Executive Power

Law Wars: My Review of Savage's "Power Wars"

By Jack Goldsmith
Tuesday, November 10, 2015, 2:48 PM

"Law Wars" is the name that the editors of the New Rambler gave to my review of Charlie Savage's great new book, Power Wars.

My review begins:

In a testament to how law-dominated war has become, Charlie Savage has written a 698-page tome almost entirely about internal deliberations among Obama administration lawyers and national security officials about the “war on terrorism”—the second full-length treatment on this topic published during the Obama presidency.  (The first was Daniel Klaidman’s Kill or Capture.)  Savage is deeply sourced inside the Obama administration and has for years been writing authoritatively in the New York Times about the administration’s in-house legal theories and debates on controversial national security issues.  His book builds considerably on his earlier reporting to present a rich blow-by-blow account of how and why the Obama administration determined the legality of its war-on-terrorism policies.

And it ends:

Though law operates in these hard-to-see ways to guide and constrain Executive branch choices, Savage shows that law has not been terribly consequential in restraining large national security initiatives that the President deems important and that are “not laughably off the wall” from a legal perspective.  In Libya, against ISIS, in supporting the drone strikes, and in many other contexts, the Obama lawyers prodded the law along to expand presidential power and support presidential action. 

There is a single exception to this trend, a single context where the president fiercely desired to achieve an important national security goal but the lawyers do not appear to have yet given him the green light: closing the Guantanamo Bay detention center.  President Obama really wants to fulfill his first-week-in-Office pledge to shut down the Cuban facility and bring several dozen military detainees to the United States.  But firm congressional prohibitions stand in the way.  Prominent former Obama administration lawyers have urged the President to disregard these restrictions.  Their arguments sound a lot like Bush-era Executive power claims that they, and the President, once renounced.  Will current administration lawyers agree with these arguments?  Will they accommodate the President if he asks for permission to disregard the congressional restrictions?  It tells us much about the evolving attitude of Obama and his lawyers toward the constraint of law that we do not know.