1.
GREENWALD: This is Glenn Greenwald with The Intercept and my guest is the
Pulitzer Prize-winning reporter with the New
York Times, Charlie Savage, who has a newly published book, the title of
which is Power Wars: Inside Obama’s
Post-9/11 Presidency. And I think the best way
to describe this book is that it’s really a comprehensive history on all of the
many civil liberties and war power controversies that have taken place over the
last seven years under Obama, and especially the extent to which Obama has or
has not, as one chapter put it, been acting like Bush in these areas.
One of the things I found most valuable
about the book, Charlie, is that you have access to a lot of sources who have
been inside these controversies — White House lawyers, lawyers in the Justice
Department, key Pentagon officials – who we haven’t heard all that much from
on these controversies until your book. It gives some great insight into what a
lot of these people who have been responsible for these decisions have been
thinking about, why they made the choices they made. I want to begin by taking
a step back and asking you about the history of these issues. Of course these
issues were very controversial after 9/11.
Under George Bush and Dick Cheney, there
were a lot of accusations that they were constructing what was called “an
imperial presidency,” and yet as you point out, this
kind of model and concern about the imperial presidency dates back to the end
of World War II when all of these war agencies and militarized policies were
implemented, and then after the war they weren’t deconstructed. And it was Arthur
Schlesinger, the historian, who coined the term imperial presidency. How did those events
create the conflicts that ended up being so controversial first under Bush and
now under Obama?
2.
SAVAGE: Sure. Thank you very much for having
me on, Glenn, I really appreciate it. In some ways, what you’re asking me
to do is summarize my first book about the growth of executive power,
especially from Watergate to the present, and especially under the Bush
administration at that time.
You’re absolutely right that it was
typical in American history — up until World War II — that when there
was a war, there would be a tremendous growth in executive power. There
would be the creation
of a big army, and the president would have all kind of tools at his disposal and things
that he was in charge of, that when the war was over, would be dismantled again. [Wrong.] The
army would be largely decommissioned and the people would come home and the
special powers that had been asserted would lapse.
And that changed after World War II
because we segued from that war into the Cold War, and we’re right away in a
major global cold, but sometimes hot, conflict with the Soviet-driven Communist
empire. We keep our large standing army; we keep standing bases all
around the world. Agencies like the NSA and the CIA are sort of created out of
predecessors that were invented sort of for the purpose of winning World War
II.
At the same time the massive
administrative state that had grown up in the New Deal becomes entrenched as
the first Republican president since FDR takes office and keeps it rather than
scrapping it. Because of this climate of perpetual emergency, you see the
executive branch, under presidents of both parties, increasingly making claims
of great power that puts them beyond Congress and the judiciary in matters of
secrecy, and so forth, that largely the other branches acquiesce to, and for
that reason, what Schlesinger calls the imperial presidency grows up and peaks
with Nixon, although certainly LBJ and Democratic presidents — JFK
— were also as involved with it.
3.
GREENWALD: It almost seems like we do have this
vision of the country as it was supposed to exist that has become pretty
distant from the role that the U.S. government actually plays in the world. And
yet at the same time, we’ve retained those founding documents, particularly the
Constitution, that is supposed to govern how everything functions.
And so you have this document, the
Constitution, that was created with this very limited vision of what the president’s powers and authorities
would be and yet now we’re trying to kind of take this Constitution and
squeeze it into this vastly expanded role where the U.S. in the dominant power
in the world. Where it’s more or less permanently at war. Where the president
has these vast powers.
Do you think that that is a significant
part of what generates the tension in these areas?
4.
SAVAGE: Well, there’s a certain ex ante question that you’re asking,
which is: How do we think about the Constitution and its vision? Was it a
vision for a particular kind of country, or was it a vision for a particular
way in which the country would make its decisions, and one that might be
flexible to go off in a very different direction as long as those decisions
were made in the right way.
So there’s a little bit of an unanswered
question in the Schlesinger model of calling that the imperial presidency
because, to the extent that Congress makes the decision, or acquiesces, or goes
along with and funds or affirmatively votes for keeping a large standing army
deployed around the world, that’s certainly the United States acting in what
might be called an imperial role, pejoratively. But is that an imperial
presidency, or is that an imperial country?
And so when I
think about the imperial presidency in particular, I’m more often thinking
about executive power vis-à-vis the other two branches. Who’s going to make the
decision to do X or to do Y? To what extent are there checks and balances on
that decision-making process, and to what extent can it be done unilaterally by
whoever is in the White House at the time?
5.
GREENWALD: You’re right. There are some concepts
that are ambiguous, that are the byproduct of flexibility and how things evolve
over time, but then there are some really specific ones. Like, the Constitution simply says that it should be the power of
the Congress to declare wars, and yet that seems almost quaint and antiquated
because we allow the president to go to war all the time — to make war
without Congress actually declaring war.
6.
SAVAGE: That’s absolutely — I mean, that’s
the place where in the domestic policy, sort of social politics sphere, things
like abortion rights and gay marriage and so forth, liberals are always for the
evolving, living constitution that changes as social conditions change, and
conservatives are against that. And the power of the
presidency to commit troops into hostilities and take war-like actions without
prior explicit authorization from Congress is clearly cut from that same cloth,
although you typically find more conservatives or neoconservatives who are in
favor of that evolved interpretation of the Constitution, when it’s pretty
black and white that that’s not how the founders envisioned it.
7.
GREENWALD: Right. So let’s jump to the more
modern era, and some of the controversies that are defining the Obama
presidency in these areas. It’s funny because before I got my hands on your
book, someone who had got their hands on your book told me that one of the
principal themes you advance is that the world as Obama and his closest aides
saw it on the civil liberties front changed, one could say fundamentally, with
the attempted bombing of the Northwest Airlines plane over Detroit on Christmas
Day in 2009 by Umar Farouk Abdulmutallab.
I actually remember being surprised when I heard that because you had
written an article in February 2009, I guess a month into the Obama presidency,
where you expressed the view that there was a, and I quote, “surprising degree
of continuity” between Bush and Obama when it came to civil liberties and war
powers and all of those post-9/11 controversies. And I actually wrote at
the time, with a surprising amount of restraint —
8.
