Salon Radio: Charlie Savage on Obama's civil liberties record

The NYT reporter explains the many similarities between Obama's Terrorism policies and Bush's.

Published July 2, 2009 3:03PM (EDT)

(updated w/transcript)

Back in February, The New York Times' Charlie Savage -- who won the Pulitzer Prize for exposing Bush's use of signing statements to break the law -- wrote an article reporting that, after a first-week Executive Order from Obama banning torture, "the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda," which is "prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies."  About Savage's February article, I wrote:

While believing that Savage's article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly).

In retrospect, Savage was right and I was wrong about that:  his February article was far more prescient than premature. 

Today, in the NYT, Savage has another article examining the same topic, headlined:  "To Critics, New Policy on Terror Looks Old."  In it, he explores this question:  "Has [Obama], on issues related to fighting terrorism, turned out to be little different from his predecessor?"  A key point from Savage's article -- which I've tried to emphasize several times -- is that whereas these policies were supported by roughly half the population (Republicans) in the Bush era but vehemently opposed by the other half (at least ostensibly), Obama's embrace of them is now causing a large part of the other half of the population (Democrats) to support them as well, thus entrenching them as bipartisan consensus:

In any case, Jack Balkin, a Yale Law School professor, said Mr. Obama’s ratification of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations.  By bestowing bipartisan acceptance on them, Mr. Balkin said, Mr. Obama is consolidating them as entrenched features of government.

"What we are watching," Mr. Balkin said, "is a liberal, centrist, Democratic version of the construction of these same governing practices."

That was the point former Bush DOJ lawyer Jack Goldsmith made when arguing last month that Obama is actually strengthening (rather than "changing") the Bush/Cheney approach to Terrorism even more effectively than Bush did by entrenching those policies in law and causing unprincipled Democrats to switch from pretending to oppose them to supporting them, thus transforming them into bipartisan dogma.

Savage is my guest on Salon Radio today to talk about Obama's record on terrorism and civil liberties, and the way -- as Savage describes it -- Obama has embraced and replicated many of the core "War on Terror" polices of the Bush presidency, particularly in the form they took in Bush's second term (even as Obama largely purports to reject the Bush theories of unilateral presidential power).  We also discuss how so many people who previously criticized these polices rather vocally when pursued by Bush are either silent or actively supportive now that Obama is defending them.  There simply aren't any better reporters on these issues than Savage, and I highly recommend listening to his very nuanced and well-informed views on these topics.  

The discussion is roughly 20 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly.


UPDATE:  The transcript is now posted here.

On a note related to all of this, the Obama administration -- which has repeatedly delayed releasing a less redacted version of the 2004 report of the CIA's Inspector General that aggressively challenged both the legality and efficacy of torture -- today announced that it would delay its disclosure by at least another seven weeks, to August 31, 2009.  We're in the New Era of Tranpsarency.

To listen to this discussion, click PLAY on the recorder below:

Glenn Greenwald: My guest today on Salon Radio is Charlie Savage of The New York Times, who won the Pulitzer Prize for his work on George Bush's use of signing statements to evade legal obligations.  He's also the author of the 2007 book Takeover - the Return of the Imperial Presidency and the Subversion of American Democracy. Charlie, thanks for joining me today.

Charlie Savage: Thanks for having me on.

GG: Back in February you wrote an article in The New York Times in which you reported:  "even as it pulls back from harsh interrogation and other sharply debated aspects of George W. Bush's war on terrorism, the Obama administration is quietly signaling continued support for other major elements of its predecessor's approach to fighting al-Qaeda," and you said that these developments were "prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush era policies."  And at the time I wrote about your article and I think I called parts of it, in my view, slightly "premature," and I actually, in retrospect, think that that article now was more prescient than premature.

I wanted to ask you, since that February article, it's been several months, and you have a new article in The Times today that poses this question:  "Has Obama, on issues relating to fighting terrorism, turned out to be little different from his predecessor?"

With regard to the actions that the Obama administration has taken since you wrote that February article, in your view, has the Obama administration continued to express, as you called it, "continued support for the major elements of Bush's approach to fighting al-Qaeda?"

CS: The answer to that is:  it depends on what you mean by Bush's approach to fighting al-Qaeda.  If you mean the actual policy of how are we detaining people, how we are monitoring communication in order to gain intelligence, what we are doing with Predator drone strikes in Pakistan and so forth, the substance of what is happening now, and what was happening on, say, January 20, 2009 before noon, when Bush was president, is very similar, and there's some superficial changes like they're going to try to close Guantanamo, but the policy of indefinite detention without trials for terrorism suspects who are deemed too dangerous to release, but too difficult to put on trial, remain.  So the essence of that policy is the same, whether it's at Guantanamo or somewhere else.

On the other hand, the Obama people point out that they dramatically toned down the rhetoric that George Bush was famous for, as far as asserting a unilateral, inherent, sweeping theory of Commander-in-Chief power that the president can do whatever he wants at his own discretion – set aside legal constraints, not go to Congress to change laws, but simply bypass them if he thinks doing so is necessary to protect national security – the Obama people don't talk like that.  What they're doing is getting congressional authorization statutes, so in that sense, what they're doing is quite different, or at least how they're going about getting to the end is quite different than what Bush did, at least in Bush's first term.

GG: Let me ask you about that, because I think there have always been two separate prongs to the criticism of how Bush handled these policies. One is the content of the policies itself, namely the denial of basic rights, the refusal to recognize core American values and principles and the like, and the other aspect of it is how those policies were effectuated.  There was a good period of time when they were just outright violating the law, breaking the law, acting contrary to congressional statutes. But then there came a point when, due to Supreme Court rulings that they were breaking the law, and the fact that some of these programs were leaked and became publicly known, that they actually went to Congress and got support for these same policies.

