Transcripts For CSPAN2 Book Discussion On Power Wars 20160214

[inaudible conversations] welcome. My name is a gene healy. Im a Vice President here at the Cato Institute and ill be your moderator today. Thank you all for coming out to the first cato event of 2016. Today, we are going to spread the new years cheer and take the chill out of your bones with an in depth look at remotecontrolled executions, the creeping surveillance state, and the seeming permanence of the imperial presidency. So merry new year. Our focus today is the extraordinary new book by Charlie Savage, power wars inside obamas post9 11 presidency. Charlie has been with the New York Times since 2008, and he has been the indispensable reporter on executive power issues since well before that. In 2007 while with the boston globe he won the Pulitzer Prize for his work on the Bush Administrations signing statements. Is 2007 book, takeover, the return of the imperial presidency, was named one of the best books of the year by the washington post, slate and esquire. To describe power wars as comprehensive what i think undersell it. Look at this thing. You cant actually, theres no index available. In the book you have to actually print out 50 pages of index from charlies website. Its a mammoth undertaking and well worth the effort. It breaks new ground and new stories based on interviews with over 150 current and former officials. Its basically a one man 9 11 Commission Report on how we got to where we are today. Power wars picks up where takeover left off with the arrival of a new administration that had pledged to, quote, turn the page on the executive aggrandizement of the bush era. And yet as a charlie rights, early on in the new president s tenure, obamas policy choices that departed from bush era programs dwindled, and those that continued were even expanded bush era programs rose from a fierce campaign of drone strikes whose targets would include an american citizen to the perpetuation of a sprawling and voracious surveillance apparatus. People across the ideological spectrum would voice with increasing intensity what became a defining accusation not just of the moment but that the entire presidency, obama was acting like bush. Our distinguished commentator today is michael glennon, professor of International Law at Tufts University and the former Legal Counsel to the Senate Foreign relations committee. His 2014 book, National Security and double government was the most disturbing thing i read that year. In it, professor glennon asks the key question, why does National Security policy remain constant even when one president is replaced by another who come as a candidate, repeatedly, forcefully and eloquently promised fundamental changes in that policy . He identified three possible causes for this striking the tree of policy continuity between the two administrations. One possible answer is a rational good faith threat assessment by political actors. These were the policies we need, we needed given the threats that we face. Another is the enormous political pressures brought to bear on the presidency, whether rational or not. What a professional clinton put his emphasis on a third cause, one thats going underrecognized professor glennon and emerging autocracy made up of National Security insiders. We have moved beyond a mere imperial presidency to a structure of double government in which even the president exercises little substantive control over the overall direction of u. S. National security policy. The boston globe summed up his thesis rather starkly as vote all you want. The secret government will not change. You know, you can find evidence for all three of these causes in the pages of power wars, and reading it, it struck me that looking for single corporate behind the persistence of the imperial presidency is Something Like looking for a model causal explanation of the american obesity crisis. Are we fat because of High Fructose Corn Syrup or supersized portions, or because we watch five hours of tv on average a day . Yes. Like our expanding waistlines, are expanding presidency is depressingly overdetermined. But anyone who wants to figure out how they got to where we are today, and if we can possibly get back, will have to start with power wars. To kick off the conversation please welcome Charlie Savage. [applause] thank you very much for the kind introduction. I like the idea of the one man 9 11 commission. I could listen to you talk all day. Thank you very much, michael, for coming down from boston to participate in this event. I really liked his book. I was recommended to me as i told a couple minutes ago by a former water in the Obama White House about a year and about a year and half ago when i was researching my book and we were talking about the dilemmas and difficulties they encountered once they had, to office. I immediately ordered it and devoured it and cite him about. Thank you to all of you i was wondering whether we would have any turnout today. Its so cold after the ridiculously warm peace and. Would i go out what im amazed and heartened that such a good crowd and those watching on cspan as well. Im just going to talk maybe 15 minutes about my book and then mike will talk all of it and they will have a conversation and move to audience questions. Ill start with a story of my book. I have been in washington covering National Security issues and legal policy issues since 2003. Sort of road the wave and on abu ghraib and the attempt by senator mccain to slow the ban on torture and the statements from bush they came out of that is what revelations about wiretapping by my future colleagues at the New York Times. I was a bit of the boston globe. Essentially this became a specialist layer of what the government has been doing, continuing to limit, the legal fights, security individual rights, after 9 11. You may remember in january in 2000 im a president obama was inaugurated there was a moment in which it looks like the war on terror was suddenly, abruptly over. He had run on a platform of change from george bushs mobile war on terrorism, a big critic on the campaign trail for the, conducted itself after years after 9 11. Is an ideal address talked about getting away from the since there had to be a trade off between constitutional ideals and security. And among the first things he did was issue a series of executive orders, so less secrecy, closing cia black site prisons, banning torture, order in guantanamo closed. It looked like it was over, and this thing i become a specialist in and a couple colleagues of mine did for a living was no longer going to be available. I remember joking that were going to have to find new jobs. Megadose opening in the Sports Department and we could keep paying the rent somehow. But very quickly became apparent to me that it was not overcome that there would be much greater continuity in the counterterrorism policies of the new administration with the old one, and the expectations created by ben senator obamas campaign rhetoric. Some of his incoming cabinet members in remarks during the confirmation testimony had a firm that, in fact, they thought it was lawful for the government to hold terrorism suspects without trial under the laws of war, that theyre going to continue the practice of rendition, transferring people to other countries from one Intelligence Agency to the next based only on diplomatic assurances that there would not be mistreated, which was exactly oshas policy, at least on paper as well. Bushs policy. They shut down military commissions anyway they look like they were keeping the door open. They were asserting the state secret privilege in court to continue blocking lawsuits about torture in surveillance that they had inherited from the Bush Administration. All that was apparent by two or three weeks into the new administration. I called up the new white house and said i was planning on writing a story about the surprising emerging continuity, and one difference between the Old Administration and the new one was the Obama Administration wanted or at least was willing to engage with me. Went i would call the Bush Administration as i am going to write a story about the signing statement that says you can torture not within the