Eight things the Obama administration did not do because of legal concerns (at least in part)

One of my themes in “Power Wars” is how extraordinarily lawyerly the Obama administration has been in terms of personnel, mindset, and deliberative approach, in contrast to the extraordinarily un-lawyerly Bush-Cheney administration – for better and for worse. When I do book talks – like one last week at the CATO Institute – a recurring question is whether, for all its lawyerliness, the Obama administration ever actually chose to not do something because of legal concerns, rather than just engaging in creative lawyering to get around an apparent obstacle without resorting to crude Bush-like claims of unfettered executive power. But while the book brings to light a number of examples of aggressive lawyering by the Obama team, there are also some counterexamples of legal impediments blocking or disciplining its actions. This blog compiles a list of them.

Before I get to the specifics, the set-up is that Obama and his legal team has been loath to act like Bush in the sense of taking some action based on a claim that the Constitution empowers the president, when acting as commander-in-chief, to disregard a statute. To date Obama has done this only once, in the Bergdahl-Taliban prisoner swap. But the book tells many stories about how Obama lawyers, under pressure from events, came up with statutory interpretations that permitted the executive branch to go forward with a policy that was seemingly barred by a statute, like the foreign murder law and the targeting of Anwar Al-Awlaki (249-252), or the Libya air war and War Powers Resolution’s 60-day limit for congressionally unauthorized “hostilities” (638-649). Such episodes raise the question of whether the two administrations’ very different deliberative styles made any substantive difference or was just a more sophisticated way to facilitate an effectively unconstrained presidency. As I wrote following a description of yet another such case, involving an internal dispute about whether a particular Guantánamo detainee was lawfully detainable:

The episode raised a question about the difference between the Bush and Obama approach to executive-branch lawyering. If the end result was often the same — the president can do something specific he wants to do — does it make a difference if his lawyers got there by tossing off a five-page memo or by agonizing through a hundred-page memo? What is the difference between stretching and creatively interpreting statutes, treaties, and facts … and just saying, The rules weren’t written for this situation and so don’t apply, and the commander in chief gets to do whatever he wants? (151)

And several people have been struck by something I quote John Brennan as saying back in September 2011, as part of a broader off-the-cuff description of the interagency lawyers group:

“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.” (278)

But all this should not be overread as meaning Obama and his administration never were prevented from doing something they wanted to do because of legal concerns. This is so for several reasons.

First, Power Wars focuses, naturally, on high-profile issues that I was able to bring to the surface. But there almost certainly were many lower-profile proposals in the executive branch bureaucracy that never got far for legal reasons, but were also not significant or fraught enough to become the subject of high-level deliberations among political appointees – this is probably true for the Bush years, too!

Second, as the book shows, legal factors have shaped this administration’s internal deliberations in subtle but important ways, even when they don’t add up to an simple example of we want to do X but we can’t because the lawyers say X would be illegal. The Obama team’s relatively intense interest in thinking about legal authority before they decide what they want to do in the first place has put legal analysis on the table alongside military, diplomatic, political, and other factors, in ways that sometimes steered the deliberations away from legally edgier options, reducing the chances of getting to such an X. In this way, the line between legal constraint and policy choice can be blurry.

And third, the book does show several examples of the administration not doing something it wanted to do for legal reasons – as I wrote, Brennan’s statement was already “obsolete” by the end of 2011.

Here are some examples of the latter two types to consider:

