Reality-checking Obama’s “values” argument for closing Gitmo

Today the NYT published a news analysis article I co-wrote with my colleague Scott Shane, our first team-up since he went on book leave for Objective Troy and then I went on book leave for Power Wars. It makes the case that much of the political rhetoric about Obama’s Guantanamo prison closure plan is garbage. Most of the article is devoted to explaining how numerous claims put forth by Obama’s Republican critics are demonstrably false. But the article also dings Obama for putting forth an argument that collapses under scrutiny as well. Over at Just Security, Marty Lederman (who helped craft the Obama administration’s national security legal policy at the Office of Legal Counsel in 2009-10) has put up a post that praises most of the article but disputes the part about Obama’s argument, suggesting that we have engaged in false equivalence. This post is a rebuttal to Lederman .

Specifically, the article knocks Obama for arguing that the United States should carry out his closure plan because the continued operation of the prison at Guantanamo is “contrary to our values.” We observed:

Yet a key argument Mr. Obama makes for shuttering the prison in Cuba — that its continued operation is contrary to “our values” — crumbles upon examination, too. His plan for closing it would not eliminate the main human rights complaints, because the United States would still be holding several dozen prisoners in perpetual detention without trial and force-feeding those who go on a hunger strike. It would just do that in a prison on American soil. …

Bowing to pragmatism, Mr. Obama decided those detainees [who were untriable but deemed too dangerous to release] would have to remain locked up without trial for the time being. He also accepted the principle that some detainees would be tried by military commission, not in civilian court, in part because the looser military rules of evidence would allow trials for more of those held.

From that moment, his plan could no longer be a clarion call to restore a pre-Sept. 11, 2001, understanding of the rule of law and to vindicate human rights. Instead, the administration has offered a hodgepodge of practical considerations, like saving money and rebranding detention to leave behind the toxic image of shackled prisoners in orange jumpsuits from Guantánamo’s early years.

In his post, Lederman acknowledges that under Obama’s closure plan, the United States would still be holding the some of the same men in indefinite detention without trial (and forcefeeding those who protest via hunger strike), just in a different location. He says Obama does not deny that, but he maintains that the president doesn’t think using law-of-war detention is a good thing either, that Obama has prevented this practice from growing, and that Obama would like to end it if he saw any responsible way to do so.

To this point we agree. But Lederman goes on to argue that Shane and I missed the mark in criticizing Obama for nevertheless insisting, as one of the core arguments that he musters in support of carrying out his Gitmo prison closure plan, that the continued operation of the Gitmo prison is “contrary to our values.”

What about the President’s claim that continuing the GTMO operation is “contrary to our values”? Savage and Shane’s account does not call that claim into question at all, let alone make it “crumble.” In a recent veto statement, the President also asserted that “the continued operation of this facility weakens our national security by [i] draining resources, [ii] damaging our relationships with key allies and partners, and [iii] emboldening violent extremists.” Savage and Shane do not suggest that these claims are mistaken, let alone show that they crumble upon examination; nor do they try to show that moving the final few dozen detainees to the United States would not diminish each of these three harmful costs of keeping GTMO open.

This is a non-sequitur. Lederman asserts that we do not show how Obama’s “our values” claim is empty, and then he goes on to list three pragmatic claims Obama makes that we did not quarrel with. But Lederman’s critique makes sense only if Obama’s invocation of “our values” is redundant. It has to be surplusage, a mere reiteration of Obama’s claim that Gitmo’s problematic past during the Bush years — when interrogators used torture and other abusive tactics there, when the U.S. government proclaimed it a law-free zone where courts had no jurisdiction and the Geneva Conventions did not apply — has left a negative lingering impression that, as long as that particular facility remains open, causes frictions with our allies and aids our enemies. Lederman is denying that Obama’s invocation of “our values” has anything to do with the human rights and rule-of-law concerns raised by critics of the ongoing detention practices at Gitmo — those who oppose the continued use of indefinite law-of-war detention without trial in the essentially endless war on terror, even if detainees today are not tortured and may bring habeas corpus lawsuits.

The problem is that Obama’s rhetoric sweeps more broadly than Lederman’s limited account. In 2013, for example, when Obama vowed to reinvigorate his moribund closure plan amid a widespread hunger strike and mass forcefeeding operations, he said this:

The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop.  … I think all of us should reflect on why exactly are we doing this? Why are we doing this? We’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing has happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with rule of law, consistent with our traditions.

That’s not about getting further away from the toxic image of past misdeeds that have long been corrected. That’s expressing opposition, on grounds of American values, to continuing to hold people in indefinite detention without trial going forward. This sentiment just cannot be coherently reconciled with the fact that his plan to close Gitmo was and is to imprison some of the same men indefinitely and without trial, just in a different prison.