antitort law, they would kind of blow me off. This new administration called me into the white house. I went in and talked to greg craig who was obamas First White House counsel in his office, and we went through this sort of litany of things that were not changing. He explained that they were not going to have a shoot from the hip Bumper Sticker slogan abrupt changes in government policy. It going to look carefully at everything they had inherited and move deliberately, and that involved going out to langley into the pentagon and so forth even during the transition in getting briefed by the members of the permanent National Security establishment, sort of the subject of michael spoke about what the programs were, why they were necessary, what they were doing, was revoking them would entail. And he argued, whether civil liberty people on the left or the right and things like this were upset by that, or it was wished administration veterans who were claiming vindication by that, that both sides were wrong, charting their own course, people should just give them time to let this work out. I continue to cover these things and became very interested in the targeted killing of the american citizen, anwar awlaki, not a lawsuit along with the aclu, to try to make them reveal their legal thinking about the scope and limit the governments power to target an american citizen who was not convicted in a court in this sort of National Security situation like that. And then i eventually began to teach class with mike davidson, retired work on the Senate Intelligence committee at Georgetown University on National Security and the constitution in which we had to organize all the stuff ive spent a decade immersing myself in in a way that educated but not specialist could understand. What are the 10 things you need to know about everything thats been unleashed about surveillance, whether its not clear what the law means anymore, or new technologies that challenge the old rules that were not written for the situations. What are the 10 things you need to know about tension or interrogation or leak investigations or secrecy or war powers where 21st century situations have reopened questions that seem to be settled and the 20th century because the premises are all different now. The laws of war are written for nationstate armies in uniform, clashing on a little battlefield, how that gets applied by analogy to a transnational nonstate actor, Armed Conflict like the war against alqaeda has opened and an ending tensions and dilemmas that are fascinating and unresolved. The idea was the students would learn this stuff and then the next time someone gets arrested for terrorism and they are on cnn, they are arguing about whether this person should be read the miranda warning our wing should be prosecuted in militarmilitary commission or ae iii civilian court, they would be equipped to understand what was that was the unspoken assumption behind this argument and working from. In the midst of that Edward Snowden leaks massive amounts of documents about the surveillance statement and becomes more clear than ever that obama has not changed really at all the nsa apparatus that he inherited, including the bulk collection of domestic phone records. Thats when i started this stuff really needs to be organized and made a book. I couldnt do it justice in newspaper form. It was just too much material, and everything really related to everything else. You couldnt understand what to look at any argument about closing guantanamo if he didnt also understand what had gone on with cia torture in the attempt to prosecute and failed to prosecute and why commissions were collapsing which in turn turned on what happened in christmas 2009 and the attempted underwear bomber and that created this big fight in new york. These things were an embedded web of complexity. To tell it systematically was the goal. I spent the next couple of years organizing and researching. When i sai say i talk to one ofe people i dont mean i had 150 interviews. I have probably 1000 images because i kept circling back to people but a trusted and crossreferencing memories of accounts of in toronto liberations as i would focus on this and research it, remember this quick someone told me it happened this way . Is that correct . I assembled this book which is in some Ways Organized similarly to my georgetown class, schematic chapters and chronology and stories within each chapter. So a lot of it is case studies, youre a fly on the wall trying to, you get to be in the situation room as actual people who want to think of themselves as opening the rule of law are dealing with difficult situations in the world, and on the options are perfect. Theres no clear answer. Everything comes with some Downside Risk invited to make decisions they do. Over the options . A lot of case studies. Out of the illustrate the reoccurring friction of the rules of not being clear because they were not written for the situation. But then are rising from the are some big picture questions. The biggest of them all is how is it that obama has had so little change from the policies he inherited from the second term Bush Administration, where did this disconnect him from . Why do people keep saying hes acting like bush . How did we get here . How did this happen . One of the takeaways i put forward in this book is an argument is that what it means to act like bush is, can mean more than one thing. It easier to see now than it was at the time when the bush years in organizations like cato we are having conferences in which people account discussion criticizing bush over there were rallies and so forth. They were two different strands of criticism. They were entangled together but, in fact, the stinker to with the rule of law critique and the Civil Liberties brigade. The Civil Liberties critic says its inherently wrong topic or it was wiretapping program, or to have a system military commissions because the state should not have that power, visavis the individual. Its unamerican. The rule of law critique is agnostic about whether, with exception of torture, whether the savings are a good idea or bad idea. Torture is always legal. Maybe these are a good idea given the challenges of 21st century transnational terrorism, but its focus on the process. The president doesnt get to break the law, and so as a federal statute says you must get a warrant to wiretap on domestic soil in a wartime. The president does it is in secret on commanderinchief, i can ignore that. The president has to go to congress and persuade lawmakers to remake the law so that statutes authorize rather than forbid what it is he or she wants to do. One of the big differences between the rule of law critique and Civil Liberties critic is the rule of law critique is fixable. If something violates Civil Liberties bill white to fix it is to stop doing that thing. If something violates the rule of law congress can pass a bill to change the law so that it no longer violates the rule of law. In a second term of the Bush Administration Congress Passes the military commissions act, passes with senator obamas vote the fisa Amendment Act between no doubt intelligence court was issuing secret rulings which divisional level programs that were collecting everyones phone records and email records and routed them in a somewhat seditious claim that the patriot act authorized them in closed court oversight. By the time obama becomes president , if you think the problem that acting like bush and by letting the rule of law, the problem is largely fixed. If you think the problem is acting like bush is violating Civil Liberties, the problem is not fixed because who cares if congress is blessing these things. Part two of the analysis is barack obama is a lawyer, obviously. Joe biden is a lawyer. Bush and cheney are not lawyers. They are ceos by background. They had few lawyers who surrounded him. They were perhaps the least lawyerly administration of the. The few lawyers they let into the room had a series of executive power. Weve gone from that extreme to the opposite. This is probably the most lawyerly administration ever. Not only are barack obama and joe biden law school graduate, they are clearly the most comfortable when talking