SAVAGE: [Laughs]
9.
GREENWALD: — that I
thought you were being premature. I was actually defending Obama, and I said,
“I think Charlie Savage is too hard on Obama. It’s way too early to say he’s
copying Bush in these areas.” And I had to go back and say I was
wrong, and Charlie Savage was right. There is this extraordinary
continuity.
And this was many,
many months before Abdulmutallab, obviously, and so I’m just wondering why you
define the Abdulmutallab event as so significant in shaping Obama’s approach to
civil liberties and the extent to which he ended up replicating the Bush
approach, when many months earlier you were probably the first person to point
out and to sound the alarm bells that there’s a huge amount of continuity and I
think more than anybody really expected.
10.
SAVAGE: Whoever told you that about their first
read of my book I think was overstating my thesis. I do open with
reconstructing Christmas Day, 2009, from the moment when Abdulmutallab was
about to try to blow the plane up, up until the moment 12 hours later when he
gets read the Miranda warning. Then I go off and talk about some big themes and
come back in the third chapter to reconstructing the five or six weeks that
followed that failed attack and what a sort of disaster it was for the Obama
administration. And I do make the case that it was a pivotal moment in
hardening their approach to counterterrorism.
But it’s not my thesis or argument that
nothing had happened before then. You’re absolutely right that right away, it was very clear
that there was going to be greater continuity, in terms of policy outcomes, on things like keeping indefinite detention as an available
tool that they saw as legitimate, or keeping warrantless surveillance, or
keeping military commissions — I mean, they closed them but they were
leaving the door to reopening them — and continuing to invoke state secrets to
try to get rid of lawsuits against surveillance policies and so forth.
Already, as the year progressed, there
had been stumbles and compromises in places where they thought they were going
to come in and fairly easily close Gitmo, and it became a hugely turbulent
thing that they failed to do. But I think that they were still more or less
[working] — though chastened, or feeling less naïve — to do a lot of
changing by the end of 2009, until the sort of politics changed with the underwear attack.
11.
GREENWALD: In your view, was it that the
Abdulmutallab attempt to blow up this plane was significant in terms of
changing how they behaved in this area because the politics changed? With the
Scott Brown election, which you talk a lot about? The objections that they
treated him too well, that they should have sent him to Gitmo? So was it that
the politics changed, or that their personal view of these issues changed
because they thought, “Oh my god, we almost had a plane blow up over our soil”?
12.
SAVAGE: I think there were both internal and
external factors in the reaction to that. First of all, the clinch of almost
300 people just got killed on U.S. soil on Christmas; all the systems we had
failed; they really are out there trying to attack us. And just because Obama
gave a pretty speech in Cairo didn’t change the fact that the United States
remains at war with an organization that is in fact trying to kill civilians on
U.S. soil. So there is that. But there is also the political fallout when their
plan to prosecute Khalid Sheikh Mohammed and the other 9/11 conspirators in a
traditional civilian court in New York totally falls apart.
Even though they hadn’t closed Gitmo in a
year, they were sort of on track. They were starting to send people back to
Yemen — which was the biggest problem, the Yemenis and what to do with them, so
they sent some, and then sent another batch — and because that attack
originated on Yemeni soil, Obama is sort of forced by the politics to impose a
moratorium, and that means Gitmo is not going to close.
And as you mentioned before, Scott Brown
surprises by winning the Ted Kennedy seat in deep blue Massachusetts. A
Republican is suddenly getting a Senate seat, and it’s not just any seat. It’s the 60th vote for the
filibuster-proof majority. And they saw, in addition to how awful it
would have been had that attack succeeded, that it would have destroyed Obama’s
presidency. That if there is a successful attack, this sort of great sweeping
wind that he had had just a year earlier would mean nothing — he would lose
re-election, and everything they were trying to do, not just in terms of
ratcheting down what they saw as the excesses of the war on terror, but things
totally unrelated, like expanding health insurance and so forth, would all
collapse. And for that reason, when there’s a “they,” there’s many “they.”
There’s many voices. And part of what this book shows you is how these meetings
unfolded with different people and different factions pushing different ways.
Many people told me, some on the record,
that Obama, this was one of many things he was paying attention to before
Christmas. He would get his briefings, and he would sort of nod. And there were
reformist voices in his administration, and there were … especially the
national security state bureaucracy voices who were sort of worried about
giving up powers. And suddenly, after that attack,
Obama is much more forward leaning. He wants to know what more they can be
doing. They’re determined not to let something like that happen. And the
reformer voices get quiet. The “we better hold onto this detainee,” “we better
keep this surveillance power,” “we better not disclose this to the public”
voices get a lot louder.
13.
GREENWALD: Right. I find it convincing, having
read all of these testimonials that you include, that this was certainly a
significant event. At the same time, I find it kind of remarkable that it was.
The kind of caricature of Democrats and liberals that Republicans were painting
during the Bush years about people like Obama who were criticizing them on
civil liberties grounds was, “Oh, they get into the office and they become responsible for
keeping Americans safe — they’re going to realize that a lot of these
policies are actually really significant. It’s easy for them to criticize from
the sidelines, from the halls of academia, from the Senate.”
It seems like in
some sense, these Obama officials are standing up and saying, “That caricature
that they painted of us was right.” And I guess what I’m left wondering is,
during all of those months and years when Obama was critiquing these policies,
and the people who ultimately became his top lawyers who had been at law
schools or in other places writing critiques, didn’t they anticipate something
like this? How could a single attempted terrorist attack by one 23-year-old
coming from Yemen, which was completely predictable and in the ordinary course
of what you would expect, so shake their worldview on all of these issues that
they’d been talking about for years?
14.
SAVAGE: I think you’re overstating it a little
bit. I’ve already talked about how they were keeping certain authorities, and a
big part of that was they thought that the problem with those authorities when
Bush had first claimed and established them was that he had done so
unilaterally, and often in violation of statute, so that when Congress changes
federal law to explicitly authorize them — I’m thinking about something like
the warrantless surveillance program, and so forth — that the problem is
solved, and they are useful, and the world is at war with al Qaeda. That it’s a
real war, it’s not just sort of a war on poverty but an actual armed conflict,
and so you can do things like use military authority when it’s necessary.