Similarly, in Obama’s remarks when he unveiled the “plan” last month, he made clear that his closure plan would achieve those three pragmatic advantages Lederman cites — which include the two ways that rebranding would better capture benefits from the already-completed correction of past misdeeds. But Obama then went on to add a “values” argument that is clearly a fourth claim, something on top of that:

[The Gitmo prison is] counterproductive to our fight against terrorists, because they use it as propaganda in their efforts to recruit. It drains military resources, with nearly $450 million spent last year alone to keep it running, and more than $200 million in additional costs needed to keep it open going forward for less than 100 detainees. Guantanamo harms our partnerships with allies and other countries whose cooperation we need against terrorism. When I talk to other world leaders, they bring up the fact that Guantanamo is not resolved.

Moreover, keeping this facility open is contrary to our values. It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law. As Americans, we pride ourselves on being a beacon to other nations, a model of the rule of law.

Look. Obviously Obama doesn’t like long-term law-of-war detention without trial and in a perfect world, he would prefer to end it. That’s why he’s refused to use it as a disposition option for newly captured terrorism suspects and has set up a process whereby it may eventually wither away under a successor presidency, in contrast to the Republican view that it should be used routinely for new captures. But having accepted it as a legitimate tool to be used when national security officials deem it necessary to keep holding a legacy Gitmo detainee who cannot be tried, Obama cannot coherently suggest that his closure plan would bring an end to detention practices that are “contrary to our values.” He’s got three other rationales to support his plan that more or less make sense, but for some reason he insists on gilding the lily with this argument, which doesn’t.

Trump says he would only use “lawful” powers to fight terrorism – but there is a catch

Last fall, I attempted to get Donald Trump to answer some questions about his understanding of executive power. Like most candidates this cycle, he declined to answer my questions. That was particularly notable given his vow to bring back torture:

DONALD J. TRUMP has declared that as president, he would bring back waterboarding “and more” as options for interrogating terrorism suspects. But anti-torture laws forbid that. Does he believe the Constitution would empower him, as commander in chief, to override those limits? …

As the Iowa caucuses and New Hampshire primary approach, voters appear unlikely to know the answers to such questions. Both Mr. Trump and Mrs. Clinton — the leading candidates for the Republican and Democratic nominations — declined to answer questions submitted by The New York Times about their understanding of the scope and limits of the powers they would wield if elected.

Trump has continued to raise eyebrows in this area, including with his vow to commit another war crime: ordering the military to kill the children and other family members of terrorists in reprisal strikes. General Michael Hayden, the former NSA and CIA director* has said that the armed forces would refuse to obey such an order. At the Fox News debate last night, Bret Baier asked about the idea that the military would refuse to obey his “illegal” orders, but Trump insisted they would do as he said.

They won’t refuse. They’re not going to refuse me. Believe me. … I’m a leader. I’m a leader. I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it. That’s what leadership is all about.

Today, the Trump campaign released a statement in which he seemed to back off:

I feel very, very strongly about the need to attack and kill those terrorists who attack and kill our people. I know people who died on 9/11. I will never forget those events. I will use every legal power that I have to stop these terrorist enemies. I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters. I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.

I think it’s important to note that, for reasons unrelated to Trump, there may still be some wiggle room lurking here. During the Bush-Cheney administration, government lawyers repeatedly made the argument that the president, when acting as commander-in-chief, has constitutional power to lawfully disregard laws and treaties — including a torture ban and the international laws of war. If you take that view, then the president has a “legal power” to fight terrorist enemies in a way that contradicts a statute or a treaty without it meaning that they are disobeying it or violating it exactly — that is to say, those are binding rules under normal circumstances, but can be, er, trumped, in which case they are no longer binding. By acting on those theories, the Bush administration converted them into historical precedents that will be available to all future presidents to cite, no matter who they may turn out to be and what they may choose to do with those powers.

This was the thesis of my first book, Takeover, which concluded:

The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history — not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Sooner or later, there will always be another urgent need.

By the way, I think Trump’s overt argument that torture a) works and b) is justified in the war on terrorism, without hiding behind euphemisms, is perversely salutary. It’s yet another example of him saying what a certain group of people clearly think but won’t say out loud or directly. He’s lifting a veil and enabling us to get more directly at what the real issues are.

_________________

* I’m reading Hayden’s new book, Playing to the Edge: American Intelligence in the Age of Terror, which is interesting so far. Perhaps because he had to submit the manuscript to the pre-publication review board to avoid discussing classified information, there are places where I think its readers would not understand what he is dancing around without also having read the first surveillance chapter in Power WarsOf course, I would say that, wouldn’t I!