with law school graduates. They feel they fill the upper ranks of the administration with fellow lawyers. Theres a million examples, the secretary of state, bush is to sectors of state condi rice and colin powell are not lawyers. Hillary clinton and john kerry are but that replicates itself and the National Political apparatus. Their approach to problems is brought to bear on what to do think the problem is with bush. Not surprisingly they are overwhelmingly, 80 to go back and look at transcript of things on the bush years, they were the ones articulate the rule of law critique, not the Civil Liberties critic. This was obscured in the campaign especially senator obama is in the primary against Hillary Clinton and theyre competing for the affections of the liberal base thats upset with bush and cheney. They dont want is that i think what theyre doing is maybe okay. They were like this is wrong. If you go back and parse what they were saying, what obama was saying especially, if it was quite deliberate. I tell a story about how and to thousands of august obama gives his big National Security speech at the Wilson Center down the road he was going to say im going to be against the to commissions. Jeh johnson who is now the security secretary, a Campaign Adviser says you dont know what problems you might encounter as president if you need to maintain flexibility and every right to speak to this im against the military commissions act of 2006. People who do and think its against commissions but he said hes against that, Commission Set up that way which leaves them open to be procommission under some of the law, except what happens when congress has a new version of the commissions act and he embraces them. Ill close with the story that sort of illustrates the themes ive been talking about. In 2013 when Edward Snowden revealed many things, among them the ball phone records program, the patriot program, theres this eruption on the left and the right. Civil libertarians on the left, Jim Sensenbrenner of all people and congress cant stand this but this is not america. Theres no Political Support and it leads to the neck of the usa freedom act, and its therefore pretty surprising in retrospect that obama cant this thing. One of the things id reconstructed was the meeting at which he learned about it and decided to keep it. That was either february 4 or 5th or 6th, 2009. He had been president for a couple of weeks, and one of his few political lawyers who knew about the program because she had been national street lawyer in the senate when the fisa amendments act was enacted and the unclassified briefings really wanted the new president and his top team to understand what it is theyve inherited in the surveillance world. She organized a briefing in the situation room right after lunch, and obama is late. Its this sort of thing fraught moment. Dick cheney had broken the protocol to publicly attack them and say that his decision to end the black site program and torture is going to result in a tiny being attacked in a catastrophic way. The day before cheney says of his, and that it didnt is supposed to go meet relatives of the victims of the 9 11 attacks and the cole bombings were upset with him for their frozen military procedures at guantanamo. A very stressful moment with the possibility of an attack in the forefront of thi of his mind. He comes in, hes chewing nicotine gum so hes a little stressed. Sitting around a table in the situation room our members of the private sector the state, they office of the director of national intelligence, the central Intelligence Agency, the National Security agency. Their directors and lawyers and Justice Department National Security officials, these are michael people. People who stay on between administrations and sort of run the show even as a george bush is replaced by a barack obama. So they explain these programs. Heres what were doing here, heres what we are doing here. To get to the patriot act program and they say, well, this allows us to trace indirect links between people and we can use it to hunt for hidden cells, associates of known terrorist we did know about. Hidden associates that is. Its really important. We think if we had it in place before nine 9 11 we wouldve stop those attacks, which is a claim that doesnt doesnt withstand scrutiny when it comes to light but thats what they said. It was put in place unilaterally by george w. Bush in october 2001 and maybe there were some legal problems with it originally but in 2006 intelligence court begin blessing and so its rooted out in Statutory Authority and Intelligence Oversight Committee know about at their all for it. All three branches of government on board. Theres problems opening the rules lately, just technical, we will fix them. We think everything is fine. Obama says to them, well, im comfortable with what you told me but i want my logistical. His lawyers are sitting next to. Greg craig and eric holder who just got confirmed as attorney general. They go off and to look at and they did not disturb the initial sort of decision to mend and keep and not in that program. I mostly with is one of 50 people i talk to i did so on background rules. I could not identify them as a source of particular information but occasionally i was able to negotiate with something onto the record with somebody. Greg craig nicely let me say to my readers what it was he said when asked them, why did you guys keep this . Look how little support there was for it across the i logical that the ideological spectrum. Why did you guys just dont present we think you should turn this off the moment you learned about it. You couldve avoid a huge headache. His answer was, well, look, eric holder and i are both criminal lawyers. He was a farmer public defender and eric holder was a former prosecutor. They had done a lot of criminal trials in which police used trap and trace devices to collect records of who they suspect was calling or receiving calls from. Not the content. They knew very well in 1979 the Supreme Court had ruled that the Fourth Amendment did not cover that kind of data because once you reveal something to the phone company, third party, you have no expectation of privacy over it. That was the case that involved one suspect called for a couple of days, not a vote in the countries called for five years. But the reasoning behind why the Fourth Amendment doesnt apply, doesnt turn on volume, a million times zero is still zero, and so theres no constitutional issue and it was very important to them that this had been brought under the courts oversight and would in a claim that a statute authorizing and it didnt seem to be a rogue program. There seem to be Legal Authority for it. The question then was not whether to keep it or not. The Intelligence Community wanted it and there was Legal Authority for it and so the tap was to within the bounds the court authorized and added a few more internal oversight and that was it and they didnt think about it again until Edward Snowden people on. That is the way of the we would analyze the issue, is there Legal Authority for this . Yes. No problem. No . Theres a problem. It sort of jumps past or doesnt go down the path of Civil Liberties critique. Is this the way the United States government should be acting . Is this a country we thought we lived in . So that illustrates i think at least part of an explanation equipping people to understand why things turned out the way it did. Is the right obama acted like bush, turning on how you define but acting like bush means . Without i will pause and let michael steele. [applause] jeanne, thank you again for inviting me back to cater but its a pleasure to be here today to talk about a book for which i have tremendous admiration. There are books on National Security policy are either about the facts or the law but not about both. Virtually no one has the reallife sources to know whats really happening and also the legal knowledge to put whats happening into a legal framework. In this regard, Charlie Savage is unique and is written a unique book that combines behind the scenes repertoires with lucida legal analysis. 