The Permanent Security State
Presidents come and go, but the national security bureaucracy never leaves.
Power Wars: Inside Obama's Post-9/11 Presidency, by Charlie Savage, Little, Brown and Company, 784 pages, $30
"The national security bureaucracy is a powerful force," Charlie Savage writes in Power Wars. The influence of this permanent security state, the New York Times reporter shows, is subtle but nonetheless pervasive, and it does not disappear when a new president takes control: A remarkable number of officials held the same or similar jobs under both George W. Bush and Barack Obama. Key decisions are repeatedly made or influenced by hold-overs and careerists who fight to maintain the status quo. The laws governing their conduct is blurry and elastic, giving them broad power that's exercised with little accountability. They thrive on secrecy. "The permanent bureaucracy gets nothing from transparency and sees it only in terms of risk," an administration official tells Savage. Power Wars provides voluminous evidence of that bureaucracy's reach; a century from now, this will be the first book legal historians pick up when trying to understand the Obama administration's national security policy. No branch of government turns out to be immune from the influence of the permanent security state.
When it comes to national security matters, the president is more presider than decider. "For all the focus the media and historians tend to put on presidents as individuals—Bush did this, Obama did that—the world and the government are so complicated that a single person cannot pay attention to all of it," Savage explains. "Presidents set the tone and the priorities, and they usually are the ones who make the very biggest decisions. But the overwhelming majority of what an administration does takes place in the trenches of the executive-branch bureaucracy. Dozens or hundreds of officials whose names are unknown to the public and who rarely show up in history books make decisions every day about matters that most likely will never be brought to the president's personal attention or that may be discussed only briefly in the Oval Office at a ten-thousand-foot level."
Examples fill the book. In 2009, Obama, sworn in only days before, was briefed for the first time on the security state's bulk surveillance programs. Officials assured him that these were not only vital to the nation's security but entirely legal. It meant nothing to anyone present that the programs were legitimated by a pseudo-court, the Foreign Intelligence Surveillance Court, or that they were barely understood by the intelligence committees—committees the 9/11 Commission had earlier labeled "dysfunctional" and John McCain would later describe as "co-opted." Obama turned to two of his appointees, Attorney General Eric Holder and White House Counsel Greg Craig, who were probably still trying to figure out where the men's rooms were. He asked what they thought, as though they could realistically raise any meaningful concerns. Not surprisingly, they didn't.
Within the permanent security state, officials have an incentive to push off costs and risks to their successors. The result is a continuing drive for less accountability and fewer checks. Officials are told they need broader power because "blood will be on their hands" if an attack occurs on their watch. We hear this over and over in the book: Who will bear the blame for casualties? Whose hands will end up bloody? But there are, of course, competing risks. There are long-term risks in neutering the courts as independent guardians of freedom. There are long-term risks in secretly compiling watch lists and no-fly lists that can easily be deployed to deprive people of constitutionally protected rights (as with the recent proposal to gut their right to bear arms). There are long-term risks in legitimating torture by allowing torturers to go unpunished. But within the permanent security state, the payoff lies in mitigating short-term risks. The long-term price will be paid on someone else's watch.
Congress operates under similar incentives, as Power Wars illustrates. No legislator wants to risk electoral defeat because one of the permanent security state's recommendations was ignored. The bureaucracy's emphasis on military and intelligence approaches over diplomatic or political solutions saturates the legislative process. Legislators are content to play a ceremonial role and to avoid hard national security decisions.
That's why Congress could stand by sheepishly as Obama's lawyers present an argument for the legality of the war against ISIS based on a 14-year-old Authorization to Use Military Force that licensed a different war for a different purpose against a different enemy. (The New York Times rightly labeled the argument "preposterous.") It's also why the Senate Intelligence Committee, more interested in hindsight than oversight, could present a report on torture that omits any mention of illegality or personal accountability—not least its own—and makes no recommendations for reform.
The committee identified 9,400 documents relevant to its inquiry, wrote three letters to the White House requesting those documents, got no response—and then simply dropped the request. No subpoena, nothing. The committee took no depositions and conducted no interviews, of the accused or of victims who had asked to testify. Treaty obligations notwithstanding, Obama brought none of the torturers to justice, even those whose barbarous conduct exceeded John Yoo's extravagant guidelines. The only person to be prosecuted in connection with the torture program, so far as I can tell, is the CIA official who first openly acknowledged it.
Obama's lawyers, as Savage points out, repeatedly urge the judiciary to steer clear of such matters. And of course it does so. The courts elect to play no role, either before or after a drone strike, in reviewing a decision to kill American citizens deemed to be terrorists overseas—even away from hot battlefields. Judicial friends-of-the-management dismiss case after case on the basis of the state secrets privilege, lack of standing, or the like. It is difficult to identify more than a case or two in which a plaintiff who has suffered even the most grievous injury as the result of Bush-Obama counterterrorism policies has been accorded his day in court, let alone one in which any plaintiff has been awarded a dime in damages.
In the realm of war powers, Obama as a candidate suggested that the applicable law is not entirely putty. In a 2007 answer to a question posed by Savage, he famously said: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Yet four years later he showed no fidelity to that principle, attacking Libya without congressional approval or any threat to the United States. He then lawyer-shopped to dredge up a "legally available" interpretation to sidestep the War Powers Resolution's 60-day time limit—not the best or most logical or traditional interpretation, and one rejected by the head of the Justice Department's Office of Legal Counsel and the Pentagon's general counsel and that barely passes the laugh test. (Under it, Savage notes, it wouldn't constitute "'hostilities' for the United States to bomb another country's armed forces pretty much every day so long as those forces could not shoot back at the Americans and it was a UN-authorized mission.") But Obama got away with it, Savage suggests, because in the conflict against terrorism, "legal theory is malleable.…In matters of national security, the line that separates policy and politics from law has grown blurry."