Is my Obama book, Power Wars, less “prosecutorial” than my Bush book, Takeover? Yes, some – and here’s why.

Last week, The Weekly Standard published a lengthy review of Power Wars: Inside Obama’s Post-9/11 Presidency by Gabriel Schoenfeld. I was grateful for the engagement with the book, though of course as with any review, I agreed with and liked some parts of it more than others. He and I had a private exchange about one part of what he wrote, and I decided I wanted to say publicly what I had explained to him. It centers on a comparison of Power Wars to my book about the Bush administration, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

Schoenfeld observed:

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.

So, even as Schoenfeld acknowledges that Power Wars is unsparing in surfacing Obama’s dirty laundry, he also suggests that I let political bias color my presentation of this material in comparison to my attitude eight years ago about the Bush administration’s shortcomings. Two things about this, and then a story about what someone in government told me about the difference between the two books:

First, neither of the two quotes that Schoenfeld cites as representing Takeover – that it warned of “an emerging threat to the checks and balances devised by our Founding Fathers” and decried the “subversion of American democracy” – are inside that book. The first is from the dust jacket and the second is from the subtitle – in other words, they are the marketing, not the content. I have long disliked both, finding them to be more strident than the tone of the book I wrote. As a second-time author this time around, I was more aggressive with Little Brown in keeping the tone of such things for Power Wars more neutral, in line with the tone of the content. Perhaps too much so – maybe its more aggressive subtitle and jacket is a factor in why Takeover reached the bestseller list and Power Wars has not, even though the latter is, I think, a better book.

That said, however, I do think it is accurate that the tone of Takeover (the actual book) is somewhat more prosecutorial than Power Wars in the following sense: a lot of Takeover’s material is framed as proving a case: that the Bush administration, especially during its Cheney-dominated years, was driven by an ideological desire to expand executive power as an end to itself – an agenda stemming from Cheney’s experiences in the Ford administration after Watergate and Vietnam and during the Church Committee investigation, when Congress was curbing the “imperial presidency” that had grown up during the early Cold War. That is the thesis of the book, and it recurs over and over: I describe this or that or the other episode, and I show how it, too, fit within that master narrative. Here’s what they wanted to do, here’s why, and here’s how that explains both what they did and how they went about doing it.

Power Wars is different because the Obama administration has been more of a muddle, both as a government and as the subject of a book. Obama and his team did not come into office with an overarching agenda to expand executive power, or to do anything else in the national security policy realm that so easily boils down to snappy thesis. They had a lofty, but vague, agenda that they wanted to fight terrorism pragmatically, while obeying a mainstream understanding of the rule of law — unlike Bush. But because the law in this area is often indeterminate, even without invoking exotic constitutional theories of preclusive commander-in-chief powers like Bush’s team, there turned out to be a lot of room for them to disagree with each other or for critics to disagree with their approach – even before you get to episodes where arguably they fell short of their own standards. As a result, while  the stories in the book are inherently interesting and important in and of themselves, they don’t all push in the same direction. So there is less of that recurring thesis-proving, prosecutorial-style master narrative framing – less see, they were doing X yet again!

A story: a few months ago I had a conversation with a career government official who works on national security legal policy issues and who had read both books. This official told me that Takeover was a valuable history of what happened and why in the immediate years following 9/11. But, the official said, because a big part of that explanation turned on Cheney’s idiosyncratic personal/intellectual history and outsized role for a VP, and how the combination of those two things had bestowed the Bush-Cheney administration with its peculiar fixations, the story of that moment was a little weird – and therefore the book’s insights were often limited to that particular moment, when those particular officials were in power.  By contrast, this official said, Power Wars captures the decision-making environment and what it is like to grapple with national security legal policy dilemmas inside a “normal” administration, in a way no book has done before. For that reason, lessons and insights of general applicability can be drawn from it; the official, flatteringly, said people coming into the government to work on such issues, including in future “normal” GOP administrations, should be required to read Power Wars in order to understand what their professional lives are going to be like.

Power Wars excerpt: A Fight in the Situation Room Over the FBI’s “Going Dark” Push

The end of this post has an excerpt from Power Wars about a behind-the-scenes conflict in the Obama administration over “Going Dark” — the FBI’s push to legally mandate that technology companies build interception or decryption capabilities into their products so it could execute wiretap or search warrants.

