Balkinization  

Monday, September 26, 2011

Charlie Savage on Bush and Obama Administrations

Sandy Levinson

Charlie Savage, who deservedly won a Pulitzer Prize for his coverage of the signing statements during the Bush Administration, delivered a terrific speech last week at a Harvard conference on law, liberty, and national security titled "POWER WARS: UNMASKING NATIONAL SECURITY LEGAL POLICY DELIBERATIONS UNDER BUSH & OBAMA." He basically argued that the Bush Administration, thanks to Dick Cheney, was obsessed with establishing the legitimacy of unilateral presidentialism, duly criticized by candidate Obama for its overtones of prerogative power. On the other hand, we can now see that the "rule of law" critique of Bush is very different from a substantive "civil liberties" critique, and the Obama Administration is quite happy to engage in strong shows of executive power inasmuch as, thanks to Congress during the second Bush administraiton, there is all sorts (and too much) authorization for same. In any event, the speech is available for Kindle downloading (for $.99) at
http://amzn.to/ozErr1. It is well worth reading in full. There really is no journalist who's better on such issues.

I'm glad to open this to comments, but ONLY from people who in fact read Savage's talk.

Comments:

From what I can gather from various discussions of the speech -- which summarize and quote -- the overall approach is a promising nuanced examination of the Obama Administration that goes beyond the "same old same old" approach of some to provide a good criticism.

"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."

This sort of thing repeatedly is cited as if we didn't know BEFORE THE ELECTION that he was willing to compromise, at least if the compromise was a matter of legal rules with some safeguards.

The FISA immunity issue, a major disappointment on his part to some supporters, before the election underlined the point. If he was willing to compromise there, why would "hope" be justified without a large grain of salt.

OTOH, rule of law + some restrictions + more openness (which one account quotes him as concerned about, underlining the importance of media reporting, again, citing him) is something.

Criticism would thus take various things into consideration (rule of law, civil liberties, openness, force of executive power put in place, restrictions of all types) and to the degree Savage examines this, appreciated.

I will consider paying the dollar, but it's hard when he makes various of the same points for free in other avenues. I guess with free content, including video, one gets greedy these days.
 

"Content" has always been free -- it's expression you pay for. If you're confused, ask any IP lawyer :)

You really mean "material".

Yours for correct use of "content".
 

So I sprang for the 99 cents, but I am not sure what the big insight is here. It is true that the Bush administration made a concerted effort to enhance executive power for its own sake (I could have told Savage that a year or two before he figured it out), while that is not the case for the Obama administration.

Does this mean the latter is more devoted to the “rule of law”? That seems to be Savage’s assumption, but it is not clear that he even realizes that it is an assumption. It seems to me that one could argue that it is less consistent with the rule of law to take stretched legal positions when they happen to suit an immediate political need, as opposed to consistently arguing for a broad view of executive power.

Savage’s distinction between the rule of law and civil liberties gives the layman a framework for understanding the differences between what Obama promised and what he delivered, but at the cost of misleading the reader into believing that this is a clear-cut or well-established distinction. Certainly some people would argue that respect for civil liberties is an essential part of the rule of law, just as some would argue that a broad view of executive power is inconsistent with the rule of law.

These questions are highly complex and involve more than a little subjective judgment. There was a lot of (justifiable) criticism of John Yoo’s legal craftsmanship, but the objections had a lot more to do with moral judgments about the results Yoo was trying to reach. Conversely, when people favor the results (eg, Libya, DC voting rights, DOMA), they tend to be a lot more sympathetic to equally fatuous legal reasoning. Sometimes they even demand fatuous legal reasoning. See the Public Debt Clause.

I appreciate Savage’s attempt to grapple with these issues, and to provide a “nuanced” view, but I don’t think he has yet grasped 99 cents worth of the nuances.
 

