“Governing had turned out to be more complicated than criticizing from the private sector or campaigning.”
–a senior Obama administration official.
This key insight and hundreds of other juicy vignettes are on full display in Charlie Savage’s blockbuster 769-page tome Power Wars: Inside Obama’s Post 9/11 Presidency. Readers of Lawfare no doubt will be fascinated by Savage’s inside baseball view of complex topics such as detention, surveillance, targeted killing, leaks, secrecy and other interrelated issues. But the book has much broader appeal than to those in the national security law bubble, as it portrays the historical arch within the administration as they tried to pivot away from the perceived excesses of the Bush administration and chart their own way forward, only to find themselves continuing—with modifications—many of the same policies.
This is not a typical book written by your “average” Pulitzer Prize-winning author. Savage not only covered the topics in the book as a reporter for the New York Times and elsewhere (he co-taught the subject at Georgetown), he is an antagonist, a provocateur, a litigant (mainly via FOIA requests), and recipient of troves of government documents, memos, and the like. Savage is, to quote Jack, “deeply sourced inside the Obama administration,” and his book offers a “rich blow-by-blow account of how and why the administration determined the legality of its war-on-terrorism policies.” Jack’s “deeply sourced” description is an understatement, as Savage reveals the contents of never-before released documents, memos, and internal deliberations across a variety of topics.
In sharp contrast to his book about how the Bush legal team approached the war on terror, Savage points out how the Obama team, which he describes as “government by lawyer, methodical and precise—sometimes to a fault” sometimes “seemed paralyzed, grappling with a problem from all sides and then putting it off to be taken up again at the next meeting.”
Said another way, Savage shows time and again throughout the book how the legal debate, among the executive branch interagency national security lawyers group, often substituted for a more public policy debate.
Savage covers the most consequential national security topics/challenges the administration faced, and identifies the trigger points that forced the administration to grapple with the legacy of law and policies inherited from the Bush years and apply those lessons learned to evolving events. But rather than repeat some of the insights that others have made about the book, like Matt Waxman’s Time magazine post, or Jack or Jennifer Daskal or Laura Donohue’s reviews—all of which are worth reading—I want to focus on other aspects of the book that I found compelling.
Naturally, as a former DASD for Detainee Policy in the Bush administration, I have closely followed this administration’s detainee policy. The first 161 pages of the book deal with the interrelated issues of detention and interrogation policies of Guantanamo, CIA, and other attempted terrorist attacks against the United States during the administration.
The book opens with the attempted terrorist attack on Christmas Day 2009 by Umar Farouk Abdulmutallab (UFA). Dubbed the “underwear bomber,” the terrorist-trained UFA had plastic explosives sewn into his underwear which he tried to deploy as the Northwest airlines passenger plane was getting ready to land in Detroit.
In the first of many scoops sprinkled throughout the book, Savage tells the full story of how the underwear bomber imbroglio tested the new administration legally and politically. After UFA was taken to a local hospital to treat severe burns, career FBI agents spoke with his nurse, then UFA—without Mirandizing him. They made the call not to Mirandize him. UFA told the agents, during a 50 minute interrogation, that he had gone to Yemen hoping to join jihad and other details of his training and travels. UFA was then taken into surgery.
Meanwhile, the national security intelligence establishment was cross-checking UFA’s story, which was starting to check out as most likely true. The question for the career FBI agent was, can he stretch the legal limits and do another follow-up interview with UFA relying on the Quarles public safety exception, or should they Mirandize him?
Critics at the time suggested that Attorney General Holder gave the order to Mirandize UFA, but in fact it was an FBI agent who made the call after weighing the legal issues and applying his practical experience to the case. When a different set of FBI agents approached UFA and read him his Miranda rights to get a “clean” statement from him, they found UFA rocking in his bed praying. UFA told the agents, “I’m going to kill you.” End of interview.
There were political and policy fallouts from the UFA incident. Republicans pounced, accusing the administration of treating terrorism as a mere law enforcement matter. Things got worse when Homeland Security Secretary Janet Napolitano said the “system worked.” In the closing days of the special election to fill the late Senator Ted Kennedy’s seat, Scott Brown played up his national security credentials, specifically using the UFA incident to his political advantage.
