Liveblogging Session 7: Keynote Address of New York Times Reporter Charlie Savage
The Keynote Address begins with a brief introduction from Jack. He notes that one thing extraordinary about Savage is his ability to extract information from government officials and the clarity with which he can describe and discuss complicated legal issues. He then hands over the podium to Savage.
Savage begins by noting the slight awkwardness of his reporting on Brennan’s comments last night in which he denounced his article from earlier yesterday morning. Savage says that he figured out that there was a debate about the legal limits of the administration’s targeting authority.
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The Keynote Address begins with a brief introduction from Jack. He notes that one thing extraordinary about Savage is his ability to extract information from government officials and the clarity with which he can describe and discuss complicated legal issues. He then hands over the podium to Savage.
Savage begins by noting the slight awkwardness of his reporting on Brennan’s comments last night in which he denounced his article from earlier yesterday morning. Savage says that he figured out that there was a debate about the legal limits of the administration’s targeting authority. He notes that Jeh Johnson took one view–that anyone who has become co-belligerents with al Qaeda in Yemen or Somalia could be targeted. Koh, however, took another–he disagreed that it would be lawful to target low-level foot soldiers that had only parochial concerns. Until now, the policy of the government was to only strike high value individuals. But Savage notes that this policy could change.
Savage says that the best case he can make for Brennan’s position is that if the public knows about the debates, then there will be a chilling effect. He says he respects, but disagrees with Brennan. He thinks it’s important for the American people to know if we’re at war with a few dozen people in the Gulf of Aden or thousands.
Savage notes that executive branch lawyering has been of enormous importance in the post 9/11 world and that debates among those lawyers could the only discussion on the matter. Once something is deemed legally allowable, the bureaucratic impulse is to do it.
Savage says that in this conflict, legal interpretation is malleable. He sees his role as going forth into the world of government legal specialists, find out what they’re thinking, and then make that accessible to the average reader. He says there is a constant danger from editors to simplify too much in a way that would lose key nuances.
Savage wants to offer some broad model of what happened to executive power under the Bush administration and a model for understanding what’s happened during the Obama years.
Savage begins by discussing the Bush-McCain debates over the DTA in 2005. He sees this as the starting point, noting that the night Bush signed the bill, he added a signing statement saying that the bill would be interpreted as consistent with the President’s inherent power. Savage called the White House and asked what that meant. He spoke with a member of the White House Counsel’s office; the official, in effect, said that when push came to shove, the president could write his own rules. He saw Bush’s use of signing statements as a road map for deciphering Bush’s view of executive power; indeed, he used signing statements 2x as often as all previous presidents combined.
As Savage dug deeper, he says, he saw the signing statement story as the tip of the iceberg. Indeed, he saw Cheney as the force behind the expansion of presidential power at the expense of Congress. Savage says Cheney’s views on this date back to his time as Ford’s chief of staff; as Vice President, he could bring this view into practice. Indeed, Savage says that the White House Counsel’s office had had a goal of permanently expanding presidential authority, even before 9/11.
Savage continues, describing the various areas in which the Bush administration sought to expand presidential power. Indeed, he notes that the Administration was “in the business of creating precedents.” The officials would look at their options and choose the one that most expanded presidential power with the goal
of setting precedents for future presidents. If Bush did them, and got away with it, that would be the baseline for future presidents.
Savage notes that the Obama team has been loathe to cite them; but over time, it might be the case that a future president will be more removed and more willing to rely on Bush administration practice.
Over time, however, the Bush administration toned down this practice. Indeed, when Obama ran for the presidency he discussed how he would respect the rule of law as president in a way that Bush did not.
But by February 2009, it became clear that the Obama administration would not ratchet back some of the expansions made by the Bush administration. The Obama administration says that there are hugely substantive differences; it concedes that things might look similar, but it says it is not claiming that statutes or international law does not matter. Instead, Obama claims that he is relying on congressional authority, not the President’s inherent authority under the Constitution.
Indeed, Savage notes that Obama has allowed Congress to seizes operational control over detainees and even over prosecutorial discretion. This could be seen as a very weak exercise of presidential power.
Savage’s second point: the key to seeing what the Obama administration is doing is to understand that it is trying to show that you can fight the war on terror while respecting the rule of law. During the Bush administration there were two critiques: individual freedom and rule of law. When the rule of law concerns were settled, the civil libertarian concerns remained.
This mentality, Savage states, is the key to understanding the Obama administration’s view. Even though they’re all “rule of law guys,” there are still disagreements over how to interpret the law when it comes to the war on terror. Savage says there are two poles: one around Koh, one around Johnson. He notes the bureaucratic differences that shape their views.
Savage offers to two examples. The first is in the detention context and involves the Bensayah case. He describes how Koh saw Bensaya as the outer edge and the AUMF did not extend; he could not be detained. Johnson believed that the focus on the front-line was not appropriate. State and Defense exchanged memos for months and Justice was called to settle the dispute; but it ultimately punted, changing its interpretation of Bensayah’s role in al Qaeda.
The second example is the Libyan intervention and the debate over the War Powers Resolution. Savage notes how Obama used force in Libya without obtaining congressional authority. But Obama cited the imminence of the slaughter of citizens in Benghazi and UN support to justify the use of force; in addition, the administration suggested that this intervention did not constitute “war” in the constitutional sense.
