War and Deceit: Why Obama “Acts like Bush”

March/​April 2016 • Policy Report

Pulitzer Prize–winning journalist Charlie Savage of the New York Times has been covering post‐​9/​11 issues since 2003. His new book Power Wars, based on interviews with more than 150 current and former government officials, tells the inside story of why the Obama administration continued and expanded Bushera programs related to the war on terrorism. He discussed the book, which Cato vice president Gene Healy described as a “one‐​man 9/11 commission report,” at a Cato event in January. Michael Glennon, the author of National Security and Double Government, offered his comments as well. Savage’s remarks suggest that the Obama campaign team may have deliberately obscured his position on national security issues. At a Cato book forum several weeks earlier John M. Schuessler of the Air War College and author of Deceit on the Road to War: Presidents, Politics, and American Democracy argued that deception is a feature of democracy.

CHARLIE SAVAGE: In January 2009 when President Obama was inaugurated, there was a moment in which it looked like the war on terror was suddenly, abruptly, over. He had run on a platform of change from George W. Bush’s global war on terrorism, and had been a big critic of how the government had conducted itself in the years after 9/11. In his inaugural address he talked about getting away from the sense that there had to be a tradeoff between constitutional ideals and security. Among the first things he did was issue a series of executive orders promising less secrecy, closing CIA black‐​site prisons, banning torture, and ordering Guantanamo closed.

But very quickly it became apparent that the war on terror was not over — that there would be much greater continuity in the counterterrorism policies of the Bush and Obama administrations than the expectations created by then‐​senator Obama’s campaign rhetoric. Some of his incoming cabinet members, in little‐​noticed remarks during their confirmation testimony, had affirmed that in fact they thought it was lawful for the government to hold terrorism suspects without trial under the laws of war, that they were going to continue the practice of extraordinary rendition — transferring people to other countries from one intelligence agency to the next based only on diplomatic assurances that there would not be mistreatment — which was exactly Bush’s policy, at least on paper, as well. They temporarily shut down military commissions, but they’d done so in a way that looked like they were keeping the door open to resuming them, which is of course exactly what happened. They were asserting the state secrets privilege in court, to continue blocking lawsuits about torture and surveillance that they had inherited from the Bush administration — and all that was apparent by two or three weeks into the new administration.…

I continued to cover these things, and I became very interested in the targeted killing of the American citizen Anwar al‐​Awlaki. I brought a lawsuit along with the ACLU — two different lawsuits — to try to make them reveal their legal thinking about the scope and limits of the government’s power to target an American citizen who had not been convicted in a court. Then in the midst of that, Edward Snowden leaks massive amounts of documents about the surveillance state, and it becomes clearer than ever that Obama has not changed, really at all, the NSA apparatus that he inherited, including the bulk collection of domestic phone records. And that’s when I decided that this stuff really needed to be organized in a book. I couldn’t do it justice in newspaper form, there was just too much material, and everything related to everything else.…

Arising from this are some big‐​picture questions, and the biggest of them all is “How is it that Obama has had so little change from the policies that he inherited from the second‐​term Bush administration that people keep saying he’s acting like Bush? How did we get here?” I put forward an argument that to “act like Bush” can mean more than one thing. During the Bush years there were two different strands of criticism that were entangled together, but in fact distinct.

There was a rule‐​of‐​law critique, and there was a civil liberties critique. The civil liberties critique says, “It’s inherently wrong to have a warrantless wire‐​tapping program, or to torture, or to have a system of military commissions, because the state should not have that power vis‐​à‐​vis the individual. This is un‐​American.” The rule‐​of‐​law critique is agnostic about whether these things are a good idea or a bad idea — with the exception of torture, torture is always illegal — but it’s focused on the process. The president doesn’t get to break the law. And so if a federal statute says you must get a warrant to wiretap on domestic soil, even in wartime, the president doesn’t get to say in secret, “I’m the commander‐​in‐​chief, I can ignore that.” The president has to go to Congress and persuade lawmakers to remake the law.