They had already reached that point
before they even came in. Obama thought this was war. The very liberal position
is that it’s not war; there can’t even be a war against a non-state actor. So
recognizing that is a big place where disagreements with him on the left flow
from. Those who don’t think this is really war.
So they already knew that this was war,
they intended to treat it as war. They intended to fight this war within a
framework of law, unlike how they saw the Bush administration as having done
it, especially in the first term. But it was still one of many things. And it
was the Christmas attack that made it visceral and real to not just the people
whose job it was to pay exclusive attention to national security matters, but
people who had many different jobs. People like the political arm of the White
House, people like Obama himself.
And it was that — not just their
internal attitude but the change in the politics — the way the Republicans
learned from the Scott Brown win that they could fight back against this guy
who had just crushed them in ’08, and his party, which had just crushed them in
’08, and have success by making national security an issue, by making the
reading of Miranda rights to terrorists an issue. That’s kind of what changes
the politics and pushes it going forward into a much harder line.
And this is all very complicated stuff. There’s places where he does the same thing as Bush, there’s
places where he does less than Bush, there’s places where he does more than
Bush, there’s places where how you define what Bush did means he either did or
didn’t act like Bush.
It’s important to pay attention to the
nuances. Even when Obama continues to treat this as war, or continues
to say, “We can hold on to these Guantánamo detainees who we can’t try but
think we can’t release either under prisoner-of-war style detention.” He also
changes quite a bit going forward where he has more flexibility, especially in
the detention world.
It’s not just that he wants to close
Guantánamo for symbolic reasons. He really thinks that using indefinite
detention when you don’t have to is a bad idea, and he’s kind of fought in the
political arena to establish that when we take in new prisoners, who aren’t
going to be tortured and who can be convicted of material support for terror in
civilian court — because that law has been expanded after 9/11 and so
forth — that that’s really the way to go. And he’s refused to bring anyone
new to Guantánamo.
So even as we talk about all of these
continuities, we should also be cognizant of some substantive differences.
15.
GREENWALD: Definitely, definitely. And we’ll
definitely get into those in just a little bit. But just one last question on
the Abdulmutallab event and how that changed some of their thinking, to some
extent. In terms of the politics, one of the things that always struck me about
the argument that it’s been politically difficult for Obama to win on these
issues is that in 2008, he ran against sort of this war hero, very much in the
line of the Republican, hard-line position on national security. Obama was this
first-term, African-American, perceived as a liberal senator. And they did
attack him on national security, constantly. There was a huge conflict in that
election on a lot of these issues. On whether we should continue the
Bush/Cheney war on terror approach, or whether we should fundamentally reform
it. And closing Gitmo was the symbolic issue, but there were a lot of debates
about that, and Obama won. He won easily on those issues.
16.
SAVAGE: Well, McCain agreed with Obama about
closing Gitmo.
17.
GREENWALD: And about torture as well. But not about the U.S. posture in the world, not about a lot
of civil liberties issues surrounding habeas corpus. There were a lot of
attacks on the Obama national security, civil liberties approach. Why didn’t
they have the confidence that they could continue to win those debates?
18.
SAVAGE: So the two moments early on, if you go
through the book, that show their sort of loss of confidence — one we’ve been
talking a lot about, which is the fallout from the Christmas underwear bombing.
And the other earlier moment was in early summer of
2009, when there was this difficult case of these Chinese Muslims called
Uyghurs at Guantánamo who everyone agreed had been brought there by mistake. And
a judge had ordered them freed, and the U.S. government did not think it had
legal authority to keep holding them because they weren’t al Qaeda — they
weren’t our enemies — but there was no place to send them.
We couldn’t send them back to China
because they’d be tortured or killed, and China was using its diplomatic
pressure to prevent other countries from taking them in. So they decided that
they would bring a couple of them — the ones who spoke English the best,
and so forth, to the United States, and release them under monitoring, in a Uyghur ethnic community
here where I live, in Northern Virginia.
And when the local congressman, Frank Wolf, found out about
that, he sort of went to war, and went down to the floor of Congress and
started talking about releasing dangerous terrorists in your backyard, and the
Republicans kind of picked up on that theme. And of course the nuance of
who these guys really were never really comes through when these things get
demagogued like that.
And the White House totally retreated,
immediately. And the reason they retreated was the political voices in the
White House didn’t want to cause ruffles with Congress. They were trying to
pass health care reform, and so forth. And they just didn’t want to fight the
fight. And so they pulled back from that plan. And that taught Congress that
they could be rolled on these issues. And that’s when Congress first imposes
restrictions on Obama’s ability to transfer detainees that later get tightened
significantly. And he signs them without complaint. That’s the first moment
when I think really the turbulence hits. And they sort of display that they
lose their nerve.
Looking back, in
retrospect, I think a lot of them see that as a major mistake. They should have
stood up to Congress at the time. They should have just moved everyone from
Guantánamo in that first six-month period and made it a fait accompli. When
they announced that they were going to have a civilian trial for the 9/11 guys,
they should have just moved them to New York and commenced. And they had
this sort of poorly executed policy strategy of just saying they were going to
do something and then not doing it, and leaving it up there like a piñata for
people to whack on until it was in shreds.
19.
GREENWALD: Right around the time of the
Christmas Day attempted bombing, there was the suicide attack that killed, I
think, six
CIA agents in Afghanistan.
20.
SAVAGE: That’s right.
21.
GREENWALD: And you talked about how that had a
similar effect. A sort of hardening. And described how one CIA lawyer in
particular, I think it was Stephen Preston —
22.
SAVAGE: That’s right.
23.
GREENWALD: — said, “now it’s personal,”
because he actually knew one of the CIA agents who had been killed in that
attack. And yet also right around that time, there was an airstrike in Yemen, in Al-Majalah, that
ended up killing a huge number of civilians.
24.
SAVAGE: A terrible airstrike. December 17.
