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Power Wars Symposium: The Savage Effect

Editor’s Note: This is the first entry in a symposium Just Security is hosting in conjunction with this week’s release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage.

Anyone who has followed national security law in the last several years knows that Charlie Savage has become the go-to journalist in the field. When an important event occurs, one can often count on Savage to be the first to notice and write about it. During the year I worked as Special Counsel to the General Counsel at the Department of Defense, for example, I had the disconcerting experience of leaving a top secret meeting in the White House situation room and finding it reported in the New York Times (by Savage, of course) the very next day.

Now Savage has produced a book that brings together and builds upon the reporting he has done over the past six years into one single remarkably informed, detailed volume that offers an unparalleled look into the national security lawyering establishment under President Obama. Yet what struck me first in reading the book is not so much the story Savage tells, much of which was familiar (thanks in no small part to his reporting), but the way in which Charlie Savage is no mere observer of events. He is an important character in the very story he is telling.

As Savage himself repeatedly observes in the book, national security law is a closed shop. Very few are privy to the details of the legal and policy debates, in large part because many of the issues addressed are highly classified. But those debates have remained shielded from view not only because of classification concerns. The Obama administration (along with, it should be noted, every recent administration) has been reluctant to submit much of its legal reasoning on national security matters to public scrutiny. This is in part what has made Savage such a singular and influential figure in national security law in the last several years: He has developed expertise and understanding — and trust — that no other reporter can match. And thus he has become the conduit of choice for executive branch lawyers and others seeking to fix or avoid misunderstandings of government policies and practices, vent frustrations, shift debates by exposing internal fissures to public view, or burnish their own public image (not infrequently compromising their legal and ethical obligation not to disclose classified information in the process). Because he has developed so many contacts, Savage is also unusually effective in building a fuller picture of any given issue, talking to people across the administration to follow up on initial tips.

Many of the events Savage recounts in his book betray his influence. Savage’s prominent role was inaugurated with his clever executive power survey for presidential candidates, which he conducted when he was a reporter for the Boston Globe. In 2007, Savage asked all the then-candidates for President to answer a questionnaire on executive-power issues. Candidate Barack Obama explained in answer to the last question that, “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” The questionnaire helped bring Savage to the attention of the national establishment and became a touchstone for judging President Obama’s later policy choices — many of which, Savage rightly notes, dismayed many left-of-center supporters whose hopes had been raised by his campaign rhetoric. Savage also shows the ways in which the positions Obama took in the survey were often in tension with — and sometimes even in direct opposition to — positions he and his team took once he became President (see pages 450, 631-38, 668-69). The contrasts reveal the distance between the hopeful, idealistic, campaigner Obama had been and the battle-hardened (some would say co-opted) President he became. The contrast is not always an altogether comfortable one for the President, and he has sometimes even resisted it. Savage reports that Obama harkened back to the answer he gave to the Savage survey when he decided to seek congressional authorization for intervention in Syria in 2013 — a decision that surprised and confounded some of his closest advisers (page 653).

But this was just the first of many cases in which Savage shaped the events he describes. Savage has been a frequent, active, and often effective critic of the effort to keep many government documents secret. His employer, the New York Times, has filed several Freedom of Information Act suits on Savage’s and other reporters’ behalf to try to obtain information on its legal reasoning on various matters, including recess appointments (page 447) and the al-Aulaqi memos (pages 439, 452-53). Though not altogether successful, the suits put pressure on the administration to disclose more about its legal justifications and helped eventually lead to the disclosure of many previously closely held documents.

Savage was also able to bring attention to issues that had been put on the back burner. For example, his story about hunger strikes at Guantánamo appears to have helped push Obama to re-focus on closing the prison (pages 504-05). Savage has also served as the conduit for not-too-subtle jabs and jousts between members of the administration. He writes, for example, about Hillary Clinton’s decision to transfer Dan Fried, the State Department envoy charged with negotiating Guantánamo transfers, to other duties and close his office, an implicit rebuke of the White House’s failure to make progress on the promise to close Guantánamo. The White House apparently learned of the transfer from Savage’s story in the Times (page 495). And in 2012, Savage writes, he got a tip that Eric Holder and James Clapper, the director of national intelligence, were about to sign new rules for sharing government-held data with the counterterrorism center (pages 575-76). This leak, and Savage’s questions following up on it, apparently precipitated a hasty decision to issue the new procedures so that Savage could be brought in for a briefing with the paperwork signed, sealed, and delivered. Several who had opposed the new rules were convinced the leak had been intended to short-circuit internal debate. Savage, whose source opposed the changes, thought otherwise. But the effect of his involvement was nonetheless clear.

Savage’s role (or potential role) in high stakes internal debates may also have led to occasional defensive behavior, such as meetings being limited to a smaller group to reduce chances of a leak.

It is revealing that it has taken a reporter with unparalleled access to offer those without security clearance an inside look at some of the most important decisions of the Obama presidency. Savage is, of course, keenly aware of this, as he has been a harsh critic of the lack of transparency by the administration, even as he has been a beneficiary of it, as one of the rare trusted outlets.

But the downsides of such heavy reliance on a reporter for a glimpse into our government’s inner workings are obvious: Savage must get his information from sources, and those sources often have an agenda or a limited view of the issue at hand. (They are also, it bears mentioning again, often breaking their legal and ethical obligations not to disclose classified or confidential information.) That means that the glimpse he is offered is necessarily a skewed one. Add to this the fact that those who talk to Savage are, it seems, largely those at or near the top of the totem pole. Officials who labor day-in-and-day-out on the issues Savage covers — and who have an immensely important role in shaping options and strategies — receive almost no mention. It’s hard to fault Savage for this — he can’t possibly speak to everyone, and he clearly spoke to a huge number of insiders. But it does mean that he has a partial view of how the lawyering process works that doesn’t necessarily reflect the gritty day-to-day reality inside the agencies, where options and rationales are developed by lawyers, many of whom have been at the job for decades.

That said, better a skewed view than no view at all. Thanks to Savage’s reporting — and now his book — the public has much greater access than it would otherwise have to the reasons the administration has taken the actions it has. His presence as an observer and reporter has brought some measure of transparency and thus accountability to a field in desperate need of it.

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About the Author

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School Follow her on Twitter (@oonahathaway).