Recent citations to “Power Wars”: Immigration, Forever War, and whether White House lawyers could constrain a President Trump

When you write a book–missing a lot of time with your family and flirting with walking away from a job you love in order to get it done–it is sincerely gratifying to see it find an audience. The first wave of that, of course, is reviews. The flurry for Power Wars are subsiding, although Barron’s published a nice review earlier this month by the FIU history professor Howard B. Rock. He wrote, “Power Wars should serve as a challenge to Obama’s would-be successors and an important guidebook to voters whose support they seek.” Alas he missed that there is a full index for the book online, writing that “Given the author’s prodigious research, his book’s main flaw is that it lacks an index.”

Ultimately more satisfying, though, is seeing the book start to become part of the discourse as a resource for other people who write about national security and executive power. A few days ago I blogged about the Syria “red line” episode of 2012-13, riffing off a citation to the book in a Lawfare/Just Security blog post by Ashley Deeks and Marty Lederman responding to the State Department dissent memo. Here are three other examples from the past few weeks. They span topics as diverse as the Supreme Court’s (non) ruling about President Obama’s immigration policy, the evolving nature of the Forever War against Qaeda/ISIS, and whether a President Trump’s White House counsel would check and balance him.

Peter Shane, The Atlantic, “The U.S. Supreme Court’s Big Immigration Case Wasn’t About Presidental Power,” today:

To be sure, Johnson’s program followed intense collaboration involving the White House, DHS, and the Justice Department. In Power Wars, his account of the Obama presidency, the New York Times reporter Charlie Savage explains how the White House vetted a variety of policy options regarding deferred action for undocumented immigrants. The White House was directly involved in DAPA as a policy matter, and even the legal analysis published by the Justice Department—which rejected one of DHS’s major proposals as impermissible—was developed in consultation with White House counsel. What this points to, however, is only Obama’s political accountability for DAPA, not the secretary’s underlying legal authority. For political leadership, a president is accountable in the polls, but not the courts.

Samuel Moyn, Lawfare, “Endless War Watch, Summer 2016,” June 24, expanding on his NYT review of Mark Danner’s “Spiral: Trapped in the Forever War”:

There is little or no new information in it for experts, but the national security law community should still read and ponder it. Danner’s contribution and voice are very different, for example, from Charlie Savage’s much noted Power Wars, with its new information and judicious balance.  Danner steps outside the bipartisan consensus on national security law whose current equilibrium and minor bickering set the term of Savage’s inquiry. Danner, clearly, did not simply want to split the difference between the tangling lawyers within a bipartisan consensus around the war. Instead, he offers a cri de coeur about a national security culture that has gone deeply awry. If only to verify that he is wrong, everyone who is part of that consensus, which I assume describes most of the writers for and readers of this site, should take a look.

The thesis of Savage’s book is that after some point Americans, or at least all the current president’s men and women, “were trying to fight al-Qaeda while adhering to what they saw as the rule of law” (my emphasis). Now some people might disagree that Americans have in fact adhered to the rule of law and worry about a regime in which people whom the law is supposed to regulate get to decide what the law is. (I have tried to avoid staying hungry while adhering to what I see as my weight-loss regime, and I am afraid it hasn’t worked very well either.) It once seemed like “constitutional alarmism” to complain that checks within the executive branch—such as the storied independence of the Office of Legal Counsel— were too weak, but what about now? That the legislature has been out to a very long lunch as its statutes proved infinitely elastic has long struck many as regrettable, even though it is routinely treated as inevitable.  Few people in America have considered that it is Americans who are deciding what international law says – Savage cites few if any foreigners on such questions — even though every law student learns the maxim that no man should be a judge in his own cause. But even to have such debates it is critical to grasp that the new normal is a war asserted to be legal and fought in ostensible conformity with law. Condemning the war as “state of exception” skirts this all-important fact or ignores for how long and how broadly the war has been legalized.

Andrew Rudalevige, The Washington Post/Monkey Cage, “No, White House lawyers would not prevent a President Trump from overstepping his constitutional bounds,” June 14:

Charlie Savage’s magisterial “Power Wars“ examines both administrations. “Many of the lawyers [Bush and Cheney] surrounded themselves with,” he writes, “ … embraced such sweeping views of executive power that the law was not a factor. They dispatched every hard problem with the same easy answer: The president could do whatever he deemed necessary to protect national security.”

Obama, by contrast, did not want to claim presidential prerogative, preferring to ground his actions in statute. But administration lawyers have shown great talent in finding statutory interpretations that could be used to justify Obama’s preferences.

And indeed, so have those in other administrations. Institutional pressures demand it. One of Reagan’s counsels, A.B. Culvahouse, told Borrelli et al. that the office is “the last and in some cases the only protector of the President’s constitutional privileges. Almost everyone else is willing to give those away in part, inch by inch and bit by bit. … So a lot of what I did was stand in the way of that process.” Or as one Justice Department attorney told Savage: “At the end of the day, the job was not to decide what the intelligence community needed. Our job was to help them bring the tool they said they needed up to conform with the rule of law.”

As Savage reported at the time, but details more extensively in Power Wars (see Ch. 12, part 5), various administration lawyers had diverging views on using the American military in Libya after those 60 days. Most (including OLC) seemed to think that, at the very least, the “operational tempo” would have to be dialed back, with the United States providing only support for NATO attacks rather than carrying them out.

But White House Counsel Robert Bauer, along with Koh, developed what Savage calls “a very aggressive interpretation” of the War Powers Resolution, arguing that the Libya operation did not constitute “hostilities” under the terms of the WPR. That phrase should be reserved, Obama himself said at a news  conference, for wars on the scale of Vietnam.

Thanks to all of you.