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Barack Obama, Lawyer-in-Chief

<p>In June 2013, when a cascade of leaked top-secret documents showed the world that Barack Obama had entrenched the post-9/11 surveillance state bequeathed to him by George W. Bush, many observers were surprised. But several of Obama’s advisers thought back to an afternoon some 4&frac12; years earlier, shortly after their administration took office. An important meeting with Obama was scheduled to begin in the Situation Room at half past noon on Friday, February 6, 2009. Officials who had been asked to participate gathered around the conference table waiting to brief the new president. He was late. </p><p>The officials were there to tell Obama about secret surveillance programs—including the fact that the National Security Agency was collecting Americans’ domestic phone records in bulk. The meeting and its aftermath helped establish a pattern for Obama’s presidency that has confounded many of his supporters. The liberal-minded legal scholar promised change from Bush’s “global war on terrorism,” but he ended up entrenching many Bush-like counterterrorism policies: drone strikes, military commissions, detaining Guant&aacute;namo prisoners without trial—and broad surveillance activities, including the NSA’s bulk phone records program. How did this seeming transformation happen? Obama’s approach to the bulk records program—driven, above all, by his inclinations as a lawyer—is key to deciphering the larger mystery.<b> </b> </p><p>When Obama reached the Situation Room, his jaws were working a piece of nicotine gum. The risk and potential consequences of a terrorist attack were likely at the forefront of his mind. Former Vice President Dick Cheney had just <a href=”http://www.politico.com/story/2009/02/cheney-warns-of-new-attacks-018390″ target=”_blank”>publicly criticized</a> Obama’s early decision to close CIA black site interrogation prisons, saying the new president was making it more likely that Al Qaeda would succeed in killing Americans. And later that day, Obama was scheduled to meet with relatives of victims of 9/11 who were upset that he had paused military commission trials while he reviewed the tribunal’s policy. </p><p>Now, Obama went around the table shaking hands with everyone who had been waiting for him. Many were holdovers from the Bush years, such as the directors of the NSA and the FBI, Keith Alexander and Robert Mueller, and the agencies’ top lawyers. Obama sat at the head of the table, with the new attorney general, Eric Holder, on his right, and the new White House counsel, Greg Craig, on his left. Mary DeRosa, the new top lawyer for the National Security Council, had organized the meeting. Because she had previously been an intelligence staffer on the Senate Judiciary Committee, she was one of the few Obama political appointees who already knew about the surveillance programs, and she believed it was urgent that the new president understand what he had just inherited. </p><p>Benjamin Powell, the holdover general counsel for the Office of the Director of National Intelligence, did most of the talking, with Alexander and Matt Olsen, a career intelligence lawyer then serving as the acting head of the Justice Department’s National Security Division, jumping in to expand on certain points. Passing around handouts labeled “Top Secret,” he described NSA surveillance and data-collection activities Bush had instituted after 9/11, code-named Stellarwind. </p><p>Obama already knew about the warrantless surveillance program, whose existence Bush had declassified after the <i>New York Times</i> <a href=”http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html” target=”_blank”>revealed</a> it. In one of his last votes as a senator, the previous summer, Obama had voted for a law, the FISA Amendments Act, that legalized it. Now, he learned about additional activities that the Bush administration had never declassified. Among them, the NSA had also been systematically collecting Americans’ domestic metadata—both phone and email records showing who contacted whom. Each day, in response to secret court orders, major phone companies were turning over fresh batches of their customers’ calling records, and devices implanted on Internet backbone routers were harvesting header information from emails as they flowed past. The agency used the data to analyze social links between people in search of hidden associates of known terrorism suspects. But whereas the warrantless wiretapping had targeted specific individuals for whom there was some reason to suspect of terrorism, these still-secret programs involved dragnet data collection about <i>everybody</i>. </p><p>Powell emphasized that the programs were rooted in an interpretation of a statute that judges on the Foreign Intelligence Surveillance Court, or FISA Court, had approved. The congressional intelligence oversight committees knew about them too, so all three branches were on board, he said. Moreover, the FISA Court had imposed strict back-end rules limiting access to the data to mitigate the front-end privacy invasion. </p><p>But there was a complication. Just days before Obama’s inauguration, the Justice Department had learned that the NSA was accessing