Lawfare

Charlie Savage on Legal Policy Inside the Bush and Obama Administrations

By Jack Goldsmith
Monday, September 26, 2011, 9:53 AM

Charlie Savage of the New York Times has a long essay, available on Amazon (for 99 cents), called Power Wars: Unmasking National Security Legal Policy Deliberations Under Bush & Obama.  The essay is adapted from his keynote presentation nine days ago at the Harvard-Brookings conference on “Law, Security, & Liberty After 9/11: Looking to the Future.”

The essay is about both Savage’s role in covering legal policy related to national security, and his reflections on continuities and discontinuities between the Bush and Obama administrations on national security.  Here is a slice of the essay on the former issue:

I go forth into the world of government legal specialists, figure out what they’re thinking, and then bring that information back to real people and translate it so that they can understand what is happening and what the stakes are. Now, one of the hardest parts of my job, that perhaps this audience will appreciate, is that some simplification is inherent in translating a high-level legal policy discussion among specialists into an article that someone without a J.D. can understand. So there is a constant danger – and pressure from editors – to simplify too much, in a way that crucial nuances, not just superficial ones, are lost.

And here is a slice on the latter issue:

If the key to understanding the Bush administration is that they were seeking ways to expand executive power as an end to itself, the key to understanding how the Obama team sees what it is doing is that they are trying to show that you can fight a war against terrorists while operating within a framework of law. What seems clearer now than it was during the Bush-Cheney years is that there were two very different strands of criticism about the government’s post-9/11 legal policies that were all tangled up and conflated at the time. One strand was the rule of law critique: it said presidents have to obey federal statutes and treaties. The other strand was the individual freedom critique: it said that government officials should not have unrestricted power to wiretap people or imprison them without judicial authorization, regardless of whether Congress purports to grant them such power. So once Congress adjusted statutes late in the Bush years to kind of retroactively approve what the government had been doing, the rule of law concerns sharply diminished. But the civil libertarian concerns remained. Now we know that Obama was not the civil libertarian many of his supporters hoped he would be; he was just a rule of law guy.

An interesting essay.

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