There is a value to respecting limits, even if you make a questionable case within them. Consider a lawyer who has to defend a client but doesn't have much to work with. So, s/he provides the best case, doing so openly and in an aboveboard way, following the rules.

mls also brought something up I know many think is true -- many, so is the argument, don't really care about the rule of law as such, just results. So, the reasoning of Yoo isn't the problem, it is what he tried to reason toward.

But, there are various people who are upset with Yoo just on the reasoning. There will continue to be some who simply will not believe this. This applies politics as a whole. It is pointed out that centrist/right leaning sorts agree (e.g., "Broken Branch") that one side is worse, but the message is "they all do it, you just care about results," which is misleading.

The reasoning in various cases is not "equally fatuous" and the evenhandness doesn't quite ring true per past comments on how bad Yoo actually was. Long after the cat is out of the bag, some "generously" admit he might be bad (but, surely, he shouldn't actually be penalized ... it's deep down still quite debatable) but "they all do it" you know.

I doubt it took Savage a year or two to figure it out. But, if you want to think you are more insightful than him on the point, have at it.
 

Joe- at this point, I don’t recall what the state of public knowledge was regarding the Bush administration’s approach to executive power prior to 9-11. I can tell you for a fact, though, that I was well aware of it. This is not a claim of special insight on my part- it was my job to represent Congress on disputes with the executive branch. Just as one example, a few days before 9-11, I attended a meeting at the White House where John Yoo explained to me that the administration was determined to restore what it viewed as a proper understanding of executive privilege vis a vis Congress.

According to Savage’s account, this “insight” (the word he uses) came to him sometime after the 2005 controversy over the McCain amendment (so actually I could have told him this 4 years or so earlier). Maybe it was a revelation to the mainstream media at that time- I am just observing that it wasn’t exactly a closely guarded state secret.
 

Nearly every President of both parties has chafed under the various post-Vietnam/Watergate congressional and self imposed checks on the CiC powers. Bush used 9/11 as an opportunity to reverse a portion of those constitutionally suspect checks. Once Obama and his team started taking intelligence briefings and learned how the world really works, they had many of the same debates and arrived at many of the same results as did Bush and his team.

As an aside, Obama's eager use of Bush expansions of executive power are hardly limited to national defense. Congress reluctantly created the TARP fund to enable Treasury to purchase, reorganize and then resell asset based securities (ABS) with subprime home mortgages mixed in. When the banks refused to sell their ABS for pennies on the dollar and the financial sector did not melt down as predicted, Bernanke and Paulson met in private with the bankers and forced them to take TARP loans so that the program would be used. Later, Bush used TARP to make loans to GM and Chrysler. In short, Bush illegally turned TARP into a presidential slush fund. When Obama took office, he was more than glad to put the slush fund to work nationalizing GM and Chrysler, quasi-nationalizing Fannie and Freddie, and financing his various mortgage restructuring schemes.
 

This comment has been removed by the author.
 

The fact that Cheney has long held the belief that executive power was held in abeyance too much since the Nixon years was known before the election & not only by insiders. Looking at the people on the legal team also would be revealing.

The concern that the Bush Administration wanted to use executive power for its own sake when it was counterproductive even to their ends was a matter of public controversy before the 2005.

I have not read the article in full but don't know what sort of "insight" he had where Savage was not aware of this until 2005 or so. Since it would require questioning him & digging thru old reporting, my response remains somewhat agnostic, but doubtful.
 

Is this essay available in a format for those of us without a Kindle?
 

Doug, you can read Kindle books from your browser now. So far only Chrome and Safari are supported, but Chrome is available on just about everything.
 

Thanks. I have a Mac so Safari is most definitely here!
 

Jpk,
Brillaint comment, in so many ways.
 

did anyone read Charlie Savage's NYT piece on the Awlaki memo?
 

“Yoo’s critics, such as Georgetown Law professor and fellow Office of Legal Counsel veteran Martin Lederman, went one step further: Because of the Military Commissions Act, the Bush-Cheney legal team’s dubious theories about a president’s vast wartime powers were now completely safe from any further judicial repudiation. And in the future, other presidential legal teams, charged with writing secret Office of Legal Counsel memos telling the president what he can and cannot do, can similarly go down radical paths with the impunity that comes from having no fear of judicial review. Now more than ever before, the law would be simply whatever the president’s handpicked lawyers said it was.” Charlie Savage, Takeover 323.
 

