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Obama's War

Gabriel Schoenfeld

Striking the right balance between justice and security remains the most neuralgic point in American politics. Campaigning for the White House in 2008, Barack Obama insisted that George W. Bush and Dick Cheney had gotten it badly wrong: They were trampling on civil liberties with torture, warrantless surveillance, and blanket secrecy, while at the same time violating duly enacted statutes, even the Constitution. Obama was determined to set things right.

How well has he succeeded? That is the question the New York Times reporter Charlie Savage attempts to answer in this comprehensive account of the fierce legal battles within the Obama administration over counterterrorism policy and matters of war and peace. As Savage tells the story, Obama began his presidential tenure with grand promises: He vowed to end two wars, ban torture, close Guantánamo within a year, and run the most transparent administration in American history. But as the new president was soon to discover, talking about change was easier than bringing it about.

Within weeks of assuming office, writes Savage, Obama “had already started to assemble an ambiguous record” in dismantling policies of his predecessor that he had declared illegal, immoral, and unwise. Though he banned torture, his new CIA chief was defending the practice of “extraordinary rendition,” shipping captives off to countries where, despite diplomatic assurances, they might be subjected to less-than-tender methods of interrogation. He retained military commissions for trying terror suspects, promising only to review their rules. His Justice Department was invoking the state secrets privilege to toss lawsuits out of court, including those involving torture and warrantless surveillance.

Writing for the Times early in Obama’s first term, Savage reported that “the Obama administration is quietly signaling continued support for .  .  . major elements of its predecessor’s approach to fighting al Qaeda.” Thanks to that story and a flurry of others like it, civil libertarians and liberal pundits began to squawk about backsliding and betrayal. On the other side of the political divide, supporters of George W. Bush’s counter-terrorism measures began to crow, charging hypocrisy and claiming vindication. Whether the incoming fire was launched from left or right, it plainly hit its target in the White House: “We are charting a new way forward,” insisted a top Obama aide to Savage. But the reality suggested otherwise.

A foiled terror attack on Christmas Day 2009 made jettisoning Bush’s counter-terrorism toolkit a dangerous proposition. Flying aboard an airliner into Detroit, a Nigerian follower of al Qaeda attempted to set off a bomb hidden in his underwear. When it fizzled instead of detonating, passengers were spared a calamity—but the White House was not. Janet Napolitano, in charge of the Department of Homeland Security, elicited derision with her nonreassuring assurance to the public that the “system worked.” It plainly had not worked; only dumb luck and the quick action of Abdulmutallab’s seatmates had saved the day. But Obama did not allow the episode to interrupt his Hawaii vacation. Instead of heading back to Washington, he set off to the Kaneohe oceanfront to play golf. Conservatives were outraged. The public was alarmed.

Under the pressure of politics at home and terror threats abroad, writes Savage, “the reformist side of Obama’s national security legal policy was starting to crack.” Out was transparency about counterterrorism surveillance. Out was the plan to try 9/11 architect Khalid Sheikh Mohammed in a Manhattan courtroom. Out was the promised closure of Guantánamo within a year. In was intensified drone warfare. In were more secrets about key decisions. In were leak prosecutions when state secrets got out.

Men and women who had been among George W. Bush’s shrillest critics were now busily defending counterterrorism measures they had only recently condemned. The human rights advocate Harold Koh had ceaselessly excoriated Bush from his post at Yale Law School. Now, as the top lawyer at the State Department, he explained his reversals to his former academic colleagues by noting that it was “easier to take purist stances from the faculty lounge than from a position of responsibility.”

Koh and others like him found themselves perched painfully on the horns of an irresolvable dilemma. On the one hand was the pressing need to avert another underwear bomber or worse. On the other hand was the equally pressing need to be seen doing something other than continuing the counterterrorism measures put in place by George W. Bush.

If most of Bush’s counterterrorism policies could not be altered without jeopardizing security, at least the bureaucratic machinery could be better oiled. “There were real, severe process failures in the Bush administration that led to poor decisions,” Tom Donilon, then Obama’s deputy national security adviser, explained to Savage. “I was determined to make it better in this administration. .  .  . I insisted on bringing the consideration of legal issues into the [National Security Council] process.”

To that end, Savage reports, Donilon revived the interagency national security lawyers group that had been “essentially dismantled” by Bush. This elite body of attorneys began to meet regularly in the White House Situation Room. Its deliberations soon became critical. At every step of the way it set “the framework within which a decision could be made,” effectively giving “the lawyers the first shot at many decisions.” With the president, vice president, and national security adviser—all attorneys—and with phalanxes of attorneys staffing national security positions up, down, and across the hierarchy, instead of easing the decision-making process, the process got gummed up.

“Lawyerliness,” writes Savage, “suffused the administration. .  .  . Government by lawyer” was the Obama administration’s distinctive modus operandi. Deliberation was consistently “methodical and precise—sometimes to a fault.” Meetings on burning foreign policy issues focused not on overarching strategy but on parsing legal minutiae. Instead of leadership, observes Savage, “the Obama administration sometimes seemed paralyzed, grappling with a problem from all sides, and then putting it off to be taken up again at the next meeting.”

