Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura Donohue, Jennifer Daskal, Jennifer Daskal & Steve Vladeck, Richard Pildes, David Golove, and Bob Bauer.
The numerous reviews and commentary generated by Charlie Savage’s powerful Power Wars, including in this symposium, may prove as valuable as the impressive book itself. They are a testament to Savage’s success here and in his first book, Takeover, in chronicling and analyzing how the two presidential administrations of the 21st Century have dealt with extraordinary challenges to national security, executive authority, and the rule of law.
In this post, I’ll address one recurring theme of the commentaries that has surprised and concerned me. Power Wars details the considerable extent to which the Obama administration has restored the rule of law to its traditional role as a constraining force on executive branch action. What concerns me is the extent to which several commentators have questioned whether and how law should constrain executive action. And, related to that, they also question whether presidential legal advisors, traditionally led by the Office of Legal Counsel, should offer their best, honest, accurate interpretations — as opposed to merely reasonable or plausible interpretations.
To be clear, I believe that Savage and his commentators raise important questions about the potential for legal advice to play an inappropriate role — for example, when it drives policy to the outer legal limits or is otherwise considered at the expense of full and optimal policy evaluation. Law does not answer all questions and, particularly on national security matters, relevant legal authorities may not be susceptible to one best interpretation.
Often, though, there is a best answer. Power Wars recounts time after time when Obama administration lawyers worked diligently with other officials to craft lawful, successful policies. That usually required close and difficult analysis of complex legal questions that in the end served the President well in fulfilling his constitutional obligation to act within the law as he led the nation on vital matters, both domestic and foreign.
It hardly takes going out on a limb to applaud those successes and embrace the mainstream of US legal thought and practice: Where there is a clear best interpretation of a legal constraint, I believe the President’s legal advisors should clearly convey that conclusion. And presidents should act within the legal constraints compelled by those interpretations.
Of course it is not always simple. In 2004, I worked with a group of former OLC lawyers to address some of the subtleties in a set of ten “Principles to Guide the Office of Legal Counsel,” which helped inform the current official guidelines for OLC lawyers. For example, OLC and judicial interpretation often differ in important ways: Executive branch precedent as well as a particular president’s legal views may be more relevant to OLC’s analysis; presidential lawyers should endeavor to craft lawful means of achieving presidential objectives; and OLC advice sometimes must remain confidential in order to protect its essential role as well as national security.
But the fundamental core remains that law constrains presidents. In particular, presidents must comply with laws enacted by Congress pursuant to its constitutional authorities, unless — as outlined in Justice Jackson’s famous Youngstown framework — presidential constitutional authority empowers action contrary to a federal statute. In construing all such questions, OLC’s governing practices direct that:
OLC must provide advice based on its best understanding of what the law requires—not simply an advocate’s defense of the contemplated action or position proposed by an agency or the Administration. Thus, in rendering legal advice, OLC seeks to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.
Rick Pildes and Bob Bauer are among the commentators who appear to suggest otherwise — or at least to invite contemplation of a different standard for high-stakes matters. I recommend reading their posts in full, for important context; I’ll focus on the portions I find most provocative.
Rick Pildes uses what seems to be a pejorative phrase “legal absolutist” to describe those who believe “A law is a law is a law.” He concludes: “[P]erhaps in some contexts of high national and international stakes, including use of force, law should be a factor taken into account, but not an absolute trump.”
Bob Bauer does generally extol the Obama administration’s adherence to legal limits. He very appropriately rejects the views of another commentator, Eric Posner, who essentially embraces the equation of law and policy and, to my mind, mischaracterizes Power Wars as a series of vignettes of lawyers providing rationalizations for desired policies. Posner, however, was a rare defender of the Bush administration’s interrogation memos — justifying torture in violation of a federal statute — so his views on these issues certainly are not in the legal mainstream.
Far more concerning, Bauer recommends: “On these most pressing national security policy issues, the complex balancing of relevant considerations, including legal issues, should allow for strong, reasonable or plausible legal theories to be good enough.”