The Going Dark debate is getting a lot of attention after the FBI obtained a court order requiring Apple to help it defeat the security protecting the iPhone of one of the San Bernardino terrorists, which Apple has vowed to fight. But the fight has been going on for a much longer time – longer even than when Apple decided in late 2014 to encrypt its iPhones by default , drawing the ire of FBI director Jim Comey. Although according to these phone security statistics, this may have been a very hard job for Apple to do.
The FBI’s Going Dark push surfaced in 2010, under Comey’s predecessor, and the Obama administration argued about it right up to the cusp of the pre-Snowden era, which derailed it for about a year until Comey used the iPhone encryption issue to revive it.

Chapter 11 of Power Wars covers internal policy debates about surveillance from 2010 to the 2015. Section 3, “Going Dark,” stitches together this evolution into a coherent story while also filling in new details about never-before-reported internal meetings and conversations that I had not known about at the time, but learned about during book research. Here’s a taste:

Soon after [the first Going Dark] article ran, Obama met with senior law enforcement and national security officials in the Oval Office. At that gathering, Obama pressed Bob Mueller, the FBI director, to tell him what, if anything, he needed or what was important to him. Mueller used the opportunity to bring up the Going Dark initiative, now that it was out there.

Obama’s counterterrorism adviser, John Brennan, convened a deputies committee meeting in the Situation Room so the White House could get a handle on the proposal. [FBI general counsel Valerie] Caproni brought an operational official from the FBI to present slides about the problem. A range of intelligence and Justice Department officials attended, as well as Cameron Kerry, the general counsel of the Commerce Department, and Jim Kohlenberger, the chief of staff for the White House Office of Science and Technology Policy.

The presence of economic and science experts brought a different tenor to the national security policy meeting. Kohlenberger grilled the FBI briefer, trying to figure out how real the problem was. The FBI’s list of real-world examples struck some observers as unimpressive. Several of the services that had interception problems had since ceased operating anyway.

Caproni did not yield. From the FBI’s perspective, the issue was less what had happened already and more what it foretold about the future.

At the end of the meeting, Brennan said the policy development could go forward but warned that he did not want to read anything more about their deliberations in the newspaper. Brennan assigned his aide Nate Jones to lead the process from the White House. Jones convened meetings and circulated drafts of potential policy language. In November 2010, Mueller and Caproni went on a tour of Silicon Valley, urging executives at firms like Google and Facebook not to lobby against their proposal.

The FBI’s Going Dark push proceeded in fits and starts over the nexttwo years. It went quiet for a while after Caproni left the FBI. But Mueller made it a last policy wish-list item as his term wound down, and in 2012, Caproni’s successor as the FBI’s top lawyer, Andrew Weissmann, revived the effort. By the end of that year, the bureau switched to a different approach. …

This is the sort of thing you find throughout Power Wars, which combines explanations of national security legal policy dilemmas with insider stories of how Obama administration officials struggled with them — and with each other. If you have not yet picked up a copy but are interested in this sort of thing, I invite you to try the book.

Four things Antonin Scalia did on executive power, secrecy & surveillance in the Ford administration

There have been a lot of retrospectives about Justice Antonin Scalia’s record on the Supreme Court since his death on Saturday, but here are four things about his earlier career as head of the Justice Department’s Office of Legal Counsel  in the Ford administration that you might not know about. They are drawn from my first book, Takeover, and are largely based on research I conducted in the archives of the Ford Presidential Library, although one is from a speech he gave at a conference in Ottawa I attended.  (All of these are from Chapter Two of Takeover, which is available to read free on this website.)

1. Scalia advised Ford to veto a bill that expanded the Freedom of Information Act by permitting judges to look at material the executive branch said was classified

But the CIA, the Pentagon, the State Department, and other agencies that dealt in classified information were adamantly against the bill. Leading the charge was the young head of the Justice Department’s Office of Legal Counsel, which advises the president on constitutional matters. His name was Antonin Scalia. Scalia asserted that the bill unconstitutionally infringed on the president’s “exclusive” power to withhold information to protect national defense and foreign policy.45 Joined in argument by all but one of Ford’s top advisers (Buchen, the White House counsel and a friend of Ford’s from their college days46), Scalia and company convinced Ford to veto the bill because it could lead to leaks and “would violate constitutional principles.” 47 The Ford administration then launched an all-out lobbying campaign to urge Congress to sustain the veto and instead pass alternative legislation that Ford’s legal team would help craft. Congress, however, promptly overrode his veto.48

2. Scalia signed off on covert intelligence operations during the Church Committee investigation

Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.”58

3. Scalia told Ford to assert executive privilege to prevent Western Union and the FBI from testifying before Congress about a warrantless surveillance program

The following February, on Antonin Scalia’s advice, Ford asserted executive privilege to prevent FBI agents and Western Union officials from testifying about a program in which the telegram agency had been turning over cables to the government without warrants. Memorandum of conversation, November 21, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 16, folder: November 21, 1975—Ford, Kissinger; Antonin Scalia to Philip Buchen, memorandum re: “Claim of Executive Privilege with Respect to Materials Subpoenaed by the Committee on Government Operations, House of Representatives,” February 17, 1976, Ford Presidential Library, Presidential Handwriting File, box 31, folder: National Security Intelligence (13).