25.
GREENWALD: December 17. It killed, I think, 21 women, 14 children. It turned out they
had used cluster bombs as part of that attack. And you
described how Jeh
Johnson, who at the time was a Pentagon lawyer, he eventually went to
Homeland Security, would actually watch the footage of the aftermath of these
strikes. I totally get that if you know someone who is killed in a suicide
attack, that kind of hardens you, because now it’s personal, as Stephen Preston
said.
Do you hear that on the
other side of the equation, that watching the aftermath of this sort of
civilian slaughter, whether intended or not — they didn’t, obviously,
target civilians — but something that’s happened over and over and over
again. Does that kind of emotionally and personally affect them to question
what it is they’re doing in the world and whether or not these policies are the
right ones? Is this a sentiment that you encounter frequently or periodically?
26.
SAVAGE: Well, yes. When a strike goes bad and
it turns out that the intelligence was wrong — in that case, there was a
civilian camp right next to the apparent al Qaeda camp and they didn’t know it,
and they killed all these people — there were other bad strikes, too, that I
recount in the book — and it does lead to this internal clinch, and sometimes,
changes.
There was a particularly bad signature strike in Pakistan in early 2011
that also killed lots of civilians. These things have to be up to the
officials, both the CIA station chief and also the ambassador there — the State
Department had objections, and the CIA went ahead and did it, and it turned out
to be this disaster. And it led to reform and sort of an attempt to ratchet
back some of the signature strike authority or the aperture of the lens they
were going to use and more internal people have to sign off and if people
disagree, it has to get bumped up.
27.
GREENWALD: If you were to say to Obama or a lot
of his key advisers and the officials who’ve implemented these policies: “Hey
look, there’s this critique of you that you’re a huge hypocrite because you
were out there all those years criticizing Bush for all these policies that you
ended up then embracing,” one of their defenses, if not their primary defense,
would be:
“No, that’s totally wrong, our primary
critique of the Bush administration was not that they exercised these powers,
but that they exercised them lawlessly. That instead of going to Congress
saying ‘we want to do this,’ they would just do it on their own, or they didn’t
get judicial approval, and our critique of them was one of lawlessness, that they were doing these
things without legal authority. And so even in
these cases where we end up looking like we were doing the same thing, we actually got
Congressional approval and so we were doing it under the law. That is a fundamental difference.”
That, I think, is one of the core themes
of your book. And I have a few questions about that. I think most people would
agree that you can sort of divide the Bush administration on these issues,
roughly speaking, between the first and the second term.
So the first term, right after 9/11, was
one of extreme secrecy. They did do all these things on their own. They didn’t
go to Congress. Nobody knew what they were doing. They implemented warrantless
surveillance, they were torturing people, they were detaining people on black
sites. There was no legal framework for any of the stuff that they were doing.
But in the second term, and you talk
about this in your book, there’s a lot of instances where they did go and get a
legal framework from Congress like the Military Commissions Act, the FISA
Amendments Act, prior to the Protect America Act.
When Obama was running for president and
making all of these critiques, he wasn’t running in 2002 and 2003, he was
running in 2006, 2007, 2008. So even though you might be able to parse a lot of his
statements so that they seem to be critiquing the lawlessness of those policies
rather than the policies themselves, certainly a reasonable observer listening
to him complain about the Bush administration in these areas would think that
his objections were not just to the legal — the process — part of it,
but to the actual substance of it because by then, so much of it was under
legal authority.
28.
SAVAGE: I’m not sure what we disagree about.
That sounds more or less as I lay it out in chapter two. He was running for the
Democratic nomination against Hillary Clinton with a liberal base that was
incensed about the Bush administration, some of which had the view that the
problem was Bush was violating the rule of law, many of which had the view that
Bush was violating civil liberties, and he wanted all of their votes. And so he
spoke in ways that appealed to all.
And it’s only in retrospect that you got
back — you said “parse it” — you can see that it was very carefully
formulated in a way that the rule of law issue was the paramount one. And
in fact, one of the behind-the-scenes stories I tell in this investigative
history is how when Obama was going to give his big national security speech at
the Woodrow Wilson Center in August of 2007, this was where he would sort of
present his unified vision and say, “Take me seriously as a foreign policy
potential president,” an early draft of the speech said he was against military
commissions, full stop, period. And his legal advisers, including especially Jeh Johnson, who went
on to become his Pentagon general counsel, and then Homeland Security
secretary, edited that speech and said, “You should not flatly rule this out
because you don’t know what you’re going to need to do when you’re president,
and you might find that military commissions are necessary.”
And so they rewrote that section of the
speech so that he was against the Military Commissions Act of 2006, the first
one, and listening to that, I think a lot of people came away with the message,
“Oh, he was against tribunals,” when it turned out that all he was against were tribunals under that
particular act, so that when Congress passed another one in 2009, which tweaked the rules a
little bit, he could say, “Well, this one is fine.” This was part of
deciphering the mystery of the disconnect between the expectations created by
his campaign rhetoric and how he actually governed.
Over and over again, you’re right, in the
second term of the Bush administration, as Congress was legalizing stuff that
the Bush administration had put in place arguably lawlessly, he was criticizing
it without making clear that he was against the earlier iteration of it, and
not necessarily the way it was going forward. Sometimes, with his vote.
He voted for the FISA Amendments Act, for example.
29.
GREENWALD: Right. There was very little sense of
“My big objection is with the Bush administration as it existed in the first
term, but as it exists in the second term, I think actually everything is
really great because now there’s a legal framework to it.”
And I totally
understand that this rendition of events is a rendition that you’re conveying
as being theirs and not yours. So when I’m critiquing it, I’m critiquing it
from the perspective that they seem to have in terms of explaining their
events.
30.
SAVAGE: Let me add one other thought just on
that theme. The first thing Senator Obama does when he clinches the nomination,
and his opponent is no longer Hillary Clinton but it’s going to be Mitt Romney,
he votes in favor of the FISA Amendments Act which legalizes the warrantless
surveillance program and immunizes the telecoms, even though he had said …
31.
