How Obama ‘Legalized’ the War on Terror

Among the troubling legacies of Barack Obama’s presidency is his consolidation of the dubious legal principles that George W. Bush cobbled together to justify the Global War on Terror, explains Michael Brenner.

By Michael Brenner

President Barack Obama’s uneasy encounters with the law in devising numerous innovative means to prosecute the “War on Terror” are treated exhaustively in Charlie Savage’s much discussed book, Power Wars. This compendious volume is destined to be a landmark in the writing of the period’s history.

It also should be seen as a marker of its times as it at once explains how Obama sought legal grounds by which to justify methods that skirt the Constitution and takes at face value the assertions of those who claim to have done a conscientious analysis of the laws and the Constitution without prejudice.

President Barack Obama concludes a National Security Council meeting in the Situation Room of the White House, April 19, 2016. (Official White House Photo by Pete Souza)

President Barack Obama concludes a National Security Council meeting in the Situation Room of the White House, April 19, 2016. (Official White House Photo by Pete Souza)

Therein lies the heart of the dilemma associated with an account of this kind. For there are two broad approaches available. One is to surmise that policy preferences were made prior to and independent of the legal exegesis – however elaborate that exercise may have been.

The other is to give the participants, in the Oval Office on down, the benefit of considerable doubt in ascribing to them an earnest dedication to ascertaining where the legal boundaries lay before the decisions were taken on policies and programs.

Savage doesn’t make a choice – explicitly. He does so implicitly, though, by concentrating on a systematic account of the deliberative process among the lawyers charged with demarcating legal territory. For this purpose, he spent hundreds of hours interviewing those officials. The strategic and political dimensions are present only as background factors.

Rarely does Savage address the key question of how the latter intruded on the former – and then only obliquely. The author apparently did not press the respondents very hard to reflect on how their legal opinions might have been affected – wittingly or unwittingly – by what they…

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