4. Scalia told Congress it could not require presidents to show lawmakers all diplomatic agreements after the revelation that Nixon had secretly promised South Vietnam the United States would come back to its defense and resume the war if the North violated the ceasefire

Lawmakers quickly introduced legislation in both houses that would require the president to submit any executive agreements to Congress for approval, as he was supposed to do in the case of a treaty. On May 15, 1975, the Ford administration dispatched Scalia to the Senate to testify against the bills. He called the plan an unconstitutional attempt to usurp presidential power to carry out the nation’s foreign affairs.67 Although legislation to force presidents to submit their executive agreements to a vote in Congress would eventually falter, senators would succeed in getting Ford to show them classified letters he had exchanged with Saudi Arabia, even though the president felt “it would not be wise to establish the precedent of providing correspondence between the heads of state.” 68 As the fight played out, Ford called several congressional leaders into the White House and urged them to slow down the legislation. Ford’s deputy national security adviser, Brent Scowcroft, urged the lawmakers not to undercut the president’s ability to speak for the United States with other foreign leaders. But Senator John Sparkman of Alabama told Scowcroft that the American president didn’t have the power make a commitment on behalf of the country on his own. “Other presidents do speak with that kind of authority, and this is precisely the danger we want to avoid,” Sparkman said, alluding to dictatorships.69

 

 

Takeover document: The Iran-Contra minority report

The first quarter or so of Takeover is a history of executive power before the Bush-Cheney administration, primarily from Watergate to the end of Bill Clinton’s presidency, interwoven with an intellectual history of Dick Cheney – how he came to develop his beliefs about strong executive powers. A key moment, recounted in Chapter 3, Section 6, was the Iran-Contra investigation. But it’s hard to find that report online. My colleague Robert Pear dug up an electronic copy of it for me, so I’ve uploaded it to Document Cloud. It is posted at the end of this post with some moments marked that are interesting for presidential power issues.

During the investigation, Representative Cheney was the leader of the minority that tried to defend the Reagan administration, in part on the grounds that the law the White House violated, the Boland Amendment, was an unconstitutional usurpation of presidential authority. This was a kind of origin story for the sweeping theory of commander-in-chief powers that the Bush-Cheney administration later advanced. (Not coincidentally, this was when Cheney first connected with David Addington – a staffer on the committee contributed by another Republican lawmaker who quickly went to work for Cheney, first as a key aide at his Pentagon in 1989 and later the Office of Vice President. Addington was the chief architect of the Bush-Cheney legal team’s views on executive power.) Years later, when the New York Times revealed that the Bush-Cheney administration was wiretapping without warrants in violation of the Foreign Intelligence Surveillance Act, Cheney told reporters to look up his minority report for a better understanding of his views about the limits of Congress’s ability to regulate executive power.

I do have the view that over the years there had been an erosion of presidential power and authority, that it’s reflected in a number of developments … a lot of the things around Watergate and Vietnam, both, in the ’70s served to erode the authority, I think, the President needs to be effective especially in a national security area. If you want reference to an obscure text, go look at the minority views that were filed with the Iran-Contra Committee; the Iran Contra Report in about 1987. Nobody has ever read them, but we — part of the argument in Iran Contra was whether or not the President had the authority to do what was done in the Reagan years. And those of us in the minority wrote minority views, but they were actually authored by a guy working for me, for my staff, that I think are very good in laying out a robust view of the President’s prerogatives with respect to the conduct of especially foreign policy and national security matters. It will give you a much broader perspective.

Bonus: here’s a clip I made of an interesting moment in the video of the press conference in which Cheney and his colleagues announced their minority report, in which Cheney puts his concerns in a broader historical context that traces back to the end of the Nixon and then the Ford administration, when he was White House chief of staff. (I didn’t know about this at the time I wrote Takeover.)

(See also this long-lost, never-presented 42-page draft paper by Cheney in 1989, in which he further developed his views about why he believed in interpreting the Constitution in a way that gave the executive pre-eminent control of foreign affairs.)

Here’s the Iran-Contra report:



Takeover document: Dick Cheney’s undelivered 1989 paper on presidential power and “congressional overreaching in foreign policy”

I’ve posted several primary source documents of interest in Power Wars on this blog, and it occurred to me that I should also make generally available an important primary source document that I dug up when I was writing my first book, Takeover, eight years ago. I had put this up on Document Cloud in 2012, but Google’s search engine is more likely to help people find it this way.