a data in a way that fell short of the very limited standard the court order imposed. Olsen had told Judge Reggie Walton of the FISA Court about the discovery, and in a classified ruling on January 28, Walton said he was “exceptionally concerned about what appears to be a flagrant violation” of the court’s orders. He demanded to know by February 17 why he should not refer those officials, including senior NSA executives, for criminal charges and shut the bulk phone records collection down. </p><p>This was a pivotal moment. Spurred by the judge’s concerns, the new president could have ended the government’s dragnet collection of Americans’ data the instant he learned about its existence. </p><p>The degree to which Obama understood that the security state was implicitly asking him to decide whether to keep or jettison the program is unclear. Powell and the other briefers never explicitly teed up the question as a choice for Obama to make. In the same breath that they disclosed the problem, they explained that they were already fixing it. They stressed that there was no evidence of deliberate abuse. And Alexander and other officials at the meeting emphasized that the program was a critical tool for protecting against terrorist attacks, one that would have prevented 9/11 had it been in place earlier—a claim that would face sharp scrutiny after the program came to light in 2013. </p><p>Obama pointed to Holder on his right and Craig on his left. </p><p><i>I’m comfortable with what you’re telling me, but I want my lawyers to take a look, he said. </i></p><p>Craig and Holder did so, and were satisfied that the program did not appear to be “rogue,” as Craig later put it to me. He and Holder were already busy with other, public controversies that put them at odds with the national security bureaucracy, including battles over what to do about Guant&aacute;namo and the legacy of the CIA’s torture program. Moreover, Craig was a former public defender and Holder was a former prosecutor, so both were well aware that in 1979, the Supreme Court had ruled that Fourth Amendment privacy rights do not cover logs of phone calls. While that case involved phone records of one criminal suspect—not everyone in the country—the legal reasoning behind the precedent did not turn on the volume of the calling data in question. Craig recalled thinking that the constitutional issues “had been settled by the Supreme Court years ago” and that “there had been progress made in the introduction of court supervision,” which he felt to be of “singular importance.” </p><p>To the Obama team, the issue was how to get the phone records program to work within the court’s rules, not whether to shut the program down. “It appeared to be a problem of compliance, not a problem of philosophy or principles,” Craig said. “It was something for DOJ to take care of.” </p><p class=”cms-textAlign-center”>*** </p><p><b>This way of evaluating whether</b> there was a problem with the bulk phone records program—asking whether there was a legal basis for it, where others might instead have asked whether it violated privacy and civil liberties—is emblematic of the Obama administration’s approach to post-9/11 national security policies. If the Bush administration was caricaturized as government by cowboy—including its Wild West attitude toward legal constraints—Obama’s presidency has been government by lawyer, and his record cannot be seen clearly without a legal lens. </p><br><p>The contrast starts with personnel. Both Bush and Cheney were CEOs by background, and placed few lawyers in national security policymaking roles. Both Obama and Vice President Joe Biden were lawyers by background, and surrounded themselves with fellow law school graduates. To name one of many examples, both of Obama’s secretaries of state, Hillary Clinton and John Kerry, are lawyers, unlike both of Bush’s—Colin Powell and Condoleezza Rice. </p><p>That contrast spilled over into the way each administration handled matters of national security. Especially in its first term, the Bush administration relied on a handful of lawyers who embraced an idiosyncratic view of the Constitution by which the president, as commander in chief, was free to disregard statutory and treaty constraints—an interpretation that foreclosed much need to engage with the legal weeds of any particular issue. By contrast, the Obama legal team—many of whom had sharply criticized the Bush administration’s theory of executive power as an overreach—shied away from invoking claims of commander-in-chief power. Seeking to show that the United States could fight a war against Al Qaeda within a recognizable framework of domestic and international law, they designed an NSC decision-making process that vetted every issue through an elite interagency lawyers group. As a result, even if the law did not dictate every policy decision—taking its place as one factor alongside others, like military, diplomatic and political concerns—it shaped and disciplined how they thought about problems. </p><p>“We never had a meeting that didn’t include the legal adviser to the National Security Council or her assistant,” Tom Donilon, a lawyer who served as Obama’s national security adviser, told me. “My own training as a lawyer was