100 years from now i believe that power wars will be the first book that legal historians pick up in trying to understand the Obama Administrations National Security policy. The great significance of this book in my reading of it lies in a massive documentation of the dominance of the permanent Security State, as charlie has just referred to it. Its influence is often subtle and almost always behind the scenes, but it is nonetheless pervasive in the Obama Administration, every bit as much as it was in the Bush Administration. Both the National Security bureaucracy as a powerful force, charlie rights, and on many occasions the obama team bent to its warnings the particular counterterrorism actions were necessary, unquote. The number of holdovers, officials, who held the same or similar jobs in both administrations is quite remarkable. Over and over key decisions are made or influenced by ever present careerists. The law governing their conduct is blurry and malleable, giving him broad power that is exercise with little accountability. They thrive on secrecy. Quote, the prominent bureaucracy gets nothing from transparency, and sees it on in of risk, unquote, and if an administrative official tells charlie. Page after page of power wars provides evidence of its reach. No branch of government is immune to its influence, congress and the courts all defer to. Consider for a moment each branch in turn. When it comes to National Security matters, the president is more preside are then decide or. Charlie cogently explains why. Quote, for all the focus the media and historians tend to put on president s as individuals, bush did this, obama did that, the world and the government are so collocated that a Single Person cannot Pay Attention to all of it. The president sets the tone and the priorities, and they usually are the ones who make the very biggest decisions. But the overwhelming majority of what an administration does takes place in the trenches of the executive branch, branch bureaucracy. Dozens or hundreds of individuals whose names are unknown to the public who rarely show up in history books make decisions every day about matters that will most likely never be brought to the president s personal attention, or that may be discussed only briefly in the oval office at a 10,000foot level, unquote. The book is filled with examples of what charlie is talking about. In 2009, for example, charlie just mention obama sworn in only days before his briefed for the first time ive the managers of the permanent Security State on its continuing both Surveillance Program. They assure him that the programs are not only vital to the nations security but perfectly legal. It seems to mean nothing to anyone present at the Surveillance Programs in question were legitimated by a pseudocourt, or barely understood why cheerleaders of the Intelligence Committees which the 9 11 commission had earlier labeled as dysfunctional, john mccain described as coopted. So obama turns to eric holder and greg craig, as charlie described already, very busy, probably trying still to figure out where the mens rooms were, and asked what they think. So they could realistically at that point raise any meaningful concerns. And, of course, not surprisingly neither one of them does. As time goes on whistleblower prosecutions go from three for the Obama Administration to nine during the meditation, or eight as charlie points out, depending on how you count. The increase is driven not by a conscious decision by anyone in the administration. Charlie says he cant pin point any decision by any official to pick up the tempo but its driven instead i improved Surveillance Technology which makes it easier to identify leakers. The prosecutors is basically on autopilot. Autopilot, a term that john kerry used to explain the continuing Surveillance Program that intercepted Angela Merkel cell phone conversations which obama of course said that he knew nothing about. The result is a policy of prosecution that has removed one last check on the prominent Security State by crippling Investigative Journalism in this country, a program that has preceded with a no decision to start it, no decision to continue it and, of course, no decision to stop it. Meanwhile, within the permanent Security State itself, officials operate under an incentive to push off costs and risks to their successors. It will enable quick responses to terrorist emergencies. Officials need to our aching because the blood will be on their hands in an attack occurs on their watch. We hear this over and over again in the book, who will do the risk of casualties . Whose hands will end up bloody . There are of course competing longterm risks. Theres a longterm risk in neutering the courts as independent guardians of freedom or there is a risk and particularly compiling watch lists, nofly list that can easily be deployed to deprive people of constitutionally protected rights, like the right to bear arms is was just recently proposed. They are our longterm risk in legitimating torture by allowing torture to go as unpunished. But within the prominent Security State, the payoff lies in meeting shortterm risks because the longterm price always debate on someone elses watch. Congress itself operates under some incentives as power wars power wars shows that no legislature wants to risk being that they did for reelection because he ignored a recommendation of the prominent Security State. Its emphasis on military and Intelligence Solutions over diplomatic or Political Solutions saturates the legislative process. Legislators are contemptible a ceremonial role to avoid hard National Security decisions that may come back to haunt them. Congress stands sheepishly by while obamas lawyers present an argument for the legality of the war against isis, an argument based on a 14 year old aumf that authorized a different war for a different purpose against a different enemy. An argument that the New York Times has rightly labeled preposterous. Congress leading Intelligence Oversight Committee, meanwhile, recent report on torture that leaves out any mention of illegality or personal accountability and makes no recommendations whatsoever for any sort of reform. It identifies 9400 documents relevant to its inquiry, writes three letters to the white house requesting those documents, gets no response and then simply drops the request. No subpoena, nothing. The Committee Takes no depositions. It conducts no interviews. Even from victims who have to testify. Treaty obligations out with danny, obama makes no effort to bring any other torturers to justice, even those whose barbarous conduct exceeded the extravagant guidelines. The only person to be punished in connection with its torture program, so far as i can tell, is a cia official who first openly discussed in a 2007 interview with abc news. The judiciary, charlie points out, is repeatedly urged by obamas lawyers to steer clear of these managed and, of course, it does so. Of response to his lawyers arguments and the courts elect to play no role either before or after drone strike in reviewing a decision to kill american citizens deemed to be terrorists overseas, even away from hot battlefield. The courts proceed to dismiss case after case following the administrations urging on the basis of the state secrets privilege, lack of standing, or of the claims of nonjudicious ability its difficult in fact identify a single case in which any plaintiff who has suffered even most grievous injury as a result of the bush obama counterterrorism policies has been awarded a day in court, let alone the case in which any plaintiff has been awarded a time in damages. In the realm of power wars obama attacks libya with no fidelity to the constitutional principle that he himself identified in the boston globe in response to charlies question absent any threat against the United States without congressional approval, then obama sidesteps the war powers resolution 60ton limit with a quote legally available interpretation. Not logical interpretation, not the traditional interpretation, not the best or most widely accepted interpretation, but an available interpretation that the head of the office of Legal Counsel in the Justice Department rejects and the pentagons general counsel rejects in which barely passes the laugh test. But he gets away with it, as charlie