How Obama ‘Legalized’ the War on Terror
EDITOR'S CHOICE | 08.05.2016

How Obama ‘Legalized’ the War on Terror


Among the troubling legacies of Barack Obama’s presidency is his consolidation of the dubious legal principles that George W. Bush cobbled together to justify the Global War on Terror, explains Michael Brenner, professor of international affairs at the University of Pittsburgh.

President Barack Obama’s uneasy encounters with the law in devising numerous innovative means to prosecute the «War on Terror» are treated exhaustively in Charlie Savage’s much discussed book, Power Wars. This compendious volume is destined to be a landmark in the writing of the period’s history.

It also should be seen as a marker of its times as it at once explains how Obama sought legal grounds by which to justify methods that skirt the Constitution and takes at face value the assertions of those who claim to have done a conscientious analysis of the laws and the Constitution without prejudice.

Therein lies the heart of the dilemma associated with an account of this kind. For there are two broad approaches available. One is to surmise that policy preferences were made prior to and independent of the legal exegesis – however elaborate that exercise may have been.

The other is to give the participants, in the Oval Office on down, the benefit of considerable doubt in ascribing to them an earnest dedication to ascertaining where the legal boundaries lay before the decisions were taken on policies and programs.

Savage doesn’t make a choice – explicitly. He does so implicitly, though, by concentrating on a systematic account of the deliberative process among the lawyers charged with demarcating legal territory. For this purpose, he spent hundreds of hours interviewing those officials. The strategic and political dimensions are present only as background factors.

Rarely does Savage address the key question of how the latter intruded on the former – and then only obliquely. The author apparently did not press the respondents very hard to reflect on how their legal opinions might have been affected – wittingly or unwittingly – by what they knew of the Obama White House’s predispositions.

Consequently, the analysis is caught in the snare of literalism. So much so, that Savage refrains from facing squarely the possibility that the officials queried may have had an incentive of a careerist nature to view issues in a particular light.

Favorable Reviews

Most reviewers of the Savage account accept the validity of its underlying premise. As David Luban writes in The New York Review of Books: The lawyer’s «domain is the arcane network of laws that constrain the president as he wages» the War on Terror. «If the president’s lawyers tell him that a policy is illegal, he will have a hard time carrying it out».

This is what we Americans would like to believe. But is it true? The record suggests otherwise. One must strain mightily to find instances 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.

Savage can only cite two instances in support of this thesis. The first concerns the administration lawyers’ tergiversations in trying to find some statutory basis for the military intervention in Libya.

As Luban paraphrases Savage: «the lawyers didn’t think the solution they eventually came up with was the best reading of the law, merely that it was ‘legally available.’»

This satisfied Obama because what he wanted, and expected, was a record of legal deliberation rather than a clear-cut judgment of what the law approved. Ambiguity was fine. Surely, his lawyers were well aware of this – as on other matters.

The other case centered on the question of whether the Patriot Act of 2001 provided sufficient grounds for attacks on al-Shabaab in Somalia, which at that time was not officially affiliated with Al Qaeda. The Defense Department’s General Counsel, Jeh Johnson, created some static by issuing the stunning opinion that al-Shabaab could not be judged as «associated force» as stipulated by the statute. Technically, this countermanded a planned strike by Special Operations Forces.

Did the law make a difference – as Savage asserts? Manifestly, it did not. The United States has launched drone strikes and raids into Somalia steadily for the entire seven years of the Obama presidency. Three weeks ago, it boasted about the success in killing over a hundred «fighters» at a supposed training camp.

The drone campaign develops: The Pentagon has announced that it has devised a new formula for estimating what level of «collateral» civilian casualties is acceptable from a conjectured strike – relevant factors include the value of the target, chances of success, and the demographics of the hypothetical «collaterals».

Moreover, the White House also has sent Special Forces teams into 42 other countries to deal with militants whose Al Qaeda (or ISIL) connections were vague or non-existent, without an official formula for measuring unwanted casualties.

The place of the Patriot Act in these lawyerly discourses is of central importance. Time after time, the debate turns on the question of whether the provisions of the Act are applicable to a particular place or action. There was a strong tendency, glossed over by Savage, to take the Patriot Act to be tantamount to a Constitutional Amendment – or, at least, some sort of Basic Law superior in legal standing to all other statutes.

Of course, there are no legitimate grounds for doing so. Indeed, several provisions of the Act are of dubious Constitutionality. They have not been fully adjudicated because two successive administrations have fought tooth-and-nail to deny plaintiffs access to the courts, usually with the acquiescence of a supine judiciary.

The invocation of «state secrets,» especially in regard to rendition and torture, has been one of the preferred stratagems for doing so – in direct contradiction of solemn pledges given by candidate Obama in 2008.

Legal Architecture

The legal architecture of Obama’s version of the «war on terror» is as resistant to adjudication as was Bush’s more ramshackle structure.

How does a defendant prepare a defense when he is denied accusatory evidence on the grounds that it entails «state secrets?» How does a defendant in a non-terrorist case protect himself from the prosecution’s exploitation of evidence obtained without a court warrant when its source is kept secret because it was the fall-out from a national security surveillance case?

How does a plaintiff gain standing to bring suit when the courts agree with the Executive’s assertion that the individual in question must demonstrate having suffered personal damage? How does some American citizen on Obama’s «kill list» appeal for redress when required to make a personal appearance in a United States court – transit to which might make him vulnerable to murder by American authorities?

Anwar al-Awlaki’s father made a legal attempt to question his son’s inclusion on the ’kill list’ but was denied standing. It remains unclear whether the presentation of the cadaver would have changed the court’s ruling. Following the Court’s logic, Awlaki would have been required to address his complaint from beyond the grave.

Two weeks later, Awlaki’s Denver-born teenage son was a collateral victim of a second Predator strike that killed an alleged Al Qaeda in the Arabian Peninsula member.

It seems that only another branch of the federal government, or a state government, has a chance of forcing judicial review of Executive actions of questionable legality/constitutionality.

Where there is consensus among them that a state of national emergency renders that pursuing such a theoretical option itself constitutes a threat to the country’s security, no citizen or group of citizens has recourse to the courts for redress of grievances. Savage disregards this overarching issue.

Think for a moment where that leaves us. On the one hand, a Christian Salafist in Texas can be heard by the Supreme Court in complaining that his fundamentalist interpretation of the Bible doesn’t permit him to administer paycheck withholdings of health insurance premiums where the coverage extends to the policy-holder (with whom he has no personal relationship) a right to certain procedures – procedures that he, the employer, judges abhorrent – and win his case.

On the other hand, someone whom the President of the United States, acting at his own discretion behind his Oval Office desk, has checked off as a Hellfire missile target has no judicial recourse whatsoever.

That reality may not require a 700-page book; however, there is a convincing case to be made that it is far more important for the future of law in this Republic than the nuanced phrasing in a memo drafted by a lawyer deep in the engine room of the Executive legal machine which the ultimate decision-maker never reads – and, had he noted it, never would have done anything different.

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Tags: Al Qaeda  Obama