It is then-Representative Dick Cheney’s 42-page paper, “Congressional Overreaching in Foreign Policy.” I discuss this paper in Section 8 of Chapter 3 (“A Cabal of Zealots: 1977-2000”) in Takeover. Basically, in March 1989, Cheney was going to deliver a talk at the American Enterprise Institute about why he thought the executive branch should have sole control of foreign policy. He turned this paper in ahead of the envisioned conference, but he never delivered it. In the meantime, George H.W. Bush’s original nomination of John Tower to be secretary of defense melted down, and the White House asked Cheney to lead the Pentagon instead. So Cheney bowed out, shelving his remarks. I found a brief reference to them in this short Washington Post article by David Broder in 1989, which he found newsworthy in light of Cheney’s nomination, and obtained a copy of the full text during my book research.

I found them fascinating as a key moment in Cheney’s intellectual history, leading to the Bush-Cheney push to expand executive power starting in 2001. The AEI paper grew out of Cheney’s work overseeing the production of the minority report defending the Reagan administration during the Iran-Contra investigation in part on the grounds that the Boland Amendment, which the Reagan administration violated, was unconstitutional.

About 14 months later, Cheney put together this paper. He referred readers back to the legal arguments in the Iran-Contra minority report, but added a normative gloss: he said he wanted to get beyond the legal arguments over the possible meanings of the “parchment document” and explain why, for pragmatic and “real world” reasons, he endorsed an interpretation of the Constitution that gave stronger powers to the president and a lessor role for Congress.



Reactions to the surprising failure of my quadrennial presidential candidate executive power survey

Every four years, before Iowa and New Hampshire, I ask presidential primary candidates to answer a short set of hard questions (might be through a physical questionnaire, or verbally) laying out their understanding of the scope and limits of executive power. Generally the questions get at dilemmas in which the rules are murky and contested. Because he became president, Senator Barack Obama’s answers – and his later departures from a few of the limits he had identified – have proven to be of enduring interest, as I lay out in several moments in Power Wars.

But after great success in 2007 and 2011, this year, as I reported last Sunday, the project was a failure. (When my story went to press, only Rand Paul had answered the questions, although Hillary Clinton had provided a general statement. On Sunday, Ben Carson provided answers.) I laid out some informed speculation about what seems to have changed, which boils down to two takeaways: establishment Republican policy experts are demoralized and marginalized in the face of their party rank-and-file’s embrace of Donald Trump, and Clinton is preparing to govern through unilateral executive action in what is very likely to be an era of continued partisan polarization and Congressional paralysis/”obstructionism.” In that sense, I argued, the very failure of the project this cycle has still told voters some things they need to know.

Today the Concord Monitor in New Hampshire published an editorial about the project’s failure, “Executive Authority Murkiness,” noting that presidents’ use of unilateral executive actions to govern

has increased with congressional paralysis, which has become a political fact of life that’s not likely to change with the next election. So it could be that the candidates didn’t answer because they didn’t want to limit their powers needlessly or because the question has yet to be answered definitively by anyone. Several candidates, including Trump and lawyers Cruz and Marco Rubio, appear to have views on the extent of presidential power that, with less than a dozen days to go before the primary, voters should think about.

This failure of the project has gotten some attention elsewhere, including a couple posts by Scott Shackleford at Reason,Resolved: This Is Not an Election About Restraining the President,” and “Ben Carson Weighs In on Limits to the President’s Power.” He wrote that “It’s a dismaying outcome that will not prompt significant outrage in a presidential cycle that is becoming increasingly full of authoritarian promises.”

I continue to be struck by how different the results were from the last two cycles, when showing oneself to be unwilling (or unable) to answer the questions seemed to strongly correlate with not being a serious candidate.

Specifically, in 2007, the candidates who answered the questions were Joe Biden, Hillary Clinton, Chris Dodd, John Edwards, John McCain, Barack Obama, Ron Paul, Bill Richardson, and Mitt Romney; Rudy Giuliani did not answer them, but – like Clinton this time – at least submitted a general statement drafted by former Office of Legal Counsel head and solicitor general Ted Olson, who was advising his campaign. The only two candidates whom I contacted who didn’t respond at all that cycle were Mike Huckabee and Fred Thompson.

And in 2011, when only the GOP was having a primary, Newt Gingrich, Jon Huntsman, Ron Paul, Rick Perry, and Mitt Romney all answered the questions, while only Michele Bachmann, Herman Cain (who had already dropped out before the deadline), and Rick Santorum did not respond.