One of the big differences between the rule‐​of‐​law critique and the civil liberties critique is that the rule of law critique is fixable. If something violates the rule of law, Congress can pass a bill to change the law. And in fact, in the second term of the Bush administration, Congress passed the Military Commissions Act, and passed, with Senator Obama’s vote, the FISA Amendments Act. We know now, though we didn’t at the time, that the Intelligence Court was issuing secret rulings that took these unilateral programs that were collecting everyone’s phone and email records and rooted them in a somewhat tendentious claim that the Patriot Act authorized them and imposed court oversight. So by the time Obama becomes president, if you think “acting like Bush” means violating the rule of law in the national security sphere, the problem is largely fixed. If you think “acting like Bush” means violating civil liberties, the problem is not fixed.

Barack Obama is a lawyer, obviously, and Joe Biden is a lawyer: this is probably the most lawyerly administration ever. Obama and Biden are clearly the most comfortable when they’re talking to fellow law school graduates who analyze problems the same way, who speak the same lingo. So they fill the upper ranks of their administration with fellow lawyers — an easy example I can give is secretary of state. Bush’s two secretaries of states — Condoleezza Rice and Colin Powell — were not lawyers. Obama’s — Hillary Clinton and John Kerry — are, and that replicates itself throughout the upper ranks of the national security political apparatus.

So if their lawyerly approach to problems is brought to bear on what they think the problem is with Bush, not surprisingly, if you go back and look at the Bush years, Obama and his allies were articulating the rule‐​of‐​law critique, not the civil liberties critique. I’ll close with a story that illustrates the themes I’ve been talking about. In 2013, when Snowden reveals the bulk phone records program, there’s this eruption on the left and the right — civil libertarians on the left, libertarians on the right — there’s no political support, and it leads ultimately to the enactment of the USA Freedom Act. It’s therefore pretty surprising in retrospect that Obama kept this program. One of things I reconstructed was the meeting at which he learned about it and decided to keep it. That was February 6, 2009, and sitting around the table in the situation room were members of the permanent security state — the Office of the Director of National Intelligence, the Bureau of Investigation, the Central Intelligence Agency, the National Security Agency. They claim that if we had had it in place before 9/11 we would have stopped those attacks (which is a claim that doesn’t withstand scrutiny once the program comes to light, but that’s what they said). And Obama says to them, well, I’m comfortable with what you’re telling me, but I want my lawyers to take a look.

Greg Craig, White House counsel at the time, nicely let me say to my readers, and now to you, what it was he said when I asked him, “Why did you guys keep this thing? Look how little support there was for it across the ideological spectrum. Why didn’t you guys just tell the president ‘we think you should turn this off’ the moment you learned about it? You could’ve avoided this huge headache.” And his answer was, “Well, look. Attorney General Eric Holder and I are both criminal lawyers.” Craig was a former public defender and Holder was a former prosecutor — they’d done a lot of criminal trials in which police had used pen register trap and trace devises to collect records of who a suspect was calling or receiving calls from and when, not the content, and they knew very well that in 1979 the Supreme Court had ruled that the Fourth Amendment does not cover that kind of data. The reasoning behind it, why the Fourth Amendment doesn’t apply, doesn’t turn on volume — a million times zero is still zero.

It was very important to them that this had been brought under the Court’s oversight and rooted in a claim that a statute authorized it, and it didn’t seemed to be a rogue program, there seemed to be legal authority for it, at least on the surface. And so the question then was not whether to keep it or not — the intelligence community wanted it and there was legal authority for it so the task was just to get it within the bounds of what the court had authorized. They added a little internal oversight, and that was it. They didn’t think about it again until Snowden came along.

MICHAEL GLENNON: The great significance of this book, in my reading of it, lies in the massive documentation of the dominance of the permanent security state, as Charlie refers to it. Its influence is often subtle, and almost always behind the scenes, but it is nonetheless pervasive in the Obama administration, every bit as much as it was in the Bush administration. “The national security bureaucracy is a powerful force,” Charlie writes, “and on many occasions the Obama team bent to its warnings that particular counterterrorism actions were necessary.”