rightly points out, because of the conflict against terrorism both legal theory is malleable. Matters of National Security a line and separates policy and politics from law has grown blurry, unquote. I would add that obama gets away with it as power wars illustrates he goes his lawyers have done all they can to make the law more malleable. Been roads, tapping ashes could advise, brushes aside the new ticket congressional approval to attack at six. Quote, its easy to get lawyers to do clever workings. Used to tell charlie, and we could always point to kosovo, unquote. Is, it brings to mind Madeleine Albright responds to robert short when the British Foreign secretary told her that his lawyers had legal problems involving kosovo. Robin, she replied, get new lawyers. Well, obama got new lawyers, much more clever than the old bush lawyers with their theory that the president is an elected king who can violate the law with integrity merely by reciting the magic jingle commanderinchief. Obamas new lawyers never need to say that. They were always have the come up with a more refined alternative theory for reaching the same result. Yet the curtain that sometimes get pulled back as it was in the jerusalem passport case. Thethere, obamas lawyers citede infamous inherent powers case 10 times relying upon what the Supreme Court described as quote unbounded power, unquote. Charlie describes the circular logic of bushs old lawyers quote a president has done a certain thing space on those theories, and because he has done those those theories must be true, unquote. If the logic of obamas new lawyers is less secure than the logic of bushs old lawyers, the question raised in power wars is why that should matter, given the new lawyers conclusions in shaping this ever malleable law are almost always the same. The rebuttal of obamas defenders is curious. As charlie has mentioned, some of obamas lawyers who had earlier criticized bushs nasa Security Policies before Obama Took Office now insists that the real criticism of bushs policies is based not on Civil Liberties concerns but on rule of law concerns. They contain as charlie points out, they never really objected to the substance of bush policies at issue, such as bulk surveillance but only to the process by which those policies were implemented. Such as lack of congressional approval. Their real objective in the Obama Administration they suggested simply to restore rule of law more respectful a process. Its an interesting attempt at distinction but i think its gotten through difficulty. First, its, understood the concept of the rule of law is not that narrow. As most people use the term, will outlaw is not limited merely to process and procedure. It includes at least minimal elements of liberty. Most people would not regard a nation as governed by the law if it consistently abridged the fundamental freedoms of its citizens, even if it did that regulate with dotted eyes and crossing ts. It was there to believe when senator obama and his people criticize oshas policies that they shared this broader popular conception with the rule of law is protecting both process and liberty. Second, many of the policies that bushs critics earlier objected to that obama has continued are, in fact, purely procedural. They have no substantive dimension. The procedure is the substance. Consider in this regard the state secrets privilege, prosecuting whistleblowers, resisting meaningful congressional oversight, using signing statements to bypass the intent of congress, withholding documents under executive privilege, and classifying purely legal analysis. I suspect most critics of those bush policies did not regard the interests those policies abridged simply as Civil Liberties addons that are extraneous to the rule of law. Know, they regarded those interests as encompassed either old law which they expect the president obama to honor. This brings us third to the bottom line question. As a practical matter, just how much bite does obamas rule of law actually have . In the end what will be seven pages really add up to . One would think 700 one would think that the rule of law means anything, at least on occasion it has to prevent Public Officials from doing something that they might otherwise be inclined to do. So the question is, what specific has the rule of law prevented the administration from doing . The astonishing answer to this question was provided by none other of john brennan speaking offthecuff at harvard and 2011. He said quote i have never found a case that our legal authorities or legal interpretations that came out of the Lawyers Group prevented us from doing something that we thought was in the best interest of the United States to do, unquote. Could that possibly be correct . Charlie in 2014 ben rhodes basically the same question, could h you think of any instane in which the Obama Administration had not done something that it wanted to do because the obama lawyers said that it would be illegal . He could think of only one example, the exultation of an iraqi prisoner without the iraqi governors consent. I myself read power wars with the same question in mind. I looked page after page for one additional instance in which is most lowly of american president was told no, you cant legally do something that you want to do. I could not find a single example. This sobering record seems to belie the claim of obamas defenders that they were merely misunderstood. Their idea of the rule of law turns out to be more in the nature of an adornment or decoration than a set of actual restraint, something added after the fact rather than a fixed existing framework within which policy is actually going. Of course, theres always the possibility given the number of lawyers doing these jobs in the Obama Administration that legal consideration somehow discipline of the internal dialogue and nudge policymakers to focus on legal constraints. Up to a point im sure thats true, but only up to a point. Let us remember richard nixon, john dean, john mitchell, John Ehrlichman and Charlie Colson all with lawyers. John dean said map21 lawyers were involved in watergate. If the Obama Administration is the most heavily lowered in history, the Nixon Administration is surely a close run. The watergate tapes do not seem to reveal an oval office in which the dialogue is distance by a dialogue to comply with rule of law. As a lawyer i will close by simply noting i understand that dynamic, all lawyers like to make their clients happy and obamas lawyers are no exception. Sometimes, however, although there simply has to be an abominable no man. You dont see many abominable no men leaping out of the pages of power wars. What does leapt out of the pages, to me at least, is the deep and enduring influence of the permanent Security State. Thank you. [applause] before we open it up to question, i was going to give charlie a chance to respond. Not to pile it on but ive never felt worse about going to law school and this morning. Just apple by one of michaels points, just to amplify in addition to the end run around office of Legal Counsel to continue the war in libya be on the war powers resolution was time limits, more broadly, the definition of the rule of law is hard to nail down when you look for it, you usually get a list of points. But when you do look for it, many of those lists include a failure to publicize. So with particular respect that is a section 215 program, yes, maybe it had been blessed by the Intelligence Committees and by the secret court and by the executive branch, but no one in the wider world knew that a federal human relations the database was being built on the basis of an interpretation of section 215 that consider all americans phone records relevant to authorize investigations of terrorism. Can really say that the rule of law, and youve spent quite a bit of time challenging in court the Obama Administration be more forthcoming not about sources, but its actual legal interpretations be on some of these things. Can we really say if the rule of law problem has been fixed or largely fixed when so much of this is going on behind closed doors and is not publicized . Okay, i have two of three things i want to say in response both to michael and now to gene. To