But this cycle, as the chart on the first page of the below document set shows, the political moment has proved to be very different:



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. He did not come to this country to work like many immigrants from that area of the world do. He never had to complete an i693 form to prove his health and went through none of the same rigorous checks that many people that wish to live in the U.S do. 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)

 

More on my discussion with Stephen Griffin on Republicans and the Myth that Every President Since Nixon has Declared the War Powers Resolution’s 60-Day Clock to be Unconstitutional

Stephen Griffin and I have been discussing the myth that all presidents since Nixon have deemed the War Powers Resolution’s 60-day clock to be unconstitutional. (Griffin #1, me #1, Griffin #2, and now this from me.) In sum, we agree it’s a myth because Democratic presidents have taken the opposite position, but we disagree about whether post-Reagan Republican administrations’ hostility to the provision rose to the level of those three presidents consistently taking the position that it was unconstitutional (Griffin’s view), or whether it instead merely amounted to hints and largely behind-the-scenes mutterings by legal advisers, in which case no actual precedent for the proposition that the 60-day-clock is unconstitutional has yet to be established under presidents of either party (my view).

We may be running out of steam, but I want to make three points.

First, the most important marker here is Reagan’s signing statement in 1983 about Lebanon, which Griffin’s original blog post described as “taking the position” that the 60-day clock is unconstitutional. I’d like to point out that in his 2013 book, Long Wars, Griffin describes that signing statement much less definitively and closer to my view that it stopped short of affirmatively taking a position. Specifically, on page 173, he writes that Reagan “appeared to suggest that the statute might infringe on his powers as commander in chief” (my emphasis). So I agree with his earlier formulation!

Second, in his latest post, Griffin also brings up a 1987-88 operation in the Persian Gulf in which Reagan dispatched the navy to escort oil tankers toward the tail end of the Iran-Iraq War. The American naval vessels were at risk of being hit by an Iranian mine or missile. The Americans also occasionally fired, including on an Iranian helicopter suspected of laying mines in 1987. (To say nothing of the Americans mistakenly shooting down a civilian Iranian airliner, killing 290 people, in 1988, after the WPR dispute had run its course.) Griffin says this didn’t register as a WPR 60-day-clock precedent because “it’s pretty clear Republicans already believed the WPR was unconstitutional.”

My take: There was a WPR dispute about this operation, but  it was another example of a dispute over when the statute applied, not an instance in which Reagan acknowledged that the provision applied but acted in defiance of it based on a constitutional theory. The Reagan administration claimed that sending American naval ships to escort tankers did not constitute the sort of hostilities covered by the WPR, so it provided no WPR notice to Congress in the first place (the 60-day clock starts ticking when such a notice is made). This article in the New York Times from 1987 makes this clear:

Some experts say the law is less useful in ”gray areas,” such as the Persian Gulf, where the United States decision to escort oil tankers does not fall under usual definitions of war.

”When you get to a real war question, such as sending troops to Nicaragua, the War Powers Act is a powerful instrument in the political process,” said Fred Wertheimer, president of Common Cause, the public affairs lobby.

But there is wide agreement in both branches of Government that the Persian Gulf crisis has illuminated some serious flaws in the War Powers Act, and one prime problem is when the measure actually applies.

To many Administration critics, all doubts about the law’s relevance were erased last month when a United States helicopter fired on an Iranian ship that it said was laying mines. ”If that’s not being involved in imminent hostilities,” Senator Sasser complained, ”I don’t know what is.”

The Administration itself was divided, with Howard H. Baker Jr., the White House chief of staff, arguing that the law did apply to the Gulf. But he was overruled, and one senior official said the White House position now is that ”the situation in the Persian Gulf does not justify notification under the War Powers Act.”

Third, Griffin suggests that media reports in New York Times (from a generation ago) contributed to the larger misimpression that all presidents have taken the view that the 60-day clock is unconstitutional. In his latest blog item, Griffin observes that in the 1980s the executive branch (starting with Reagan’s 1983 signing statement about Lebanon) “began pushing back against what were seen as congressional encroachments in matters of national security.  This resulted in some NYT articles (as I remember written by Stuart Taylor) that contributed to the idea that presidents had generally rejected the WPR.”

That’s interesting, and he may be right that oversimplified or sloppy reporting was a contributing factor. I decided to look up the article(s) to see what they said, just to explore the topic. So the rest of this blog post is no longer a rebuttal to Griffin — it’s just looking at what NYT articles from the 1980s said.