The number of holdovers, officials who held the same or similar jobs in both administrations, is quite remarkable. Over and over, key decisions were made or influenced by ever present careerists. The law governing their conduct is blurry and malleable, giving them broad power that’s exercised with little accountability. They thrive on secrecy: “The permanent bureaucracy gets nothing from transparency and sees it only in terms of risk,” an administration official tells Charlie. Page after page of Power Wars provides evidence of its reach. No branch of government is immune to its influence — the president, Congress, and the courts all defer to it. When it comes to national security matters, the president is more presider than decider. Charlie cogently explains why: “For all the focus the media and historians tend to put on presidents as individuals — Bush did this, Obama did that — the world and the government are so complicated that a single person cannot pay attention to all of it. Presidents set the tone and the priorities, and they usually are the ones who make the very biggest decisions. But the overwhelming majority of what an administration does takes place in the trenches of the executive‐​branch bureaucracy. Dozens or hundreds of officials whose names are unknown to the public and who rarely show up in history books make decisions every day about matters that most likely will never be brought to the president’s personal attention or that may be discussed only briefly in the Oval Office at a ten‐​thousand‐​foot level.” The book is filled with examples of what Charlie is talking about. As time goes on, whistleblower prosecutions go from three before the Obama administration to nine during the administration — or eight, as Charlie points out, depending on how you count.

And the increase is driven not by a conscious decision by anyone in the administration — Charlie says he can’t pinpoint any decision by any official to pick up the tempo, but it’s driven instead by improved surveillance technology, which makes it easier to identify leakers. So prosecution is basically on autopilot. “Autopilot”: the term that John Kerry used to explain the continuing surveillance program that intercepted Angela Merkel’s cellphone communications, which Obama of course said that he knew nothing about. The result is a policy of prosecution that has removed one last check on the permanent security state by crippling investigative journalism in this country, a program that has proceeded with no decision to start it, no decision to continue it, and of course, no decision to stop it.

JOHN SCHUESSLER: Academically, there is a long‐​standing debate about the virtues or lack thereof of democracy in international affairs. The prevailing wisdom is that democracies are simply better than non‐​democracies when it comes to the big decisions in foreign affairs: when to go to war, when not to, when to cut losses, and so on. And a lot of this boils down to a more specific set of arguments about institutional constraints, which is kind of a set of terms that makes the eyes glaze over, but it basically comes down to the fact that democratic leaders are accountable in ways that nondemocratic leaders are not. They have to answer to the voters for their decisions, and they have to make arguments in public and persuade people, and those arguments can be vetted and challenged and rebutted if they’re flimsy or deceptive. An important implication of this is that democracies generally pursue more prudent and successful foreign policies than non‐​democracies.

I didn’t want to burn the whole house down and say that this is all wrong, but anyone going through that period in the early 2000s where the Iraq War was front and center is going to have some questions about this idealized model of democracy and the democratic process, and whether that accurately captures the way democracies make these big decisions. Others have usefully challenged the veracity of this model — my particular take on it was to look at what I saw as the political use of deception to overcome some of the institutional constraints that were normally discussed: the need to generate public consent, the need to prevail in the marketplace of ideas.

And when I talk about “deception,” I mean something very specific: deliberate attempts on the part of leaders to mislead the public about the thrust of official thinking, in this case the decision to go to war, as well as the reasons to go to war. “Deception” the way I mean it is a broader concept than “lying” — lying is actually fairly rare, at least in my imprecise measurement, in that it’s actually easy to catch bald‐​faced lies. They can be fact‐​checked. But deception is harder to definitely rebut or catch. It involves spinning, it involves concealment, it involves putting together facts in misleading ways as opposed to just flat‐​out misstating them. Deception, I would argue, is more pervasive than lying, and for that reason I think is more problematic.

The argument I make in the book is essentially not just that deception is something leaders occasionally do that poses a problem for these big arguments about democracy and war, but that it’s actually a natural outgrowth of the democratic process. That the very institutional constraints that the scholarly wisdom has emphasized encourage leaders to mislead the public on these big decisions. And this is basically because elected leaders have good reasons to maximize domestic support for war. War is a costly, high‐​stakes endeavor, it can redound to the disadvantage of leaders who get the country into losing or misguided wars, and so leaders want to go into a war with as much domestic support as possible. This is all actually highlighted by the prevailing scholarly wisdom. Where I think the wisdom goes wrong is in missing the tools that leaders have at their disposal to rig the process.

Download the Policy Report Article