Power Wars Symposium: Surveillance, Individual Rights, and the Obama Administration

Editor’s Note: This is the latest 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. The series includes posts by Oona Hathaway and Marty Lederman (here and here), with more to come.

George R.R. Martin’s acclaimed series, A Song of Ice and Fire, relentlessly questions the role of power in society. What is power? How do those who are powerless gain power? To what extent can it shield the bearer from the realities of life?

In season two of the HBO series based on the novels, Game of Thrones, screenwriters David Benioff and D.B. Weiss telescope Martin’s insights into a memorable exchange between the Master of Coin, Petyr Baelish, a self-made man who thrives on collecting and trading intelligence, and the Queen Regent Cersei Lannister, whose position depends almost entirely on having been born into privilege.

Knowledge is power,” insists Baelish. In response, the queen schools him.

“Seize him,” Lannister tells the guards, and they do. “Cut his throat.” She pauses, as they pull their knives. “Stop. Wait, I’ve changed my mind. Let him go.” They drop their arms. “Step back three paces,” she adds. Lannister ends the exchange, looking straight at Baelish, “Power is power.”

The scene captures one of the central themes in Charlie Savage’s Power Wars. The book, however, is based not, like Game of Thrones, on an epic fantasy series, but on the harsh realities of the modern age. In its comprehensive treatment of the steady expansion of surveillance and erosion of privacy in the United States, Power Wars offers a damning account of power and those who wield it. Savage contrasts the Bush-Cheney administration’s Lannister-like belief — power is power — with the Obama-Biden administration’s commitment to law-as-power. His account implicitly criticizes both as rather ignoring the point of why the Executive has power in the first place: to protect individual liberty.

For the Bush-Cheney administration, the introduction of warrantless wiretapping outside the 1978 Foreign Intelligence Surveillance Act (FISA) brought to fruition the aspirations that Vice President Dick Cheney had harbored from his time in the Ford administration. Savage explains that Cheney “wanted to refight the battles of the 1970s, reducing the power of Congress and the courts and restoring the power of the presidency” (page 43). The architects of the Bush-Cheney era shared a common goal — to leave the Presidency stronger than when they found it. The point was not whether the President already had the authority. To the contrary, the administration “was in the business of creating executive-power precedents” (page 46).

Thus it was that in the aftermath of 9/11, the President launched “Stellarwind” to collect domestic telephone and Internet metadata, as well as international telephone and Internet content. That Congress had explicitly forbidden this practice, and that FISA had made provision for limited wartime exceptions, mattered naught. Administration lawyers who evaluated the program “embraced such sweeping views of executive power that the law was not a factor” (page 63). The White House did not even show the legal analysis to the NSA before demanding compliance (page 184).

In his exposition of Stellarwind, Savage is at his best. Apart from violating FISA, the program ran counter to Executive Order 12333 and associated DoD directives. John Yoo’s November 2001 memo justifying Stellarwind remains heavily redacted. But Savage underscores one of its more disturbing aspects, as disclosed by Senator Sheldon Whitehouse: the assertion that the President is so far above the law that he is not limited by his own executive orders, even if they remain in place. “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order,” Yoo explained. “Rather than violate an executive order, the President has instead modified or waived” it — and had done so in secret (page 185).

Savage quotes Whitehouse’s horror that Yoo’s perspective “turns the Federal Register into a screen of falsehood, behind which lawless programs can operate in secret, notwithstanding Supreme Court case law since 1871 that a valid executive order has the force and effect of law” (page 185).

Even for individuals well-versed in the history of Stellarwind and efforts by the Bush-Cheney administration to migrate the program into FISA’s pen register and trap and trace provisions (page 194), business records (USA Patriot Act, Section 215) authorities (starting on page 198), and the collection of one-end-foreign content (FISA Amendments Act, Section 702) (starting on page 207), there is much about Savage’s account that is new and warrants further attention.

Some of DOJ’s reinterpretations of key statutory terms — such as re-defining “facility” to mean not a particular phone number, or email address, but an entire gateway or cable head (pages 201–02), and “relevant” to mean a vast database that might potentially contain something helpful to an investigation (page 197) — are well known. Others are not — such as the transformation of the meaning of “target” from a particular individual to entire groups or networks. Under the new definition, the FISA Court (FISC) approved the use of the roving wiretaps provision (USA Patriot Act, Section 206) to allow the government to wiretap any phone number or email address without first approaching the court (pages 205–06).

