Dawn Johnsen on “The Lawyers’ War”: A Quick Take

Dawn Johnsen has a new essay in Foreign Affairs defending the Obama administration’s national security law legacy and drawing lessons for constraining the incoming Trump administration. A review of two books—Charlie Savage’s Power Wars: Inside Obama’s Post-9/11 Presidency, and Karen Greenberg’s Rogue Justice: The Making of the Security State—Dawn’s essay is the latest contribution to a long-running debate about whether Obama’s counter-terrorism law is better viewed as a continuation of or a sharp break from Bush’s.

Dawn takes the latter view, and a central focus of her piece is the application of Justice Jackson’s Youngstown/Steel Seizure three-category framework, from the Supreme Court’s rejection of President Truman’s asserted power to seize steel mills during the Korean War. Whereas, she argues, the Bush Administration’s legacy is marked by commitment to expansive interpretation and use of Zone 3 (presidential action contrary to statute), the Obama Administration’s is marked by commitment to reliance on Zone 1 (presidential action authorized by Congress) or Zone 2 (presidential action amid congressional inaction or silence). Dawn says that Obama critics tend to miss this “stark … difference … between Bush’s and Obama’s approach to the rule of law.”

There is much I agree with in Dawn’s essay (including Obama reforms I applaud and Bush mistakes I condemn), but here I’d make a few brief observations as to why I continue to believe that continuities outweigh breaks between the administrations and why I’d caution against celebrating the Obama Administration’s Zone 1 commitments.

First, Dawn’s account overstates the degree to which the Bush Administration actually relied on Zone 3 arguments in practice. Early Bush Administration OLC memos often voiced these arguments very strongly, but as far as I’m aware they almost always did so in the alternative, noting also that congressional statutes (including the AUMF) should be read to support the president’s actions. More important, the early Bush Administration’s broadest Zone 3 arguments were discarded midway through the Bush Administration. Jack Goldsmith runs through much of this evolution in the detention context here, and Dawn notes in her essay that the most problematic Justice Department memos were withdrawn during the Bush years by Bush lawyers.

It’s true that some Bush officials may have strongly opposed this evolution and might have preferred to operate in Zone 3—if they could have had their way—and presidential signing statements or statements opposing proposed legislation often continued to include expansive language about preclusive presidential powers (see pp. 1094-97 of David Barron & Marty Lederman’s Harvard Law Review articles on Zone 3). But in practice all three branches of government played a role in pushing back against the Bush Administration’s early and most expansive Category 3 legal arguments (the media and pressure from actors outside the U.S. government also played important roles), in addition to the policies or practices based on them. By the end of the Bush administration, I’m not aware of any counter-terrorism actions that were being carried out and justified under Zone 3 (if I’m missing some, I welcome being corrected on this point). By then many of Bush’s revised counter-terrorism policies were on much stronger legislative footing. From the point when Obama takes over in 2009, I therefore see more continuity than Dawn does.

I also think Dawn’s essay understates some of the dangers of Obama’s Zone 1 and Zone 2 legacy, where checks don’t always operate so robustly. As Jack and I have argued, the Obama Administration has adopted very expansive interpretations of war powers and the President’s authority to use military force, both as a matter of unilateral constitutional interpretation and statutory interpretation. For example, during the Libya intervention the Obama administration declined to argue that the War Powers Resolution’s 60-day clock was unconstitutional, but it adopted the very controversial interpretation that the intervention did not constitute “hostilities” that would trigger the clock (Dawn criticizes this interpretation, but commends it over alternatives). Obama has also waged a major war against ISIS across multiple countries on the basis of a very stretched interpretation of the 2001 AUMF.

All of these interpretations were adopted in contexts where any judicial review was unlikely. And whereas the early Bush Administration legal views that Dawn finds most problematic were (appropriately) discredited, not passed on, the Obama Administration’s unilateralist interpretations will likely carry particular weight going forward because they were advanced by a constitutional lawyer-President and a legal team that is not identified with executive imperialism.

These statutory interpretations may be, in a phrase one often hears now in relation to Obama interpretations, “legally available.” And I readily admit that if I were in Obama Administration lawyers’ shoes I might well have recommended them, too. (For that matter, I’ve sometimes wondered whether some of the majority justices, including Jackson, would have regarded Truman’s steel plant seizures as “legally available” under the Labor Management Relations Act had they been Attorney General at the time). But, we should now recognize that these interpretations will be potent tools in the hands of the next presidents.

To be clear, I don’t agree with those who draw complete equivalence between Obama and Bush national security law; there are important differences, including the much greater clarity with which Obama addressed torture. And even if unexercised, overly expansive presidential claims of Zone 3 power may be dangerous and problematic. But, I continue to see the Obama reforms as more incremental than radical, and carrying risks of their own (I discuss some of them in my own review of Charlie’s book here). Whatever our disagreements on these points, I highly commend Dawn’s essay to Lawfare readers.