The latest in the NYT about the memo said that Marty Lederman and David Barron (who co-wrote two long articles on the limits of executive power in wartime) were primary contributors.

I wouldn't be surprised if one or both were among the anonymous sources who discussed it. So tiresome. Release the damn memo. Can Lederman, as he opines on administrative position (mostly positively) over at Opinio Juris etc. lead the effort to release the memo ala Jack Goldsmith's suggestion? Goldsmith's policy: conservative leaning policies prudentially.

As Levinson and Ackerman (sans comments -- people's constitution w/o the people?) are critical, Mr. Lederman is no longer posting much around here. But, we are all a family around here, right? Perhaps, he can be encouraged.
 

I have an idea. Why don't law professors like Goldsmith, Lederman, etc. write to Congress and ask for it to subpoena the memo? Congress can then determine which portions should be released to the public. Given that much of its reasoning has been splashed across the NYT, there is certainly no reason to keep it secret.
 

I'm sure law professors -- maybe not them but some -- petitioned Congress to do things like that before.

Congress "can" with or without their encouragement subpoena the administration, perhaps with Ron Paul asking them to do so as he is on the stump raising impeachment as an option as the administration (apparently -- the memo is supposed to be about 50 pages, so not sure how much of it was cited in that article) in part using AUMF 2001, that he voted for, to do things of this sort.

Sure that will go on with all deliberate speed, perhaps with executive privilege cited and all. OTOH, since many in Congress want to give the President MORE discretion and all, for this and for other reasons, not holding my breath.

But, I'm all for encouraging our former regular here, Prof. Lederman, to ask though I think the memo should be released, not whatever Congress thinks should be. Of course, they are in effect doing that by inaction already.

If one member of Congress sees it, s/he can also ala Mike Gravel, read the damn thing into the record, redacted if desired, via the Speech and Debate Clause, it is protected.
 

There may be legitimate arguments in favor of redacting some parts of the memo (eg, there could be intelligence info on Awlaki). I think that the administration should have the opportunity to make those arguments, but it shouldn't be the judge in its own case. So that's why I think it makes sense to get Congress involved.

While it is true that a member could read the memo into the record and have Speech or Debate protection, that wouldn't help them with the ethics committee.
 

As to redaction, which is reasonable, how does that usually work? Does Congress decide what is redacted on their own?

I'm sure if they actually subpoenaed the thing, some agreed upon redaction would be reached. There are legal guidelines and rules of executive privilege that would deny Congress the power to have carte blanche discretion here. So, just having "Congress" decide probably not workable.

The ethics committee doesn't impress me much. What are they going to do? I'd be interested (seriously) to see what violation of ethics they offer and the penalty for releasing a redacted version of the memo that justified the killing of a U.S. citizen.
 

"would" or "should if they were serious and pressed the issue even if they received some pushback"
 

mThe congressional rules on releasing classified information go back to the late 70s when the intelligence committees were established. Every member of the House now has to sign a declaration at the start of the Congress that he or she will not disclose classified information.

Since these rules were established, I don't think any member has deliberated entered classified information into the record. Senator Torricelli got in some trouble for divulging classified information in a floor speech, but I think he maintained that he didn't realize it was classified.
 

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It's duly noted that such rules are in place. My stance still holds particularly how other types of breaches are ignored or at best get trifling responses.

It is duly noted, as some risk criminal or civil penalties, members of Congress are unlikely to break the rules. At least, out in the open. There are always anonymous leaks.
 

FISA immunity issue, a big disappointment on the part of some of his supporters before the election,RS Gold, said the sectioneden gold. Had he been willing to make compromises out there.If you want to make a large quantity of ice creamcheap tera gold.
 

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