Savage highlights the importance of the 2002 Raw Take order, which made the NSA’s own timeline of key developments in surveillance law, but has largely escaped public comment. The order altered the practice of sharing data only after minimization, so that the NSA could disseminate reservoirs of raw data to the FBI and CIA (page 189). The FISC later included the National Counter-Terrorism Center in that inner circle (page 190), rendering the lauded minimization procedures on which so much discussion has centered somewhat beside the point.

Savage depicts an executive with a voracious appetite for data. He calls attention to the importance of PRISM, in collecting not just real-time communications, but all stored messages in a user’s account. He notes how a 2007 classified change to Executive Order 12333 meant that US person information could be used to query databases, even as a further change in 2008 extended the NSA’s ability to share raw signals intelligence data with other agencies — without any minimization — as soon as the Attorney General and the Secretary of Defense agreed to the new procedures (pages 217–18).

If the initial hope of civil libertarians was that the Obama-Biden administration would rein in an executive run amok, Savage notes, the belief was misplaced. To be sure, Savage recounts President Obama’s commitment to ensuring that surveillance programs would be (ideally) implemented only under specific legal authorities, and not based upon an Article II override of statutory constraints. But his book also vividly demonstrates, that adherence to the rule of law does not mean a commitment to individual rights. The administration did more than just accept the inherited practices. It expanded the programs.

In one of its first moves, the Obama Department of Justice applied to the FISA Court to expand its use of the statute to find individuals trafficking in biological, chemical, or nuclear weapons (page 557). In October 2009 the administration obtained the FISC’s approval for the FBI to keep and use raw data collected under the FAA for other purposes — giving the Bureau the ability to search databases for criminal investigations utterly unrelated to the reason the data were collected in the first instance, and to read Americans’ communications without prior warrant. Two years later, the FISC approved another request to allow the NSA and CIA to search through any “incidentally” collected US persons’ data. In April 2012, the FBI obtained the authority to nominate which foreigners the NSA could target (pages 557–58). The following month, DOJ approved targeting “cyber signatures,” or patterns in behavior (without specifying particular targets) under the FAA, with further expansion in July 2012 to include targeting certain IP addresses (page 558). These changes gave the government access to any data downloaded from American computers by hackers.

Savage notes that for six years, not a single person charged with a terrorist offense had been informed that information being used in their trials was derived from FAA Section 702 — despite Solicitor General Don Verrilli’s representation to the Supreme Court in Clapper v. Amnesty International that such trial notification would be the appropriate mechanism for constitutional challenge (page 559). Even following the internal fight over whether it was — or was not — DOJ’s policy to inform individuals of the source of the intelligence, the government’s internal understanding of what “derived from”means remains classified.

Savage’s account relentlessly documents the steady expansion of the surveillance state, behind closed doors and powered by rapid technological advances. It also notes that even more programs have been considered but not yet implemented — such as NSA proposals to track the movement of all Americans who use mobile telephones — portending a future ripe for abuse.

The implications are hard to miss. The Bush-Cheney administration’s aim was to create precedent for executive power. The Obama-Biden administration then used the precedent to further expand the system, while their commitment to rule of law cemented it into ordinary, established practice.

Rule of law matters, but there is a reason why. It is about more than just process or structure. There are substantive liberties that are being lost because of the failure of successive administrations to commit to their protection. Privacy has suffered. But so have free association, freedom of religion, and liberty of movement. Savage’s account of how this has occurred offers penetrating insight into a political system that has become disconnected from the values that animated the Founders.

In Federalist 51, James Madison observed that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”

Savage credits Congress for stepping up in the USA Freedom Act to close doors to bulk collection, to pressure the FISC to release its legal interpretations, and to authorize the appointment of FISA Court amici to ensure full debate. The actions of the legislative and judicial branches are just the first steps in the right direction.

As Madison further warned: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The collection of foreign intelligence is an important part of protecting the country from attack. But it is not just power-as-power, or law-as-power, that matters. The debate over the scope of the government’s steadily increasing surveillance powers is about more than that. At stake is the future of individual rights in the United States. 

About the Author(s)

Laura Donohue

Professor of Law at Georgetown University Law Center and Director, Georgetown Law Center on National Security and the Law