GREENWALD: Unambiguously, that he would filibuster
that.
32.
SAVAGE: Yes. And I tell the story of that, and
some of the behind the scenes-y stuff about that, in a subsection chapter
called “Foreshadowing.” So he’s not president yet, but already there we see the
shift to “This
stuff is okay as long as it has legal authority. It’s not inherently wrong.” And in
retrospect, seeing how that played out in many other ways, I think that moment
was of singular importance.
33.
GREENWALD: I do think there were some cases
where Obama was pretty clearly objecting to the substance of the policies
themselves. I remember one speech where he gave in 2006 where he stood up and
it was probably the thing that made me pay the most attention to him at the
time, where he talked about the idea that as a parent, the idea that a government
could simply abduct his daughter and accuse her of a crime and put her in
prison but not give her a chance to have one opportunity in order to contest it
as part of this habeas corpus debate was horrifying to him, and then as
president he tried to deny Bagram detainees habeas corpus and I realized that
there’s distinctions drawn between what happens at Bagram and what happens at
Gitmo.
On this distinction itself between what
Bush did that was lawless and then what Obama did which was under a legal justification
and how that’s a key difference. If you were to present that argument to Bush
officials, what they would say, “Look, we didn’t take the position that we have
the right to break the law. We were sure that everything we did had legal
justification. We went to the Justice Department and we got the OLC right memo
saying torture wasn’t torture. We got memos from them saying that we had the
right to surveil. We went to the FISA Court.”
And so it wasn’t
that they took that position that they can just do whatever they want and it
doesn’t matter what the law was, the critique is: “we made the law fit our
policies rather than making the policies conform to the law.”
You describe a couple of controversies in
your book under the Obama administration that strike me as very much the same
thing. These are two fascinating things that I hadn’t thought much about. One
was the memo written
by David Barron and Marty Lederman justifying the targeting of Anwar al Awlaki.
They wrote what they thought was a really comprehensive memo saying that
the president had the right to target Anwar al Awlaki notwithstanding that he
was an American citizen. And then, after that, Kevin Jon Heller, the law professor and blogger, found
a law that seemed to really clearly prohibit it that they didn’t even talk
about and hadn’t thought about. Then they had to go back and scamper around and
justify it.
Then there was another case involving Omar Khadr, the 15-year-old
that they picked up in Afghanistan who, as a civilian, threw a grenade
at an American soldier and killed him. They were prosecuting him as a war
criminal. And the theory they were using directly conflicted, it seemed, with
the theory that it was okay to target Awlaki even if you weren’t a member of
the military, if you were in the CIA and not wearing a uniform. Do you think it’s fair to describe both of those cases and
ones where they manipulated the law to confirm to what it is they wanted to do,
much like John Yoo manipulated the law to justify those policies.
34.
SAVAGE: No, I don’t think it’s fair for a couple
of reasons. That doesn’t mean that they moments are beyond reproach or
criticism, but I think it is apples and oranges for the following reasons:
First of all, the first term Bush legal team’s ethos was a particular vision of
the Constitution whereby the president, as commander-in-chief, cannot be bound
by statutes and treaties that inhibit something that he thinks is necessary for
national security. I mean, that’s what their real answer would be: “it’s not
that we were lawless, it’s that our vision of the law is that we could do ... anything.”
Occasionally, they would go to the
Justice Department and get the box checked formally, and I tell some
newly-emerging stories about some really extraordinary fights in the Bush
administration, especially in the summer of 2004 about torture, when they got John Ashcroft to write
a one-sentence memo saying, “This is all legal; legal analysis to come.”
So that’s a little bit different than
really wrestling with the legal issues. You’re right on the first Awlaki memo
they didn’t address a certain statute that Kevin brought to their attention via the Opinio Juris blog and
then they went back and did a much more comprehensive memo that says …
35.
GREENWALD: And still concluded that Obama had
the authority that they said originally that he had.
36.
SAVAGE: Yes, they still concluded that,
notwithstanding the fact that the statute says that Americans can’t conspire to
kill other Americans abroad — the foreign murder statute — that didn’t apply to a war zone or
wartime killing.
And the Khadr thing, my understanding is
that issue had been percolating for a while. They were trying to prosecute
Khadr for fighting and killing while not wearing a uniform, while not complying
with the laws of war himself. And they said that’s an international war crime.
And this dates back to the Bush era military commissions. So if that’s true
aren’t CIA officials, who are civilians and may be pushing the button on a
drone, also killing while not being part of an armed forces?
But it’s not that they first learned of
that because of the Khadr manual, this was an issue that had been percolating
(I think Lederman had written about it before he first went into the
government) and it’s just that some other lawyers in the Defense Department
weren’t aware of it and were reproducing this language. And so on the eve of
the Khadr trial, just as they’re working on this Awlaki memo, it comes the
broader attention that they have this problem. In fact,
it’s never been considered a war crime to kill in battle without wearing a
uniform. It just means you don’t have battlefield immunity; you can be
charged under domestic law for murder. And so they fix it but it sort of
leaves a cloud over the Khadr prosecution.
I thought you were going to talk about a
few other instances where they seemed to push aggressively, like the Libya War
Powers Resolution.
37.
GREENWALD: That’s exactly my next question. If
you are going to talk about the theory that the president can do whatever he
wants notwithstanding what Congress decides, the House of Representatives not
only was silent but voted to reject the authorization to fight in Libya, and Obama ignored that and
fought there as well. I mean, that would be a pretty good example of
first-term Bush/Cheney …
38.
SAVAGE: That’s a slightly tendentious way of
explaining exactly how screwed up things were in the House of Representatives. They actually voted on three different propositions:
authorize the war as it is; authorize the war, but only with the U.S.
supporting other allies, but U.S. assets wouldn’t be directly carrying out
strikes; or require the operation to be pulled back and terminated. And
there was not a majority for any of those three options. Basically a third
of the House wanted each of those.
39.
GREENWALD: Right, but that does mean that
authorization came up before the House and failed. That to me
seems like an example of the kind of way you were describing the Bush/Cheney
worldview: that the president has the authority to take certain action
notwithstanding whether Congress wants them to or not.