It may be Griffin is remembering this 1983 article by Taylor about whether the Grenada invasion was legal, because none of the others in the NYT archives with Taylor’s byline and the words “War Powers Resolution” seems remotely on point. But it may also be that Taylor didn’t write the one Griffin is recalling at all, because this article doesn’t say anything about other presidents. The only relevant bit is about 2/3 down. After describing how Reagan notified Congress about the invasion “consistent with” the WPR but didn’t use the language for when the 60-day clock is triggered, echoing Reagan’s earlier squirrely approach with whether the WPR applied to peacekeeping forces in Lebanon, Taylor obliquely references the Reagan signing statement about Lebanon like this:

Mr. Reagan’s failure to refer to ”hostilities” resembles his recent refusal to acknowledge or report that the marines in Lebanon were involved in ”hostilities” within the meaning of the 1973 resolution, and his suggestion that the 90-day [sic] limitation was unconstitutional.

Notably, in Long Wars, Griffin makes a similar argument about NYT articles contributing to this misunderstanding but instead cites two articles by other reporters. To wit, also on page 173, he wrote:

Ignoring the Carter OLC opinion that the WPR was constitutional, the Reagan and Bush I administrations took the line that every president since Nixon had challenged the constitutionality of the law while in office, the sixty-day clock in particular.[119] While the record was far more complex than indicated by this simple statement, it was so widely reported in the press that the notion was difficult to debunk.[120]

[119] This is reflected in newspaper stories of the period. See Wayne King and Warren Weaver Jr., “Briefing: Department of Hostilities,” N.Y. Times, March 29, 1986; Steven V. Roberts, “War Powers? What War Powers?,” N.Y. Times, Oct. 6, 1987

[120] Barron and Lederman, “History,” at 1070 n. 529 [PDF 131 here]

One of these articles Griffin’s endnote 119 cites is the one I just quoted above, about the 1987 tanker escort operation. In that article, Steven Roberts did indeed remark in passing that “All Presidents since Mr. Nixon have challenged the constitutionality of the law.”  I would put this remark in the category of oversimplifying the WPR as a single thing whose constitutionality may be in doubt, when it’s really a collection of different provisions. See my first post about how just because Section 2 and its purported limits on the initial introduction of forces into combat has been challenged, that doesn’t mean Section 5(b)’s 60-day-clock is also unconstitutional.

The other article Griffin’s endnote 119 cites, the March 29, 1986, one by King and Weaver, was about a dispute between the Reagan administration and the (Democrat-controlled) House Foreign Affairs Committee about Reagan’s unilateral decision to send aircraft carriers into the Gulf of Sidra, leading to an exchange of missiles with forces of Libya, on March 23-24, 1986. Libya’s leader, Muammar Gaddafi, was trying to claim 62 nautical miles out as its territorial waters rather than the usual 12 nautical miles from a nation’s shore, triggering a freedom-of-navigation dispute not unlike what is happening off the coast of China today.

The question was whether this amounted to introducing forces into “hostilities” of the sort that required advance consultation with, and notice to, Congress, under Section 2 and 4 of the WPR. (If it did, and the operation was still happening two months later, then that would raise a clock issue at that time. But the operation was over within a few days. So this dispute was instead sparked by Reagan’s failure to consult Congress ahead of time and provide a formal WPR notice about it.)

The King and Weaver article says:

The War Powers Resolution, passed over a Presidential veto, was a reaction to the undeclared war in Vietnam and was intended to limit Presidential discretion in sending American troops into hostilities without consent of Congress. Opposed by every President since it was enacted, it says the President must consult with Congress before introducing the armed forces ”into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”

The Foreign Affairs Committee complained in a letter to the White House that sending the Sixth Fleet into the Gulf of Sidra, fully expecting a military reaction from Libya, constituted just such a situation.

But yesterday, in a letter to the committee signed by William L. Ball, assistant to the President, the Administration said it did not believe that ”the resolution was intended to require consultation before conducting naval maneuvers in international waters or air space” – an interpretation that would eliminate roughly two-thirds of the world from provisions of the resolution if the action was characterized as ”maneuvers.”

The letter said that the question had been ”carefully considered” and that Administration lawyers had concluded, ”The operations did not place United States forces into hostilities or into a situation where imminent involvement in hostilities was clearly indicated by circumstances.”

So: First, this was, obviously, another dispute about statutory interpretation — whether the WPR applied to the situation at hand, not whether some or all of the WPR was unconstitutional. Second, it was not about the 60-day clock provision.

Finally, obviously, saying that every president has opposed a law is not the same thing as saying that every president has considered that law to be unconstitutional; one can oppose something as a bad idea and even think Congress should repeal it — like supporting the unsuccessful 1995 attempt to repeal the WPR — without also thinking that Congress had no constitutional authority to enact it in the first place. But Griffin may be right that ordinary readers might not catch that distinction, so this could also have been a contributing factor in the rise of the myth.

At this point I doubt anyone other than the two of us are still paying attention, so I’ll stop nerding.