Savage says that the head of OLC and Johnson argued that if United State was no longer firing missiles, it was not in hostilities. Koh and White House Counsel Bob Bauer disagreed, saying that the administration should not feel constrained by the WPR. In the end, Obama sided with Koh and Bauer, who argued that if
U.S. forces did not face a threat, then there were no “hostilities.” Many did not think this was plausible.
Savage explains the various drivers behind Koh’s decision to take this legal view, including his human rights background and the importance to the Libya intervention for Hillary Clinton, his boss as Secretary of State.
Savage says this this narrow view of “hostilities” is now executive branch precedent that could be used by a later administration to justify launching an air war without congressional authorization.
Savage says that we can see some changes in the Obama administration, especially during the past year when the Republicans had taken the House. Savage predicts more willingness on the part of Obama to act unilaterally. We saw this in the area of gay rights; in early 2011, the administration unilaterally stopped enforcing the DOMA. The Libya War Powers debate would be the second bullet point in this development.
Savage believes that internal debates must come into the public eye. He notes that the interpretations within the Executive Branch have driven policy for most of the decade. Only by knowing those debates can the American people make judgments on issues of policy and hold government accountable. National security policy deliberations belong on the front page now more than ever.
Prof. Blum poses a few questions to Savage, more related to media. Blum notes that in Jack’s forthcoming manuscript, he argues that there is no way to understand questions of presidential power without making note of other forces that serve as a check on presidential power, such as human rights organization or the media/the lack of secrecy. She says part of the problem is knowing whether this is right or wrong (i.e., whether it’s harder now to keep secrets). Another possibility is that the government today knows so much more, while the public thinks it knows more, in terms of percentages, it does not know that much. The question: does he have a good feel of the debate or is there more to know? Second, why do people in government talk to you and do you care why?
Savage says he’d like to know more. He says it takes a while to mosaic things together; but in the end, daily journalism requires you to move on an argument. He’s not confident at all that he has covered all the dimensions of the debate.
Blum asks what facts he’d like to know. Savage says he’d like to know more about the title 10 – title 50 debate in the realm of cyber. He says he’s heard chatter about it for 2-2 1/2 years, but he’s not sure why it’s so extraordinary.
When asked why people talk to him, Savage jokes that sources and methods have to be protected. He thinks he’s got a reputation for wanting to drill down and get to the core. He thinks that people like him and think he brings something to the table–he can serve in some ways as an interagency coordinator.
Next, Rick Pildes says that he finds it’s interesting how administrations and presidents get trapped by partisan arguments they think it’s necessary to make to get elected in the first place. For example, the insistence of the Bush administration to define itself as not Clinton. Pildes thinks that if we had remained in a routine world, some exertions would not have become big issues. A problem was that when 9/11 happened, they might have felt the need to justify actions in sweeping terms. Similarly, for the Obama administration, there was a refusal to assert power under Article II, but in the world we’re in now, the Administration is too timid to assert its power even if it wanted to out of fear of contradicting itself.
Savage agrees with the interpretation of Obama’s term, but not with the view of Bush seeing itself as needing to distinguish itself from Clinton, but rather of its own origin.
Barron wants to put into context Article II authorities. He says there is not much of a historical pedigree with the use of Article II authorities. He notes that when Presidents object to legislation, they object loudly and threaten vetoes.
A local resident asks about institutional capture, namely of the media–perhaps he has a bias to make decision-making more open. He asks if Savage can accept Brennan’s argument that it would be better for national security decision-making if such processes were not public? Would he not publish something that was newsworthy but did not fall under the category of troops movements?
Savage thinks there is a compelling reason to keep some processes more secret than others. For example, it would less easy for him to defend the public policy importance of revealing information on the debates of the Debt Super Committee. But with national security decision-making, they control everything. There will be no vote. It will just have happened. Here, the public interest is in learning about these momentous things in play.
Ben Wizner wants to push back on the notion that the rule of law critique has been mooted by the Obama administration. He brings up the targeting debate.
He thinks there is no question that Obama has cooperated with Congress in a way that Bush did not. He thinks the problem is that so many national security issues remain non-justiciable and how hard the Obama administration has fought against making them so.
Savage says he has no response to the comment.
Next, Sarah Cleveland brings up the stories Savage told about the interrogation debate and the Libyan intervention. Does he has a conception of what internal legal decision-making process is appropriate and what is not?
Savage says that executive branch lawyering in the absence of judicial oversight is where all things break down. He does not have a position on how the decisions should be made as a bureaucratic organization matter. At the end of the day, the President has the power–he overrode the Justice Department. He notes Levinson’s work on the flaws of the constitutional system and proposals for some kind of internal court to take the place of OLC. Savage says he’s just an observer.
Ben Wittes begins by noting how Savage stands out in that so much legal writing in the press tends to be gibberish. Why does the press do law so badly? What does he attribute this to?
Savage says he’s tempted to be glib and say he has no response. He says it’s quite hard and was lucky to have gotten a 1-year fellowship to attend Yale Law School. One perspective measure would be revive similar fellowships–journalists do not have much money. He says to some extent Ben’s critique is true; this could be one solution one day. In general, he shares Ben’s view in that there is simplification.
With that, Blum invites the audience to thank Savage and the various groups that helped make this Conference a success.
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