40.
SAVAGE: No, I think it’s more like the president
has the authority to act in the teeth of a statute that says he can’t, as
opposed to the president can act when Congress has not gotten its act together
enough to do anything. And they came up with the theory that a limited air war
authorized by the U.N. in multilateral operation without ground forces is not
the sort of hostilities that Congress had in mind after Vietnam after they
passed this law. They don’t say this
law does apply to this situation, but the president, as commander-in-chief, can
trammel it. They, in fact, deliberately don’t go there.
But it raises this interesting question
that I think is behind what you are trying to get at — and this is a question I
asked all these people I talked to because I am fascinated by it too. So if the
Bush administration goes to a John Yoo or a David Addington and he writes a two-page memo that says,
“The president is commander-in-chief. We can do X. Let’s get lunch.”
And the Obama administration goes to its
legal team and they spend months and they write a hundred-page memo that
agonizes over every nuance and permutation and is full of footnotes and goes
through all of the possible objections and comes up with reasons why those
objections don’t apply in this instance and finally conclude, “We can do X.”
Does that make a difference? [Charlie Savage.] Or does one just have more papers filling up
the file folder, but at the end of the day the government is still doing X?
So when I challenged various members of
Obama’s legal team with that proposition, their answer was: “Yes it does make
a difference, even when the answer is the same, to have really robust legal
thinking and process because, in some sense, the process is an end to itself.
It makes you really think about the hard issues and think through them and may
bend your thinking toward a different outcome so that you never get to the
point that when you want to do X it is forbidden by some law.”
And then their other answer was: “In
fact, sometimes the lawyers do say no and we don’t do something that we
otherwise wanted to do.”
41.
GREENWALD: As you say, one of the critiques
during the Bush years by people like David Barron and Marty Lederman who ended up in the [Obama]
Office of Legal Counsel, was: OLC in particular is not there to be the lawyer
for the president, they’re there to tell the president no sometimes. Are there significant examples where Obama wanted to do a
certain policy and OLC lawyers told him, “No, you can’t do this. This is not
legal.”
42.
SAVAGE: So I went looking for a lot of those. I
didn’t find that many, but I found some. One off the top of my head, there was a Hezbollah terrorist named
Daqduq who was the last U.S. prisoner in Iraq as U.S. forces were pulling out
at the end of 2011. He was implicated and apparently confessed without
torture (I don’t know if that’s true, but that is what they said) to being
involved in an operation that killed some American soldiers by using
subterfuge, dressing up in Iraqi uniforms and kidnapping them and shooting them
and leaving them by the side of the road.
So he had American blood on his hands [Charlie Savage] and he
seemed like a genuinely dangerous person and they really wanted to keep him
locked up. But their detention operations were winding down and they had to
figure out what to do with him. Our Memorandum of Agreement with the Iraqi government, which the
Bush administration had agreed and signed, the Iraqi government had final say
over the disposition of any wartime prisoners in Iraq.
The Iraqis would not allow us to take him
and bring him either to the United States for a civilian trial or to
Guantanamo. And we were afraid that if we gave him to the Iraqis they would
just let him go. They really wanted to keep him locked up. In the end, they could not find a way to do it without
violating Iraqi sovereignty and eight or ten months later they did let him go
and they all were bitter about that, but the lawyers just couldn’t find a way
to do it.
43.
GREENWALD: Right. That’s definitely an example. But it is reasonable to say that the OLC was not really any
meaningful impediment to the broad policies or most significant actions that
Obama wanted to take.
44.
SAVAGE: Well, most of the actions that he wanted
to take were congruent with what OLC concluded would be lawful for him to take.
Its advice as this larger inter-agency lawyers groups that I chronicle may have
helped to push and shape and discipline the deliberations towards that
direction sometimes. I also point out places — especially the War Power
Resolution fight over Libya, where he acted different from how OLC thought the
best interpretation of the law came out.
45.
GREENWALD: Let’s talk about something else
that’s complicated, which
is the targeting of Anwar al Awlaki. The key distinction that you
depict in the book is that, for a long time, Anwar al Awlaki was a
propagandist, a dangerous propagandist in the eyes of the U.S. government
because he was reaching an English-speaking audience with appeals to jihad,
convincing lots of people that it was their duty, obligation and right to bring
violence to the U.S., but not actually a terrorist operative. It was only
once Abdulmutallab, under questioning, said that Awlaki was actually part of
the plot to blow up this airliner, did they conclude that he was more than a
propagandist, he had now become an operative and now they could target him with
killing.
As you acknowledge in the book, there is
a pretty impressive list of sources, including Dana Priest at the Washington
Post, who reported at the end of 2009 that Awlaki was on one of
their kill lists; my colleague Jeremy Scahill, who insists that they tried to
kill Awlaki twice with airstrikes in Yemen at the end of 2009; Long
War Journal, as well, which has lots of sources who insist that they
were trying to kill him before they ever talked to Abdulmutallab.
You say you are convinced they’re wrong
because a lot of the people who you talked to who were in a position to decide
this were very clear that they didn’t put him on the kill list until they were
convinced that he became an operative. [The Beauty of Bureaucracy.]
One of my questions, having talked to
Jeremy and hearing his side, is it possible that both are true — namely that
people at the highest levels of the Pentagon and the White House hadn’t
formally directed that Awlaki be targeted but, operationally, the people
ordering these strikes were nonetheless trying to kill him before Abdulmutallab
implicated him as an operative?
46.
SAVAGE: Let me unpack that in a couple of
directions. For the background of your listeners, there was a strike on December 24, the
day before the underwear bombing, in which the Yemeni government put out
a statement (when it was still pretending that it was conducting the drone
strikes, when it was the U.S.) which said that we struck an al Qaeda in the
Arabian Peninsula (AQAP) meeting and Wuhayshi and al Shehri, the number one and
number two leaders of AQAP were there and we also think that Awlaki was
present. And then it turns out that none of them were there and they all
survived.
From that, I think there has been a lot
of reporting that assumed that
Awlaki was the target without actually having a source that was saying that,
and I would put Long War Journal in that category.