essential to my ability to function as national security adviser because the legal issues were so pervasive and because the president and the vice president were lawyers and addressed these legal issues rigorously.” </p><p>And Lisa Monaco, a lawyer who served as Obama’s top counterterrorism adviser in his second term, told me that she had observed even the non-attorneys picking up a lawyerly approach to policy discussions. “They search for precedent, articulate policy in terms of frameworks,” she said. “You end up having operators who never went to law school, but the legal issues keep recurring and so they get used to them and even raise them themselves.” </p><p>Lawyers are also trained to grapple with the best arguments of the other side and to value rigorous adherence to process. Bush and Cheney could move fast, and sometimes trampled bureaucratic procedures, suppressing or circumventing interagency perspectives that might have slowed things down on questions like whether to create military commissions. By contrast, the Obama administration sought to ventilate fully every issue among agencies that had a stake in the matter. It moved forward with a proposal only when there was consensus among them, or else it bumped disputes to a higher level for further discussion. </p><p>This lawyerly approach to government had some surprising consequences for civil libertarians who were critics of the policies Bush put in place after 9/11 and who hoped Obama would be more assertive in rolling them back. </p><p>First, in practice, the Obama team’s careful, deliberative decision-making style threw up roadblocks to altering the new status quo Bush had created. It empowered skeptics, especially in the military and intelligence bureaucracies, to impede changing things—like proposals to transfer particular detainees out of the Guant&aacute;namo Bay prison. Had the Obama team in 2009 and 2010 been willing to act more like its predecessor, steamrolling internal opposition, it would have succeeded in closing Gitmo years ago. And had it embraced the Bush team’s ideological view of commander-in-chief powers, the Obama team would never have stood for Congress’ imposition of statutory limits on his authority to move or transfer wartime prisoners. </p><p>Moreover, the Obama team’s lawyerly mind-set sometimes led it to conclude that the problems with the Bush-era policies had already been fixed. During the Bush administration, Democrats (and some conservative skeptics) had offered two different critiques of the government’s post-9/11 policies. There was a civil liberties critique, which said that programs like warrantless surveillance and military commissions were inherently wrong as a matter of individual rights. And there was a rule-of-law critique, which said that Bush should not have violated statutes to establish these programs. Lawyers, naturally, gravitated toward the latter evaluation. This mattered because in Bush’s second term, his administration, working with Congress and the intelligence court, placed many of his programs on a stronger legal basis. As a result, by the time Obama took office, many of the rule-of-law problems with the Bush policies had melted away, even if civil libertarians still saw a problem with them. </p><p>That brings us back to the February 2009 meetings. Satisfied that the bulk phone records program had a legal basis, the Obama administration left it in place. And so on February 17, the Justice Department’s Olsen and the NSA’s Alexander filed court papers urging Judge Walton not to shut down the program. The NSA was fixing the problems, they said, and launching an end-to-end review to find and fix any others. </p><p>Soon afterward, Holder reassigned Olsen to lead a review of Guant&aacute;namo detainees and named Todd Hinnen, who had been Biden’s chief counsel in the Senate, as the new acting head of the National Security Division. Throughout February and March, knocks on Hinnen’s door brought fresh news of problems uncovered by the review. </p><p>The administration dealt with each in turn, with the lawyerly approach of adding new layers of internal oversight and auditing to make sure the program complied with the court’s rules. And so the program stayed in operation, concealed until Edward Snowden leaked its existence in June 2013. The revelation set off a bipartisan uproar—and the sharpest criticism yet that Obama had been acting like Bush. Even as Obama embraced the USA Freedom Act, legislation requiring the NSA to stop collecting and storing Americans’ domestic phone records in bulk by the end of this month, he explained that he had not shut down the program because he had seen no sign that the NSA had sought to violate the law. For the most lawyerly of administrations, that had been the paramount question. </p><p>“It’s very hard to walk away from what has been determined to be a lawful intelligence tool that the intelligence community says is crucial to national security,” Hinnen told me, looking back at the 2009 episode. “At the end of the day, the job was not to decide what the intelligence community needed. Our job was to help them bring the tool they said they needed up to conform with the rule of law.”<br /></p><br>

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