all 700 pages, and there's a huge cast of characters that is difficult to keep track of. (Admittedly, keeping track of characters is a particular problem of mine, including when reading novels.) It's a great reference work if you want to look up how the Obama administration came to make its policies on a wide range of national security issues, and some readers will use it primarily as a research resource. Nevertheless, the whole book is well worth your time if it's up your alley.