Separately, in the Washington
Post, Dana Priest reports in January of 2010 that she had been
told that Awlaki was not the focus of that strike, but that he had been
approved for targeting sometime in the final week of ’09.
47.
GREENWALD: Which would have been before Abdulmutallab
implicated him.
48.
SAVAGE: There were no other strikes there,
right.
49.
GREENWALD: Right.
50.
SAVAGE: So, I just think she’s completely wrong.
She had some source of garbled sourcing in that article. To her credit, she was
the first to write about targeting him at all, so she was clearly getting
something but it was through a glass darkly and she had to retract a big chunk
of that article later and I suspect that it was the same bad sourcing that led
to this stray claim a couple of paragraph from the end of that article.
So that leaves the
December 24 strike … you’ll note that Jeremy
doesn’t say in his book that he had a source telling him that, he just sort of
states that Awlaki was the target. And I’ve talked to lots of people …
51.
GREENWALD: He says
he has sources. He says he has operational sources.
52.
SAVAGE: Well, I’ve talked to him about it too.
I’m just talking about his book Dirty
Wars.
So I’ve talked to lots of people and they
were just like, “No, that’s not correct. And, in fact, it would be ludicrous
for us to target him at that point without any lawyering about the citizenship
issue.” This is the most lawyerly administration ever. If nothing else they
wanted that hundred-page memo with all the footnotes and so forth before they
did something that edgy. But beyond that I actually have an on-the-record
source — Mike
Leiter, among others, saying, “No, it was in late January after
Abdulmutallab fingers him that we have enough that by our standards, we can
actually target him.”
But beyond that, it’s illogical. If they thought that al
Shehri and Wuhaysi, the number one and number two leaders of al Qaeda in the
Arabian Peninsula, were there, that’s all you need to pull the trigger at that
point. And so there’s been this sort of mythology of Awlaki, especially
in the West, because he’s an American citizen, and because he goes on and
becomes so fraught, that he was this singularly important person in AQAP.
Wuhaysi is the singularly important
person in AQAP. Whether someone — and if they thought they were there — they
would certainly not have been sad to have hit him as, sort of, “enemy killed in
action standing near the target.” But to say that he
was the target or if he was alone on a road somewhere and there was no lawful
target next to him, they could still pull the trigger, I just think
fundamentally misunderstands what actually happened.
53.
GREENWALD: Ok. Now let’s assume, for the moment,
that they didn’t target Awlaki until Abdulmutallab in some way implicated him
as an actual operative. To me, that doesn’t remotely resolve the debate. I mean there are still huge problems with having the U.S.
government meet in secret and decide that someone is guilty based on evidence
that can’t be tested and that no one can see.
54.
SAVAGE: Especially that
latter part. The fact that they didn’t, and still to this day, haven’t made
public their evidence is outrageous.
55.
GREENWALD: I mean, if you think about the
evidence they point to primarily, which is Abdulmutallab saying that Awlaki is
involved, at that point Abdulmutallab had been severely burned in his groin. He
had undergone surgery. He was in their custody for many weeks. For a long time,
he wasn’t talking. Then they brought in his family members, and, as part of a
plea bargain, he began speaking. I think it was in order to prevent him from
getting the death penalty.
We don’t know the extent to which he was
pressured to implicate Awlaki, we don’t know exactly what he said about Awlaki. I mean, in
an ordinary situation where you’re actually going to punish somebody, let alone
kill them, based on a conclusion that they’re guilty of something — these are
all kinds of questions that would be very carefully examined and here, none of
these are examined.
Is there a very definitive sentiment
among most of the people that you spoke to that killing Awlaki is, as you say
Obama believed, something they had very little discomfort about, or do they
have an understanding about why, for a lot of people, imposing the death
sentence on an American citizen based on evidence that nobody can see, and whether
you think it’s Constitutional or not, certainly no real due process in the way
we think about that, why that’s really problematic.
56.
SAVAGE: I couldn’t
find anyone in the administration, from the most doveish wing to the most
hawkish wing, who didn’t think that Alwaki was who they said they were, and
seemed to have second thoughts about the notion that he was, in fact, coming up
with plots. And if he wasn’t taken out one way or another, sooner or later one
of those plots were going to succeed.
I do not know what other evidence they
had besides the Abdulmutallab confession, which is apparently quite detailed
— some of it came out at Abdulmutallab’s sentencing — but we still haven’t seen
the raw transcripts and they’re not making those public. And they should. I
don’t know what kind of electronic surveillance or other kind of corroboration
they had. They’re not making that public, and they should.
In some ways, though, there is also a
dilemma here, which I think critics of that operation need to grapple more
firmly with. [Charlie Savage.] And
I’m not saying this as, you know, to defend them, and more to issue spot and
say this is really interesting stuff. The idea of a death sentence
without a trial already is assuming this isn’t war, because killing an enemy in
war is not a death sentence. It’s killing an enemy in war.
But beyond that, so he’s not in U.S.
custody. And we don’t
have boots on the ground in Yemen who can go arrest him, and the Yemeni
government is hapless. Now, it doesn’t even exist, basically, so they can’t go
arrest him. [Charlie Savage.] So let’s stipulate for a minute that
it’s true that he is sitting there coming up with plots like the Christmas 2009
bombing, and the cartridge plot, and so forth, and sending young dupes like
Abdulmutallab out to their death to try to kill a lot of innocent people. And
he can’t be arrested.
Well he can’t be tried either, because we
don’t have trials in absentia. I don’t think that’s what civil liberties
advocates want brought into the United States. So that leaves this dilemma of, if you
have an opportunity to take a shot from the air and stop him, do you do that,
or do you just sort of sit back and let him keep taking shots at the U.S., and
sooner or later, he’s going to succeed at killing a lot of innocent people.
There’s not really a great answer there.
But the people who say, “Well, if we couldn’t try him we shouldn’t have done
it,” I think aren’t really grappling with the problem of not having trials in
absentia. To me the thing that’s really disturbing about it is the secrecy.