This willingness to question the supremacy of the rule of law (in Pildes’s case) or to suggest that the best legal reading should be rejected in favor of a merely “plausible” reading (Bauer) are particularly disturbing in light of the approaching change in administration, a good time to get standards and processes straight. Anyone contemplating lowering the legal bar to merely what is “reasonable” or “plausible” — or even “strong” but not “best” — should consider that standard in the hands of their least-trusted candidate or president. To take the most recent example, yesterday Republican presidential front-runner Donald Trump called for reinstituting enhanced interrogations including waterboarding and instituting extensive surveillance of mosques and Muslims. What standard would we like a Trump administration’s OLC to apply to the legal review of his proposed presidential actions?
Just around this time eight years ago, many of us were looking ahead to 2008 and calling for an administration that would do just what Savage demonstrates the Obama administration in the main has accomplished. We were aided by revelations in Savage’s terrific 2007 book, Takeover: The Return of the Imperial Presidency, that President Bush and Vice President Cheney actually were motivated by an agenda to increase presidential power and act unilaterally, even when congressional support was or would have been forthcoming. The Bush administration was, as Power Wars summarizes (with original emphasis), “in the business of creating executive-power precedents.” Most threatening to our system, the Bush administration kept secret OLC’s legal determinations of preclusive executive authority to violate statutes: “that the president, as commander in chief, had the constitutional authority to lawfully take actions that were seemingly prohibited by federal statutes and treaties.”
Savage’s two books should be read together, for they describe sharply contrasting visions of executive authority, only one of which is supported by the US legal tradition. David Barron and Marty Lederman’s exhaustive two-part Harvard Law Journal article (here and here) reviewing presidential assertions of war powers in contradiction of federal statutes — executive authority at its “lowest ebb” — confirms the idea that the Bush administration’s violation of federal statutes was inconsistent with our constitutional tradition.
I felt special pride reading Savage’s descriptions of Barron and Lederman’s leadership at OLC: We all served together in the Clinton administration and on President Obama’s transition team, and would have again if my nomination to head OLC had not stalled for over a year in the Senate. Barron and Lederman, who did not require Senate confirmation, went on to restore OLC’s best traditions, as Power Wars describes. They helped President Obama ground his assertions of war powers in authorities conferred by Congress, specifically the post-9/11 Authorization for the Use of Military Force, rather than the overbroad claims of preclusive constitutional authority of the early Bush years. They and other administration lawyers regularly struggled to faithfully apply the array of statutory and international law limits on the conduct of war.
To take one prominent example that contrasts sharply with the interrogation memos of the Bush administration’s OLC: In an opinion authored by Barron, OLC meticulously interpreted and respected all potential legal constraints applicable to the proposed targeting of Anwar al-Aulaqi and advised — persuasively, in my view, at least as far as I can tell from the redacted version that is publicly available — that the operation would be lawful under a carefully constrained set of circumstances. Even though that memorandum did not conclusively opine on whether such targeting would be lawful in other circumstances, it strongly pointed toward legal limits. Moreover, Savage reports that administration lawyers later refused to deviate from those implied limits and opined that another American citizen could not be targeted because it appeared feasible that Pakistan might be able to capture him and transfer him to the US for prosecution — which (if Savage’s reporting is correct) is, in fact, what happened.
It seems to me that the specter of one particular, highly controversial, and to my mind incorrect, Obama administration legal determination may be unduly influencing commentators: the conclusion that the air strikes in Libya in June 2011 did not constitute “hostilities” within the meaning of the War Powers Resolution. Pildes in fact centers his entire post on the Libya example. (David Golove provides a strong response.) Such an interpretation might have been very attractive to a president met with extraordinary congressional dysfunction — indeed, if Savage’s reports are accurate, with congressional leadership telling him behind the scenes to go ahead with the operation. It seems to me that was not reason enough to have adopted it, especially when OLC and other counsel were advising that it was not the proper view of the law.
I want to emphasize, however, the importance of the fact that the Obama administration was admirably forthcoming in describing to Congress and the public the basis for its legal conclusions with regard to Libya. In my view, the greatest legal process disappointment of the Obama administration has been its occasional excessive secrecy — not nearly to the degree of the Bush administration, but at times excessive nonetheless — in denying the public comprehensive legal analyses of controversial and vital policies, most notably with regard to targeted killings with drones. Both the OLC opinion on initiation and the Koh testimony on hostilities in Libya provide important and laudable counterexamples, whatever one thinks of the merits of those analyses. Presidents throughout our history occasionally have taken actions of questionable legality, and the legitimacy of such actions ultimately is enhanced by a willingness to subject the action and legal rationale to public scrutiny.