start, its the latter. You know, this dichotomy the rule of law critic versus Civil Liberties critique, and thats not something that obama defenders have put forward to me. Thats kind of analysis. Its a model. Like all models it oversimplifies it in some respects. For example, the Fourth Amendment is a law. A higher law that protects privacy and individual rights in a substantive way. So something a violates the Fourth Amendment but not a statute be okay with rule of law . Of course under its just a way of thinking about or helping people think about how acting like a bush might mean Different Things to different observers in a way that helps us understand that this connects between what obama has government and the expectations created by skipping record. That doesnt confuse or is not the endall be all. Thats the first thing i want to say. Secondly, its too far to say, a couple different ways i think there i want to make the case, although i agree generally with michael about the power of the deep state and a difficult that is, a bucket, i think thats a major explanatory force, i dont think its the only force and to think his portrait of a democratic system in which the e president s, the courts and congress are irrelevant at a bleak. No, to explain a little bit about why people when i talk about in the book, you know, complicates that. I also want to say in another way how he could have gone further. Let me march do this a couple of ways. There are other ways in which the administration hasnt done things it wanted to because it seemed to be illegal. The number one what is that guantanamo remains open. If congress had not passed a statute that bar to bring detainees on u. S. Soil, guantanamo wouldve been closed years ago. And if they hadnt been willing to violate our challenge that statute, although his signing statement in front of the podium rhetoric has become increasingly aggressive in that respect, in a swampy violated another provision of the transfer restrictions based on a bushlike command in chief overriding claims. Thats the only claim h they mae so far, but on the table is the question of whether the end of 2015, say after Hillary Clinton was elected, because it wouldnt make sense to it if marco rubio or someone like that was elected to send it back. He will simply order the military to put the remaining prisoners on a plane and fulfill its longstanding goal of closing gitmo before he leaves office. But to date he hasnt done that and i think the reason why he hasnt done that is explained by the law. I also think its oversimplistic to say that the law that dates outcomes in this sphere of National Security policymakpolicymak ing whether its a bright line answer and either yes, you can do or know you cant. Is totally obvious. One of the reasons this is so murky is because its extremely rare for there to be judicial precedent that gives you is clean, clear answer. Very often this realm, no one has standing to bring a lawsuit. Very few precedents to act as guideposts from the courts as opposed to internal executive branch, historical actions in the most. It may not, in fact, an image annually in fact not be clear what the answer is. There are several options are reasonable and on the wall, knock off the wall. It in that sphere you can still have rule of law mattering. Because the government that wants to think itself as something the rule of law and wants to publicly justify its actions both at home and abroad as consistent with the recognize mainstream understanding of what the law is will find that legal constraints, while not dictating outcomes are nevertheless a factor that shapes and disciplines deliberations about what the policy choice is going to be. And so military factors, diplomatic doctors and political factors are equally important but its, what is the Legal Authority for this . How are we going to say this is justified . And push away from a choice that would be very difficult to justify legally, and toward a choice that is consistent with most people understand that the law. Doesnt mean it doesnt have breakdown like olivia situation. Generally that means you dont have a lot of situations where they wanted to do x. And the lawyer said it couldnt be done because every discussion of what the Legal Authority to his student them away from the first place and towards another place. Thats another way in which the world is more complicated than some of the critique we heard a minute ago. Heres what i think since 9 11 and after 9 11 the Bush Administration and congress transformed the National Security barack is a. Created a department of homeland security. It created an office of the director of national intelligence. It created within the Justice Department and National Security vision and so forth. This has literally meant that the national steadystate has more seats around the table when these things are being discussed than it used to have. Our voices now whose job is to represent the security interests among other competing values and parties and they will be louder in a meeting because theres more of them because theres more institutional role for them to fill. That makes things harder and especially makes things harder to change something the Security State would not want to do, if you have the governing process that values consensus and fully ventilating issues among all interested parties and rigorously adhering to profit. That has been the Obama Administration with very rare exceptions. Thats part of their the fact very rarely spills over to things what is involved, what is the answer to this legal question. They value this process and if someone somewhere disagrees with something, they dont go ahead, a bob litt up to the higher level and they think about it more. They can do what they want to do sometimes notwithstanding opposition. And so, in irony of the obama years they over learned the lessons of the bush years and connie rice writes in her memoir about how she was a National Security advisor and she didnt even know military commissions run the table until cheney had put in front of bushs space and learned about it from the media and theyre not going to have a dysfunctional backplate that. Tom donnellan one of the most important National Security advisers and a lawyer not coincidentally to liberally design the process for everyone to be consulted in the extra seats at the table would have a chance to assert the so power in the short term and theres always someone who asserts the veto. Should we let this person out of guantanamo . Nine people in the room say yes. One person says no and the person stays in guantanamo for the time being. Should we really memo that explains their secret interpretation of the patriot act or what the scope and limits of authority is to kill american citizens in a place like yemen who we think are terrorists and havent been tried. That is a decision by this president him and him him him him him him him him him a route through democratic opposition is a counter example, that does clarify a lot. In an effort to continue the clarification, let me say three things. Certainly, i do not in the National Security and government trying to make a case for support to believe that what i called the truman asked network of permanent Security Status as charlie refers to always get this way and it always trump the elected representatives of the people in congress and the presidency and their appointees on the course. No, quite the contrary. I just will add a footnote at this point. Double government is a term used by Walter Padgett and in 1867 book describing the theory that explains the operation of the english constitution and the theory is very dignified and to two shins to generate legitimacy in the part of the public through the monarchy in the house of the which the english people believe actually engage in governance. But the actual governance is carried out behind the scenes set of institutions that the Prime Minister in the cabinet. So this bifurcated system of double government has arisen in which the socalled efficient institution actually run the show, but legitimacy is generated by the institutions that exist largely for public consumption. My suggestion in the book is that our dignified and additions that