Extending to nearly 800 pages, Power Wars delves deeply into the nooks and crannies of every significant national security debate touching on the intersection of national security and law. The product of prodigious research and interviews with seemingly every player, Savage’s book provides a revealing picture of the inner workings of the Obama presidency.

From the wealth of material assembled here, one could readily construct a withering indictment of Barack Obama’s handling of national security matters. But constructing such an indictment is hardly Savage’s purpose. Quite the contrary: If Savage hangs out a great deal of team Obama’s dirty laundry, he does so not to disparage the administration but as part of a cleansing process. Time and again, Savage presents a bill of particulars, and time and again he proceeds to defend the president and his men from the charge sheet. To be sure, he is unsparing in acknowledging abundant shortcomings of Obama and his aides, but by offering arguments and counterarguments, and often tracing failings to spurious Republican attacks and reflexive congressional resistance, he constructs the best possible case for them nonetheless.

Savage’s effort to be scrupulously fair to the Obama administration is both impressive and admirable. It also stands in sharp contrast to his consistently uncharitable assessment of the Bush administration in his previous book, Takeover (2007), which warned of “an emerging threat to the checks and balances devised by our Founding Fathers” and decried the “subversion of American democracy.” Whatever political predispositions explain the discrepancy between the prosecutorial tone of Savage’s first book and the excusatory stance of the second, Power Wars definitely deserves commendation for its candor, even if it is not consistently convincing.

Thus, at one juncture, Savage examines team Obama’s preference for combating terrorism with law enforcement measures rather than military power. Defending this choice as something rooted in prudence rather than ideology, Savage informs readers that Obama “was no dove and never had been.” He fills in this description by noting that Obama had, on any number of occasions, “managed to make clear he was not a pacifist.” But Savage is here engaging in crude sleight-of-hand. As he surely knows, being a pacifist—that is, holding an absolute objection to all war—is scarcely the same thing as being a dove, which means having an aversion to the use of American power in the world. Obviously, Barack Obama is not and has never been a pacifist; but pace Savage, just as obviously he is and always has been a quintessential dove. Indeed, if Obama is not a dove, then that particular species of political pigeon does not exist.

A more central problem flows from Savage’s evaluation of Obama’s lawyerliness. Having laid out its features and the fecklessness it often causes, Savage turns around and enumerates the various advantages of Obama’s “lawyerly mind-set.” For one thing, he writes, “it meant that the administration, though it made its share of mistakes, was cautious and deliberate.” For another thing, “It was willing to revisit a previous decision in light of new evidence.” And for yet another thing, “it ensured that a full range of views was thoroughly aired.”

Overall, Savage suggests, government-by-lawyer—with “rigorous adherence to process“—despite its drawbacks, stands in favorable contrast to the “reckless” style of George W. Bush, whose administration was “notorious for violating norms of the decision-making process.”

This is rich in several ways. For one thing, despite being surrounded by hordes of lawyers, not all of Obama’s key decisions exactly reflect “rigorous adherence to process.” The president’s drawing of a red line promising to strike Syria if it employed chemical weapons, and his abrupt decision— taken after a 45-minute stroll around the White House grounds with a top aide—not to stand by his own red line after Syria employed nerve gas against its own citizens, can be characterized as “notorious for violating the norms of the decision-making process.” The consequences for American credibility of this truly “reckless” act reverberate to this day, including in locations distant from Syria. Savage recounts this sorry episode without voicing his own opinion but leaves the last word on the subject to the ultra-dovish Georgetown law professor David Cole, who tells us that Obama did the right thing and that the president’s action was “brave.”

Similarly, it is disingenuous to suggest that the Bush administration’s shortcomings flowed from an absence of lawyers or insufficient lawyerliness. There were lawyers aplenty around George W. Bush and Dick Cheney, but they were not the left-liberals who, when out of office, waged ceaseless war on the war on terrorism. Nor could the Bush administration afford to embrace the dilatory style of decision-making that Obama prefers—particularly in the immediate aftermath of 9/11, when it was confronted with innumerable urgent and novel questions. Moreover, the interagency lawyers group that Savage tells us the Bush administration “essentially dismantled” in fact met regularly throughout Bush’s two terms. Unlike the practice during the Obama administration, however, it was not the body that framed all issues for the president—and that is almost certainly a good, not a bad, thing. The Bush administration made its share of mistakes, but their genesis lay in factors far more complex than Savage allows here.

In the final analysis, we must judge national security policies not by how they are made but by their consequences. Savage has a great deal to say about Obama’s effort to ensure that his policies remain within the confines of law and the Constitution. But curiously, across his hundreds of pages, he has very little to say about a question every bit as important: Have those same policies made the country more or less secure? Power Wars went on sale in early November, just days before the carnage in Paris and San Bernardino. It did not require those terrorist attacks to know that Barack Obama’s national security policies, including very much his counterterrorism policies, are a shambles.

Power Wars is a book with many virtues, but one puts it down asking the obvious question: If everything has been as good as its author suggests—with all of his important qualifications duly noted—how come things are so terrifyingly bad?

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