The president's lawyers have done all they can to make the law even more malleable. Ben Rhodes, the deputy national security adviser, brushed aside the need to get congressional approval to attack Syria. "It's easy to get lawyers to do clever wordings, and we could always point to Kosovo," he tells Savage. Rhodes' comment brings to mind former Secretary of State Madeleine Albright's response to Robin Cook when the British foreign secretary told her that his lawyers had legal concerns about bombing Kosovo. "Get new lawyers," she replied. Obama got new lawyers, much more clever than the old Bush lawyers with their jejune theory that the president is an elected king who can violate the law with impunity simply by reciting the magic jingle "commander-in-chief." Throughout Power Wars, Obama's attorneys come up with more refined and baroque arguments that reach the same result.
Yet the curtain does sometimes get pulled back, as it did in Zivotofsky v. Kerry, when the administration challenged a statute requiring the State Department to designate Israel as the nation of birth of certain Americans born in Jerusalem. The White House's lawyers cited the infamous inherent powers case, U.S. v. Curtiss-Wright, 10 times, relying on what the Supreme Court described as "unbounded power." Savage describes the "circular logic" of Bush's old lawyers: "a president had done certain things based on those theories, and because he had done them, those theories must be true." Obama's lawyers' logic may be less circular, but their conclusions are almost always as tortured.
Some of these lawyers earlier criticized Bush's national security policies but have later insisted that their criticism was based not on concerns about civil liberties but about the rule of law. They now contend that they weren't objecting to the substantive Bush policies at issue, such as undifferentiated mass surveillance, but only to the process by which those policies were implemented, including the lack of congressional approval. The real objective of the Obama administration, they assert, has been simply to restore a more lawful process.
Savage himself is sympathetic to this argument, but it has three weaknesses. First, as commonly understood, the concept of "the rule of law" is not that narrow. As most people (though not all legal scholars) use the term, it's not limited merely to process and procedure but includes at least minimal elements of liberty. Few people would regard a government as upholding the rule of law if it consistently abridged its citizens' fundamental freedoms but always did so with dotted i's and crossed t's. It was fair to believe, when Sen. Obama and his people criticized Bush's policies, that they shared this broad popular conception of the rule of law as protecting both process and liberty.
Second, many of the Bush policies that Obama and his lawyers earlier criticized, yet have nonetheless continued, are in fact purely procedural. The policies have no substantive dimension; the procedure is the substance. Consider the state secrets privilege, or prosecuting whistleblowers, or resistance to meaningful congressional oversight, or using signing statements to bypass the intent of Congress, or withholding documents under executive privilege, or classifying purely legal analysis. Most Bush critics probably did not regard the interests those policies abridged as mere civil liberties add-ons that are extraneous to the rule of law. They saw them as protected by the rule of law, which they expected President Obama to honor.
Third is the bottom-line question: As a practical matter, just how much bite does Obama's rule of law actually have? One would think that, if the rule of law means anything, at least on occasion it might prevent public officials from doing something that they would otherwise be inclined to do. What, specifically, has the rule of law prevented the Obama administration from doing?
The astonishingly candid answer was provided by none other than CIA Director John Brennan. Speaking off the cuff in 2011, Brennan said: "I have never found a case that our legal authorities, or legal interpretations that came out from that lawyers group, prevented us from doing something that we thought was in the best interest of the United States to do."
Could that possibly be right? In 2014, Savage asked Ben Rhodes basically the same question: Could he think of any instance in which the Obama administration had not done something that it wanted to do because the lawyers said that it would be illegal? Rhodes could think of only one example: rejecting the proposed exfiltration of an Iraqi prisoner without the Iraqi government's consent.
I read Power Wars with this same question in mind. I looked for additional instances in which this "most lawyerly of American presidents" was told categorically that he couldn't legally do something he wanted to do. Of course, law and politics are intertwined and the potential for political embarrassment can sink a proposal before the lawyers have to do so. And on a handful of occasions Obama's lawyers did equivocate or drag their feet. But it's hard to find any instance where his lawyers flatly vetoed a preferred policy option with an unequivocal "no." In the realm of national security, this administration's notion of the rule of law looks more often like ex post adornment than ex ante restraint.
Savage suggests that, given the number of lawyers filling jobs in the Obama administration, legal considerations have nonetheless "disciplined" the internal dialogue and nudged policy makers to focus on legal constraints. Perhaps. But let us remember: Richard Nixon, John Dean, John Mitchell, John Erlichman, and Charles Colson all were lawyers. Dean has said that 21 lawyers were involved in Watergate. If the Obama administration is the most heavily lawyered in history, the Nixon administration is a close runner-up. The Watergate tapes don't seem to reveal an Oval Office dialog disciplined by an unswerving drive to honor the rule of law.
The dynamic is familiar: Lawyers like to make clients happy, and Obama's lawyers are no exception. Sometimes, however, a lawyer has to be an abominable no-man. Not many spoilsports leap out of the pages of Power Wars. What does leap out is the pervasive influence of a permanent security state that has thrived under Barack Obama.
This article originally appeared in print under the headline "The Permanent Security State."