exist largely for public consumption or the presence had become the presidency and the congress and the court. It is not that they are irrelevant. Quite the contrary. This theory would not work they would not generate legitimacy if they never controlled any decision. Of course you have to have examples. It is rather like playing poker with a dealer who is using a marked deck. If you never win a hand, if the dealer always went to look it up and walk away from the table. The point of double government is sometimes the course winds and sometimes the president wins and sometimes the congress wins. Sometimes the military intelligence agencies to get trumped by those institutions. But the bottom line is this system is rate. As my senator repeatedly says. My final point i guess to be a question, charlie. Just to clarify, i certainly would be the last person to suggest that National Security law is a regime that is filled with ripe mangoes. Quite the opposite. I made the point repeatedly with the international rules, the love or governing drone strikes and cyberwar, for example appeared just as charlie described in a state of flux there worried an extremely malleable. That does not mean, however, after a not so bright bright line rules in other areas. Youve got a look at this. One issue at a time. Its very difficult to generalize in this regard. I think it isnt sharp teeth. Take a look at the war powers. Charlie asked barack obama as a candidate a question. When do you think the president could use armed force without congressional approval and obama gave a very specific and i daresay the right financier. My question to charlie is do you think the answer was wrong . Do you think that is not the law as he states it . To flesh out the question, and in 2007 survey i conducted a wouldbe president at iowa and New Hampshire and executive power issues. One i asked was under what circumstances it and it was the president having the Constitutional Authority to bomb another question as an imminent threat to the United States or fire congressional authorization. The big issue at the time as bush and cheney were Bombing Iran Nuclear Facilities and obama said the constitution does not give the president the authority to attack another country prior congressional authorization. March 2009, the arab spring protests break out across the middle east and quickly the governments of egypt and tunisia fall, the samish between libya, gadhafi does not want to fall and starts pushing back against the protest movement in benghazi. The gates of benghazi and he is threat to to go and send everybody out and go house by house. This was happening. The senate had voted unanimously for a resolution saying we should apply impose a nofly zone, but everything was sorted by name and wasnt going to move and suddenly the u. N. Security council authorizes an air war to protect civilians which takes care of the International Law problem. Nato springs into action to impose a nofly zone of pushes forces back from benghazi. The question is can the United States, the domestic law question is who gets to decide whether the United States will participate in that in your vegan . Obamas answer was to sit just just upon this answer from 2007 a vote from congress was whether or not gadhafi is not an imminent threat to the United States as bob gates, secretary of defense more or less does. We couldnt do it. This is one of the places where i think the constraints on how things have been included the deep state, but they also include technological change and political realities and congress, both congress has the maxtor and congress has a dysfunctional nonactor. This is the moment right after the tea party Midterm Election republicans retake the house but the Republican Party is divided between mainstream republicans and the 50 member Tea Party Caucus who want to shut down the government and obama does not agree to provoke obamacare which is not going to do obviously. There is this huge you may remember this is the moment of one crisis after another. The government will shut down now and go for two weeks to keep it open. Women on the horizon as the debt ceiling. Speaker boehner is striking a deal that is on Tea Party Caucus will not go along with so his first allied democratic is to keep them open and theres this bitterness and vitriol and everyone is going home after two of these fights in a row for a scheduled recess in the political reality is even if obama were to come to congress and safely authorize force in libya, they were not in a position to vote on anything, even though they approved this and congressional leaders of both parties go ahead and do it. That raises for obama a dilemma. This case the dilemma was stick to his prior state of constitutional principles. And all these people get slaughtered or save those people that violate those principles and he decides to violate his principles and intervene in libya. Although of course libya then becomes a complete mess, the sort of been slower motion. And that comes back to congress when they come back and the question is a simple more Abraham Lincoln wasnt strictly legal that they could retroactively fix the problem by voting for it. They dont. Before then they have three different options to end the war, authorize the war, vote to authorize support to our nato allies like surveillance and refueling and directly attacking gadhafi forces. The congress split three ways and all three fail. And so, it is completely and part of what this demonstrates is the complexity of the war powers resolution. The crucial moment for understanding his evolution. Up until that point, the soil had been bush and cheney. He could be president without being the guy who sat on commanderinchief and congress doesnt matter and i can do whatever i want and the law is a nice city. The foil starting in 2011 begins to shift to the Republican Tea Party house and is he going to be able to do what he wants to do and is the government going to function at all . What is responsibility went from his Perspective Congress is dysfunctional and not performing the assigned role as part of the separated power situation. Do you let the world earned or do you start taking more and more aggressive unilateral executive actions. For the most part if hes gotten more and more aggressive in that sphere, its unfolded into the domestic policies here. No child left behind waivers and so forth and addressee is that environmental regulations to deal with Climate Change issues. But it begins, i believe that the libya situation because of the president goes to congress and says i need the authority to enact the congress to vote on now, it takes away his power. As the president asserts that he has the authority to act and challenge congress essentially to repudiate him, the same dysfunction prevents congress from interacting in any way and serves to enhance power because not react to them in the been made announced to acquiescence. I think he learned to the situation that he can govern and a messier way in a messier world through executive action and now grows us forward. A lot of that is very different than the question of whether the National Security state was the one the secretary of defense bob gates living embodiment bush is a secretary of defense and obama secretary of defense and cia director as well opposes the intervention. The white house wanted to do it so we did. I would like to get to senator questions. We have about 10 minutes for questions. It is the new year, so resolve not to be that kind of washington character who gives a speech that doesnt end in a question mark. Please do keep your questions short and make sure that they advocate . Pure and raise your hand. I will call on you and wait for the microphone to be brought around. Steger affiliation of that matters and ask a question. Back there. Wait for the microphone. A question for mike lennon. I like very much the focus on incentives that you built your analysis around to a great extent. Specifically the incentive to put off to future administrations, the cost of the consequences of certain decisions. I wonder if there is also an even more important incentive built into the dynamic of the National Security state, which is that in every National Security