In 2013, White House advisers debated whether to seek congressional approval to launch airstrikes against Syria’s government for using chemical weapons against rebels.
One adviser, Ben Rhodes, later recalled that "it’s not like the lawyers couldn’t have come up with a theory" for President Barack Obama to act on his own. "It’s easy to get lawyers to do clever wordings," Rhodes said.
Lawyers are the central characters in "Power Wars: Inside Obama’s Post-9/11 Presidency," Charlie Savage’s new book about the Obama administration’s national security policies and programs.
Savage, a reporter for the New York Times, describes Obama as "the most lawyerly of American presidents" and frequently contrasts Obama’s approach to terror threats with that of his predecessor, George W. Bush.
"If the Bush years can be caricatured as government by cowboy, energetic but shooting from the hip, the Obama era was government by lawyer, methodical and precise – sometimes to a fault," Savage writes.
"If the Bush administration sometimes seemed reckless, the Obama administration sometimes seemed paralyzed, grappling with a problem from all sides and then putting it off to be taken up again at the next meeting."
The results are largely the same: Both presidents approve warrantless wiretaps, the indefinite detention of terror suspects and the secretive bulk collection of Americans’ phone records and emails. They send defendants to military commissions rather than civilian courts. They issue executive orders to evade Congress and signing statements to get around laws.
"Instead of rethinking basic premises of the national security state, then, Obama accepted them but sought to find a stronger legal framework for carrying out its policy prescriptions," Savage writes near the end of "Power Wars."
In an interview last week, Savage said Obama had found himself in much the same spot as Bush: America’s new enemies were loose networks of terrorists without borders, hatching their plots in an Internet world whose surveillance laws had been shaped for analog telephones.
"There is a pattern that arises from all of this, which is the rules weren’t written for this situation," Savage said by phone from Washington.
Parts of his book peek in on closed debates among White House lawyers over the legality of their decisions.
"You get people who are some of the best legal minds of their generation, who are all on the same team, Obama political appointees, yet they still disagree vigorously with each other in these sort of gray areas" where there is no judicial oversight, Savage said.
The cast is huge. Savage lists nearly 80 members of the national security and legal-policy team, and many of them have prominent roles in the book.
Their deliberations "raised one fascinating puzzle or dilemma after another after another after another, which add up to explaining how things have turned out the way they have," Savage said.
The book opens with the underwear bomber’s failed attack on an airliner over Detroit on Christmas Day 2009 and marches through a succession of challenges for the White House: trying unsuccessfully to close the U.S. military prison at Guantanamo Bay, Cuba; killing 9/11 mastermind Osama bin Laden on Pakistani soil; halting intelligence leaks; trading five Taliban prisoners for captured U.S. soldier Bowe Bergdahl.
When they argue over how much information to disclose about the targeted killing in Yemen of terror planner Anwar al-Awlaki, a U.S. citizen, Obama’s lawyers name their options the Full Monty and the Half Monty, a reference to the British comedy film about male strippers. The Full Monty turns into the Full Harold because of the strong support by adviser Harold Koh.
Later, the lawyers reason that the U.S. can continue bombing Moammar Gadhafi’s regime in Libya beyond a War Powers Resolution deadline by framing the mission as a humanitarian intervention on behalf of Libyans at war with their government.
Savage questions this "non-hostilities" theory in his book, although he said in the interview that it was not his place to judge whether it was a jump-the-shark moment for the White House.
"I’m just trying to explain it and report it and what their thinking was," he said.
"It was a pivotal moment in Obama’s evolution toward greater willingness to act unilaterally ... because the alternative was a Congress that would seem to be disabled from acting," Savage added.
He said national security worries over the Nov. 13 terrorist attacks in Paris remind him of the aftermath of the failed underwear bomber "and how that changed the politics and policies for the United States."
Obama was trying to shut down the Guantanamo Bay prison in 2009, and he’s still trying, over congressional objections. Savage said he had been expecting the White House to disclose its latest Guantanamo strategy in coming weeks.
"I’m sure that the climate engendered by the Paris attacks doesn’t make it the best moment to be announcing that," Savage said.
He said Obama could wait until the end of his term next year to order the prison closed or "instead just sort of accept he failed. And I think he probably doesn’t even know what he’s going to do yet."
Regardless of what Obama does, "Power Wars" provides a blueprint for how he does it.