Of course, the UFA case was not, as I said in the media at the time, a whodunit, nor was it a difficult case to prove in federal court. He was literally caught red handed. The government did not need any statements from him to prove its case beyond a reasonable doubt.
But the UFA incident affected the administration on many levels. John Brennen, the hardened Bush counterterrorism veteran, gained more influence inside the administration, and also started showing up on television more often. David Axelrod started attending terrorism-related policy meetings. Most importantly, with respect to briefings about counterterrorism operations, Obama morphed from a passive listener to an aggressive questioner.
Savage maintains that the “consequences of the Christmas attack would ripple for years,” pointing out that by the end of 2010, the “still Democratic-controlled Congress” delivered the “coup de grace” by barring the Obama administration from bringing Guantanamo detainees to the United States for prosecution or continued detention. I have a slightly different take on the series of events that lead the Congress to turn against Obama, found here.
However, the most important policy fallout from the UFA incident—according to Savage—was Obama’s decision to kill Anwar al-Awlaki, an American citizen, with an armed drone.
Savage delves into how the administration dealt with capturing high-value detainees (HVD) off the battlefield. Since taking anyone to Gitmo was off the table, Savage lays bare the development of the hybrid model: capturing the HVD; interrogating for intelligence purposes; then transitioning to civilian custody for a federal terrorism trial. Noteworthy examples include Warsame---who became the model for future cases, Ahmed Abu Khattala, and Abu Anas al-Libi.
A major section of the book (pages 350-414) details what Savage calls “the leak crackdown.” A serial benefactor of leaks, Savage does not hide his disgust at the administration’s “crackdown” of leakers, saying he opposes the “criminalization of unauthorized disclosures.” To Savage, “there have always been unauthorized disclosures of information to the news media. That is how Washington works and has always worked.”
Of course, readers of Lawfare are keenly aware of the gradations of leaks, from non-public information selectively leaked to influential reporters to shape the news, to leaking highly classified material in violation of ones’ written promises not to do so. He distinguishes between leaks and whistleblowers; the latter, he asserts, “expose waste, fraud, abuse of power, or illegality.” There are, to Savage, good leakers, who act as a “counterforce against overclassification.” Overclassification “scares” current and former government officials with “socially valuable information into not speaking to reporters about it.” He concedes that there are “bad leaks” which “may impose social costs that outweigh its social benefits,” but in Savage’s opinion, most leaks “are not like that.”
Given the sheer volume of sensitive documents disgorged by Obama administration officials to Savage, one wonders how many times the author wondered, or even worried, that he might come under government scrutiny. Knowing his predisposition regarding the value of leaks helps the reader evaluate his treatment of distinct leak cases, including: Leibowitz, Drake, Manning, Kim, Sterling, Kiriakou, Snowden, Sachtleben and Petraeus.
Savage’s book is a must-read for anyone who wants a fly-on-the-wall view of how the administration wrestles with complex legal issues during wartime. It is not a purely objective narrative, as it has been shaped by a talented writer, protagonist, and litigant who clearly admires the Obama administration’s overall approach to the war on terror and has developed deep ties (friendships?) with many of its key players who provided Savage with unparalleled access and material. He is an admirer, on some level, of the lawyerly, methodical approach taken by senior administration attorneys, and that comes through. But he also recognizes and highlights the potential paralysis that that approach can cause when events unfold quickly.
President Obama came to office promising to end two wars responsibly, to end torture, to close Guantanamo, to re-establish the rule of law, and to renew our international reputation and alliances. But the world is a messy and complicated place, and the President has to deal with world events as they happen, not as he wishes they would happen. Seven years into the Obama presidency, Guantanamo is still open; military commissions still exist; drone warfare has increased, we are in a state of armed conflict against non-state actors, and surveillance of the enemy continues.
In August 2007, then-Senator Obama said that the Bush-Cheney administration put “forth a false choice between the liberties we cherish and the security we demand.” In June 2013, President Obama said, “I think the American people understand that there are some trade-offs involved…that you can’t have a hundred percent security and also have a hundred percent privacy and zero inconvenience.”
How Obama evolved over those years is explained exquisitely in Power Wars: Inside Obama’s Post 9/11 Presidency.