decision, every policy decision there are winners and losers. Obviously every time the United States goes to war there are people who win in various ways and there are losers in the process in this country. I would like to ask you for your view on how that incentive fits into the dynamic power of the National Security state and the way decisions are made in the process. That is the difficult and a profound question. Let me answer it this way. I think it would be easy for a reader Reading Power wars to fall into what i will refer to as the event fallacy. The fallacy flowing from the famous comment of Harold Macmillan when he was asked what drives reddish foreign policy. He said events, dear boy, events. It is easy to think when you read power wars because it is a vividly told an admirably told from the tip of an insider that as a policy maker, there are whispers binding to the prior event and there are no Tectonic Forces or background conditions that may cause one to weigh the costs and benefits and identify the winners and losers and each decision and simply reacting as a rational, sensible policymaker to the preceding events. Events are the ocean that policymakers swim in. There are these deeper Tectonic Forces and background conditions as there were in the case of British Foreign policy. I mean, britain historically has sought to prevent the rise of Hostile Economic power and tried to maintain friendly relations with the United States. It is not simply events, just as it was not simply the event of the underwear bomber that everybody in power wars scissors wanting to. There are winners and losers in all of these decisions as you rightly point out and away policymakers come down in each cases influence not you know cause slave by any set of background conditions or historical drivers such as permanent Security State, but those sources are present and it would therefore be a mistake to think that you look at each decision solely and exclusively on its merits and decide winners and losers without regard to those background conditions. Thats not the way policy is driven. Yes, sir. Blue sweater. I am max rosenthal. This question is most way for charlie. I am just curious at the end up having read this book, and current conditions, do you believe that oversight or government control of National Security state as possible and if yes, what does that require and if no, what should the response either by the public apprised of the government not involved in the deep state of the call, what should their response be . I think we have lived through a couple of case studies that cut both ways. Starting with congressional oversight, in his opening remarks, the Intelligence Committee and the agency capture problem, but he was also very critical of the Senate Torture report. I have a different view of that report. I think in the realm of post9 11 surveillance, the Intelligence Committee was clearly not adversarial oversight and searching and rigorously questioning whether this step is necessary and whether it is true if it is legitimately based in the text of the patriot act. By supporting the cia, makes it impossible to that. Is that clear for all of his true what that was . Will. As far as Going Forward you know, know, earthlink or two at the bottom of the executive branch ordering and what you do when you have employers who work for a president or appointed by the president who are deliberating in secret in a place where the rules are blurry and all this pressure to come up the expedience theory that makes the bossy things that are necessary. Not just his way and then the people based on decisions and keep you in that environment will never come before court because we dont hear these cases were ever ready doctrinal reasons. Can they really be the rule of law in checks and balances and substantive matter in that environment and what is the solution . When he talks to her about the resolutions that i do, too, Bruce Ackerman suggested the department of an independent judicial supreme executive tribunal of life tenure to send and. No one who has worked in government thinks that remotely is pragmatic. That would work. It is in terms of these things happening all the time and a lot of discussions are fluid between mott and policy. Theres not a place for everything stops and we will see what the courts as next month when they get around to it. That is not how governance functions as a realworld matter. The problem is it doesnt seem to be a satisfying solution. To ackermans credit he came up with an idea and put it out there. So the best ive been able to come up with this transparency. The check of Public Opinion and whether it is hey were back to a rehydrating people, is that what we as a country are all about or whether it is this interpretation of the patriot act that i want things as laughably wrong once it is dragged into public light. Or here is the dilemma and people say that is a hard choice, but that is what is necessary is a standards. In the to be in public view because people making the decisions want to be respect by their peers. They are going to go back to the private sector and be standing for an election or whatever. The best i can come up with is less secrecy and sort of informal blurry checks, the absence of hard checks. I think that is all we have time for. If we are going to end at 1 30, i want to invite you to join us upstairs for lunch on the second level of the george and or Conference Center at the spiral staircase. These two gentlemen will be selling and signing their books. I have read them both. I recommend them both as highly as i possibly can. Both terrific books. Please join us upstairs. Thank you for being with us. [inaudible conversations] here is trying to shut down were purged out of north korea tomorrow because they provide 40 of the food and fuel for that country and it is they baffled state essentially. But they dont do that. To me, what north korea represents most is something that Michael Ohanlon shared with me from the Brookings Institution and the interview appeared this is the distraction weve had from the middle east. On the eve of 9 11, the Bush Administration was actually aware of a riot in china pay the name back then. As soon as 9 11 hit, that was over. In 2003, while the Bush Administration was preparing to invade iraq, what did north korea do . This spirited 18,000 out of the civilian reactor which we have been acting and they agreed not to do. A centrifuge that and got that reactive material to places we can now no longer find. That was the day because we were in the middle east. That was the day we became a nuclear power. Its taken over 10 years for them to get where they are. But they are going to get even further. I had to hurt they are going to get pretty good in seattle with a nuke. I said yeah, but nothing we can do about that point. So north korea is very much its 1. 3 square miles of territory. No problem. It is also 200 miles of an exclusive Economic Zone and a concentric circle. It is resources, but its also on the flank of taiwan and china is able to grab that and turn it into one of these, then it creates vulnerabilities for japan. So we party thing would have been to mass riot. Creeping national is going crazy, talking about going to war with japan. That is a flashpoint. Swing around to the south china sea. Most of you are familiar with that claim that began in 1947 when basically its called the cows tongue because that is what it looks like, to 80 of the south china sea. Worship as they are now as we usurp been around some of these were china is trying to turn territories would have up one. Check robin 1 Million People who are right now really depressed and afraid for two reasons. One of the china slowing just like a pipe on and circling around. Sales of u. S. Which may no longer have the resolve to stand with taiwan. I interviewed one professor, Charles Glazer who actually proposed agreement argun, basically trade taiwan for pieces everywhere else. Fortunately, everybody else i talked to didnt think that was such a good idea. But i think it does reflect the fact that if push comes to shove we might not have American Forces standing up for taiwan like bill clinton did in 1996 or eisenhower did several times in the 50s