Michael Brenner’s confused critique

Someone named Michael Brenner has been circulating a lengthy critique of Power Wars, including distributing a version to his listserv [to which he unilaterally adds the e-mail addresses of people] on Thursday, uploading a version to Consortium News on Saturday, and uploading another version as a Huffington Post blog yesterday. It opens with a flattering thought – that my book is “much discussed” and is “destined to be a landmark in the writing of the period’s history.” But Brenner goes harshly critical from there, portraying the book as credulous and full of omissions, hinting that its alleged failings may have been bad faith on my part, and eventually abandoning the book to just express his negative views of the Obama administration as having institutionalized illegality in the war on terror.

I’ve been torn about whether to respond to Brenner for reasons – as will become clearer below – of compassion. On the one hand, his criticism is unnecessarily snide and personal, e.g. “Savage seems oblivious of this reality — or else, does a good job of pretending so.” On the other hand, his critique is so riddled with basic errors – like Gilda Ratner’s Saturday Night Live character Emily Latella, who would rant on the basis of a misunderstanding, then say “nevermind”  – that I felt vicariously embarrassed for him. He seems to be a retired professor and has a page on the University of Pittsburgh website that lists various “papers,” although the most recent is from 2008 and several are just  Microsoft Word files with little prose poems about political figures.

Unfortunately, Brenner keeps revising and circulating this essay to various places, and two people have now forwarded it to me. So I’m going to just point out a few of Brenner’s most egregious factual misunderstandings.

  1. Brenner keeps referring to this law, “The Patriot Act.” I do not think it means what he thinks it means.

He goes on and on for paragraphs about the Patriot Act (e.g., “The place of the Patriot Act in these lawyerly discourses is of central importance”) when the context shows that he is actually talking about the Authorization for Use of Military Force. Since the repeated mistake has stayed in as he has edited and re-edited versions of this, it was not a stray oversight. No one with a competent grasp of post-9/11 issues would make this mistake.

  1. Brenner somehow totally missed a lengthy discussion of the CIA-Senate Intelligence Committee fight in the book.

He spends three paragraphs about how “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. … Is this not arguably an impeachable offense? Why does Savage totally ignore it?”

Chapter 10, Section 13 is titled “The CIA versus the Intelligence Committee,” and it may be found on pages 512-515. The foundations for that fight are foreshadowed in Chapter 4, Section 6, “Seeds of the Senate Torture Report,” on pages 114-116, and in Chapter 8, Section 6, “Hair on Fire (Executive Privilege II)” on pages 432-435.

  1. Brenner complains that the book has no index, so it is “likely that most reviewers, therefore, have only a faint knowledge of its contents.”

The book has a 48-page index. As a page says in the spot where indexes go, after the endnotes, the full index is available online at charliesavage.com/powerwarsindex. This is also cited in the table of contents.

  1. Brenner misses many examples of the law mattering in the Obama era.

He maintains that “Savage can cite only two instances” of “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.” One was the Libya War Powers Resolution episode and the other is the fight over whether Al Shabab in Somalia was targetable as a group.

Brenner seems not to have noticed the issue of failing to close Guantanamo due to Congressional transfer restrictions, a topic that consumes more pages of the book than any other. There’s also not bringing Dacduq out of Iraq. Not targeting al-Farekh. Starting to provide notice to criminal defendants when they faced evidence derived from FISA Amendments Act surveillance. Not granting deferred action to undocumented parents of DREAMers. That’s before you get to places where the law pushed them away from their initial inclinations prior to any final decision, like not bombing the bin Laden compound. Here’s a blog entry listing even more, derived from the book.

  1. Brenner writes that the Obama lawyers were just trying to come up with a baseball-like “in the vicinity” rule, except it was all secret memos and FISA court opinions the public had no access to, and that I seem “oblivious” of this reality.

Reflecting on the legitimacy of invoking merely “legally available” theories, especially where the law may be indeterminate or non-justiciable, and more broadly on whether the difference in lawyering between the Bush and Obama administration makes any difference in the end, is a central theme of the book. (See, e.g., pages 66-67, 151, 264, 647-648, 677-681, 687-688, 690-695).

The issue of “secret law” found in secret FISA court precedents and secret memos gets an entire chapter. (Chapter 9: “Secrecy and Secret Law,” found on pages 415-473.)

  1. “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.”

The first and third chapter is all about this establishing this context, although I situate it as kicking in viscerally with the Christmas 2009 underwear bombing attack, rather than Inauguration Day.

I could go on, but I think the point is made.