  • Not closing Guantánamo: The biggest and most obvious is that to date, Obama has not carried out his longstanding plan to close the Guantánamo Bay wartime prison by moving the remaining detainees who cannot be transferred to a different prison on domestic soil. Had Congress not enacted a statutory bar to bringing any Gitmo detainees into the United States, he clearly would long since have done so. We’ll see whether this remains an example by the end of his administration, though, since he has been gradually making more assertive constitutional objections to the transfer restrictions as an abstract matter in his signing statements (296-299, 327-332, 671) and saber-rattling about his determination to close Guantanamo maybe even without Congressional cooperation (552-554) — including his chief of staff Dennis McDonough’s comments just this past weekend.
  • Not bombing the Bin Laden compound: When the administration was deliberating in early 2011 about what to do about the CIA’s discovery that Osama bin Laden was likely hiding in a compound in Abbottabad, Pakistan, the first course of action it weighed was far simpler and less risky than the eventual raid: bombing it to smithereens. Because it was in the middle of a residential neighborhood, this raised a question about collateral damage and the law of war or self-defense: how many civilian bystander deaths would be permissible under necessity/proportionality analysis? I report that the lawyers were prepared to sign off on significant collateral damage, given the military advantage of killing Al-Qaeda’s leader, if that was what Obama ultimately decided to do. But the analysis of how much collateral damage would be too much helped focus the conversation on the fact that there would be a lot of civilian deaths, which also had policy implications. This steered the deliberations toward a different course of action. (pp 260-261)
  • Not keeping Daqduq in American custody: At the “end” of the Iraq War in 2011, when the United States was getting rid of its wartime detainees in Iraq, the administration wanted to find a way to keep its last one, a Lebanese Hezbollah operative named Ali Musa Daqduq, incarcerated, but could not find a legal way to do so and ending up turning him over to the Iraqi government, which eventually, as feared, released him. (pp 482-485)
  • Not targeting al-Farekh: In late 2012 and 2013, the military and the intelligence community wanted to approve the targeted killing of a Pakistani-based al-Qaeda militant, Mohanad Mahmoud al-Farekh. Were he a normal militant, this would have happened. But al-Farekh was born in the United States, making him an American citizen. The administration legal team wrestled with whether he met the same standards that had earlier led it to approve the killing of Anwar al-Awlaki, another citizen deemed a terrorist whose capture was infeasible. The lawyers never signed off on targeting al-Farekh, and he was never targeted. (He was captured alive in 2015.) (pp 286-287)
  • Revealing, at last, the role of warrantless surveillance in evidence presented in certain criminal cases: In the summer of 2013, after a push by Solicitor General Donald Verrilli, the Department of Justice decided that it had to start notifying at least some criminal defendants in national security cases when they faced evidence derived from the FISA Amendments Act warrantless surveillance program, despite objections from national-security prosecutors that this could make the intelligence community unwilling to share important information with the department. Although questions remain about how fulsomely the department is interpreting its notice obligations even now, this change mattered because it has belatedly set up an opportunity for the regular judiciary to review the constitutionality of that law. (pp 559, 586-593)
  • Not unilaterally bombing Syrian forces for using chemical weapons: In the summer of 2013, Obama wanted to bomb Syrian forces for crossing his “red line” and using chemical weapons, but then stopped on the verge of doing so unilaterally and instead sought Congressional authorization for any use of military force. While his administration did not concede that prior permission from Congress was legally necessary, it was clearly the legal concerns about the proposed operation articulated by his legal advisers that pushed him to make that decision. (Congress never acted on his request; the crisis was instead resolved diplomatically with a Russia-brokered deal to remove the remaining chemical weapons from Syria.) (pp 630-631, 650-654)

Power Wars also looks, in chapter 12, at Obama’s record on executive power in domestic policy, mapping out his evolution from trying to be the president who respected and worked with Congress to being the president who boasted that he was taking unilateral executive actions to get around what he saw as Republican obstructionism. Although mainly a story of sharply escalating aggression as the foil shifted from Bush to the post-Tea Party Republican Congress, that section has counterexamples, too:

  • Continuing to enforce DOMA: Obama kept enforcing the Defense of Marriage Act, the statute barring federal recognition of same-sex marriages that were legal at the state level, until the Supreme Court issued a definitive ruling striking it down in 2013, even though starting in 2011 he had refused to let the Justice Department keep defending that statute in court after he decided it was probably unconstitutional. (pp 655-656)
  • Not including parents of ‘Dreamers’ in DAPA: Despite pressure from immigration activists, when the Obama administration put together the 2014 “Deferred Action for Parents of Americans” program shielding millions of undocumented immigrants from deportation, it decided not to include parents of so-called “Dreamers.” These were the non-citizens previously granted deferred action and eligibility for work permits because they arrived in the United States as children, under Obama’s smaller Deferred Action for Childhood Arrivals program in 2012. The reason DAPA did not include their parents is that the Office of Legal Counsel said that proposal would go too far. The idea was that parents of citizens are eligible to apply for permission to stay under existing immigration law, but not parents of non-citizens — even those granted temporary status. So drawing the line there for where Obama’s lawful power of prosecutorial discretion stopped reflected the structure of immigration law as Congress had enacted it. (pp 659-666)