Even still, at both stages the public justifications of the Libyan airstrikes could have been improved in this regard. The OLC opinion on initiation would have been strengthened by acknowledging where the analysis represented an extension (not simply an application) of what it adopted (to my mind, correctly) as the framework for determining whether the President must obtain prior congressional authorization: whether a military operation is “war” in the constitutional sense given its “anticipated nature, scope, and duration.” (Disclaimer: I served as a deputy at OLC, including on these questions, when Walter Dellinger developed this standard in OLC opinions on Haiti and Bosnia.)
With regard to the War Powers “hostilities” question, the Obama administration deserves praise for specifically rejecting the commonly stated but mistaken view that the WPR clock is unconstitutional and the President is entitled to disregard it at will. Harold Koh’s detailed testimony went to great lengths to limit the “hostilities” determination to the particular facts and to avoid setting a precedent for other WPR applications, let alone unrelated presidential avoidance of congressional commands. I would add that the WPR clock presents extraordinary challenges in times of congressional and partisan dysfunction, because it shifts the effect of congressional inaction. The administration’s position would have been strengthened by acknowledging this severe, special policy problem and endorsing a legislative alternative — notwithstanding that the chances of enactment anytime soon are small.
In any event, the Obama administration was quite forthcoming and now should accept the scrutiny. It would be a serious mistake to allow this single flawed legal interpretation, which has not withstood the public scrutiny that appropriately followed, to overshadow the Obama administration’s fundamental successes in restoring the rule of law, or to drive calls to disrupt best practices and tradition. Along these lines, the Obama administration absolutely should continue to adhere to what Savage reports was OLC’s good advice, and withstand calls to close Guantánamo by means that violate federal statutory restrictions; I fully endorse Marty Lederman’s recent careful analysis of the forthcoming NDAA restrictions, and I was pleased to see the Washington Post agree that the President must adhere to Congress’s terrible limitations while they remain in place.
Finally, I also disagree with what seems to be Bauer’s suggestion that OLC should be treated as just one of many equally authoritative sources of legal advice, as he writes: “Do we put too much on the lawyers, by assuming that there is a particular office or select number of them, engaged in acceptable lawyering by the most rigorous standards, who may set the legal parameters for policy options in these situations?” Of course a president may choose to act contrary to OLC’s advice and rely upon other honest appraisals of the law if the president believes OLC has not provided persuasive legal analysis. But that is not the case Bauer appears to be addressing.
Bauer and others, including former Bush administration OLC head Jack Goldsmith, have sounded the alarm that OLC may be in “decline.” Whether and to what extent that is true is unclear and difficult to evaluate from outside the government. Savage’s book certainly doesn’t suggest that it has been — OLC is very prominent in it — but there’s evidence that requests for formal OLC opinions has declined recently. To the extent it is true, that is deeply unfortunate. Goldsmith, who famously stood up for the rule of law against the Bush administration’s unpersuasive legal advice regarding interrogation and surveillance, himself has written insightfully about the unique value of OLC fulfilling its traditional role. It’s a tradition worth preserving.
When Republican senators blocked a vote on my nomination to return to head OLC, I was assured by senators and others on both sides of the aisle that it was not personal, and among the political reasons was payback for the Senate Democrats refusing to confirm President Bush’s nominee after Goldsmith felt compelled to resign after just nine months. (That Democratic opposition itself was at least in part in response to the Bush administration OLC’s post-9/11 advice on interrogation.) This pattern began earlier, while I served as acting head of OLC under President Clinton, but the principal harms are a legacy of the deeply flawed advice of the early Bush administration. Goldsmith reports that OLC has been led by a Senate-confirmed head for only about five of the last 21 years. This is an astounding and dismaying fact concerning an executive branch office that serves a unique and critical function.
As Jack Goldsmith recently observed, the start of the next administration offers an opportunity for the President, regardless of party, to return OLC to its traditional role. I call upon all who value OLC, especially those of us who were privileged to serve there, to combine our voices in support of both Senate confirmation of a head of OLC explicitly committed to this fundamental role of sound legal advice — beyond that, the President deserves substantial deference in his or her choice — and leadership from the President in support of the rule of law and OLC’s traditional role.