They were so secretive about their legal analysis, not putting it out there so
people could grapple with it, and see what the scope and limits of it were, and
argue about it, and make sure they got it right, and it took some leaks to me
to get some of it out, and then it took a massive lawsuit by myself and Scott
Shane and the ACLU to get a lot of the rest of it out, years later, and then
the fact that to this day they have not put out the intelligence — the
evidence — to me, I think they should.
For me, something of this magnitude, to
continue to keep it concealed, obviously there must be some sources and methods
that would be put in jeopardy, but it’s years later now. It’s something that
needs to be part of the public record in our democracy.
57.
GREENWALD: Right, and there are answers to all
of those points that you just raised, including “Why not indict him and show
some of your evidence that way?” which you do address in your book about why
they didn’t want to and why they thought that would be a bad precedent. There’s
also the fact that this should only be done if somebody’s really a big enough
person to kill this way. And then they have operations as they proved with
Osama bin Laden where even if you don’t have boots on the ground, you can still
actually go to where the person is and get them. And you know, we could have
this debate forever but we can’t because this podcast will be three hours long,
and it’s a good reason to go and read your book.
58.
SAVAGE: [Laughs] How
many people are left with us, Glenn? It’s just you and me talking to each
other.
59.
GREENWALD: I think people are going to stay
engaged, because these issues have been huge controversies and we are getting
new information in the book about a lot of the things that the administration
says. And there are a few topics that I’m going to skip over because I want to
have only one more question — including Obama’s decision not to prosecute or
even investigate for torture and, in 2009, his decision to let the metadata
program continue notwithstanding lots of violations that were happening. Things
that you discuss at length in your book, which people can go and read.
60.
SAVAGE: On the latter, Politico — which, by the time this airs, it should already
be up — is going to run an excerpt from the book that has most of that opening
scene from chapter five, the meeting where Obama learns about the metadata program and decides
to keep it, so if people are interested and you aren’t sure if you
actually want to buy the book, go to Politico
and you can read that part.
61.
GREENWALD: Excellent. So, the last question that
I will ask is about your discussion of what you call the “leak crackdown” under
the Obama administration, which you define in this way: “By Obama’s seventh year in power, he had overseen nine criminal cases
involving unauthorized disclosure of government secrets for public consumption.
By contrast, under all previous presidents combined, there had been just three
such cases.” So Obama tripled the number of all prior presidents
combined.
62.
SAVAGE: So far.
63.
GREENWALD: So far, right, and there’s still some
time left. But one of the things I wanted to ask you about is, you describe how
this has made your job as an investigative journalist more difficult — the
climate that it has created, along with the climate of the surveillance state.
And how both of those have combined to make your doing journalism almost
impossible in some really critical cases, including some of the work you wanted
to do in finding out about these surveillance programs prior to Edward
Snowden’s coming forward and disclosing a lot of it.
Talk a little bit
about that experience. Why, and in what ways — I think it’s abstract for a
lot of people who aren’t journalists to understand why the climate that’s been
created makes a free press and makes journalism so much more difficult.
64.
SAVAGE: So, as a premise to this, when you say
the surveillance state, part of my argument is Obama didn’t really intend to do
this, he didn’t make a decision to do it — or Eric Holder — it just
sort of happened, which is more disturbing, I think, in part because metadata
now makes it impossible to hide who is in contact with whom, or almost
impossible, if you’re not technically adept enough to use certain techniques.
And even then, you know, query whether it’s really safe.
It’s much easier
now to see both who had the secret and has some sort of social link to the
reporter who wrote the story than it was five or ten years ago. So cases are
solvable now that were never solvable before. That’s something that’s going to
be very hard to turn off.
Suddenly people are going to prison for
leaking when before, they might have been fired or they might lose their
security clearance or they might just not get invited to the meeting. There
wasn’t a case that could stand up in court, and now there is.
This created, especially at the peak of the leak crackdown,
which is sort of 2010 to 2013, a climate in which the ordinary leaks, of
the sort where it’s one discreet piece of information someone wants to get out
there, or a reporter has a question about — it may not be whistleblowing, it
may just be something that’s true about the world — became chilled.
A lot of this I can’t talk about because
I don’t talk about my confidential conversations with sources, but I got one
non-source to let me bring one of those conversations on the record to
illustrate it, which was Michael
Sussmann, who is a Perkins Coie lawyer and former Justice Department official who
was representing Sprint.
So when Senator Wyden and Senator Udall start saying
there’s something funny going on with the Patriot Act that people would be
outraged about if they knew that it was being interpreted in some totally
twisted way, but we can’t say what it is. And so I was going around and talking
to as many people as I could, and none of them would talk to me about it.
In
particular, I thought Sussmann might know something. When I asked him about it,
he pointed to pictures of his children on his desk and he says he was not going
to help me because he’s got kids, and when the FBI comes and asks him whether
he helped me, he wanted to be able to pass a lie detector test and say that he
didn’t.
And then I
come to find out after all this comes out that he hated this program, and he
could easily have told me just enough information that I would have figured it
out. He
could have said, “Everyone’s forgotten that USA Today wrote an article about something interesting in 2006.
Go find that article.” And I would
have been able to put two and two together and get it. But he was chilled from
doing that.
And so the pressure release valve of
ordinary leaks was jammed shut by the leak crackdown, and it just continued to
build until Edward Snowden blew it open.
65.
GREENWALD: Well Charlie, thanks so much for
giving me so much time. I know I took more time than I told you I was intending
to …
66.
SAVAGE: Glenn, I will talk about this book
forever. So it’s been a pleasure.
67.
GREENWALD: And I could too. As you know. I
think the reason why the book is so interesting is because so much of this has
been done under secrecy, and very few times have the people who have done it
had to account for what they’ve done, and you really get a full sense of at
least what they’re thinking, and sometimes you get a little persuaded, and
sometimes you get really angry. But it’s very thought provoking, and a really
worthwhile way to spend your time for people who are interested in these
topics.
68.
SAVAGE: Thank you, Glenn.
69.
GREENWALD: It’s a great book,
congratulations, and thanks so much for taking the time.
70.
SAVAGE: Alright.
No comments:
Post a Comment