So, in terms of that second category – namely how these policies were effectuated, whether they were breaking the law or doing it with congressional authorization – can you describe the difference between, say, the first Bush term and the second Bush term in terms of how they went about doing these policies?

CS: Right. So, what you're getting at, this is a round-about way of answering that – is during the Bush administration years there was a great chorus of criticism from different factions that all agreed that what the Bush administration was doing was bad, but they were coming at it from different angles.

There was the civil libertarian faction who thought that the state should not have this much power over individuals, government agencies should not be able to wiretap without getting warrants, people should not be detained without trial, this is just too much state power and not enough individual rights. And secondly, there was the rule of law critique, which was kind of agnostic on that issue, but was saying, wait, the president should not have the power to violate statutes, and treaties that had been ratified, and the law.

So, in the second term of the Bush administration, prompted in part by news reports and in part by the various Supreme Court rulings, Congress finally woke up and started adjusting federal statutes to bring them into alignment with what the Bush administration was doing.  In the Military Commissions Act, they authorized military commissions and a bunch of other stuff related to detainees, and in the FISA Amendment Act and the Protect America Act, they authorized the National Security Agency program, wiretapping without warrants. And that relieved a lot of the legal pressure on what was happening.

The rule of law crowd kind of fell away at that point because now the president was acting pursuant to and in compliance with federal law. There was still the civil libertarian critique, which has some rule of law overtones, where the ACLU would say, well wait a minute there's still the constitutional problem with wiretapping without warrants, but at least you didn't have a specific, explicit, federal statute that the president seemed to be flouting any more. That made a big difference.

But in addition to that, what we now know is that it appears that even though they continued to insist that their harsh interrogation policy was legal all along, they stopped doing most of that stuff after Abu Ghraib, or certainly into the second term of the Bush administration. So even though you had, recently, Dick Cheney saying, you know, oh my God, Obama saying that the CIA has to not torture people is going to cause tremendous risks to the country, and if we get attacked that will be why.  In fact, those policies hadn't been exercised for years. And so, the set of counter-terrorism programs that Obama inherited, and has largely continued since January 20, looked very different than what was happening in 2002, 2003, 2004.

GG: So then, let's take that comparison, then, because part of the significant controversy once the Democrats took over control of the Congress in 2006, was that as Bush administration counter-terrorism policies became public, as they became invalidated by courts including the Supreme Court in the case of Hamdan in 2006, that what the Democratic Congress proceeded to do was essentially to authorize, to give its legal approval to, many of these most controversial policies, so that the controversy in the second term was no longer about "is Bush breaking the law?"; instead, the controversy was:  look at Congress giving its approval to these radical policies that, as you say, civil libertarians objected to in terms of what they actually did.

So in terms of comparing the Bush second term terrorism approach to Obama's current approach since he's been inaugurated, since you wrote that February article, do you think it's fair to say that those two periods -- namely Bush's second term, Obama now -- are much more similar than they are different in terms of how they're approaching these issues?

CS: Oh, I think it's very fair to say. I mean, Bush had emptied the CIA prisons in 2006 when he brought all the high-value people to Guantanamo; they rhetorically said, we can still do that if they want, but it's not clear that they were. With Obama now reviving military commissions, but with statutory authorization is what Bush was doing after the Military Commissions Act of 2006. The wiretapping program, in alignment with federal statute, is quite the same, and so forth. There's a few things that have been adjusted around the edges; the Obama people, A) they would say, look, we're still reviewing this, this isn't the final chapter yet, but B) they would also say, we've added some extra protections here or there. These are, in some places, true, but in terms of the broad outline, it is essentially the same thing going forward.

You know, I had this interesting conversation when I was working on this article that came out this morning with Jack Balkin at Yale Law School, and he compares this moment to when Dwight Eisenhower took over, in 1953, and after FDR and then Truman had built up the New Deal administrative state, which Republicans hated, but then Eisenhower, instead of dismantling it, just sort of adjusted it with his own policies a little bit, and kept it going. And at that point, there was no longer any sort of partisan controversy about the fact that we were going to have this massive administrative state; it just sort of became a permanent part of the governing structure of the country.

And in the same way he said in 1969 when Richard Nixon took over from LBJ, he did some adjustments to the great society welfare state that LBJ had built up, but he didn't scrap it. And at that point, Republicans and Democrats had both presided over the welfare state and the welfare state became part of just how government worked.

That in the same way, Obama now, by continuing the broad outlines of the various surveillance and detention and counter-terrorism programs, is draining them of plausible partisan controversy, and so they are going to become entrenched and consolidated as permanent features of American government as well, going forward.

GG: Right. Now, to me, that is the critical point, the one that you referenced and described Jack Balkin as making, and you actually quoted him in your article making this point as well, namely that these approaches to how we think about civil liberties and counter-terrorism, detention, and the like, have been transformed by Obama from purely Republican and George Bush-advocated policies, into bipartisan consensus, as a result of the fact that we now have a Democratic president as well, not just advocating these policies, but implementing them and aggressively defending them.

I know I've noticed a significant change in how Democrats and progressives talk about national security issues in the past several months. None of them used to defend secrecy policies of George Bush or detention powers or the denial of habeas corpus, or the right of preventive detention, and of course many, many of them now do.

So I wanted to ask you:  in the course of your reporting, you talked to lots of people on the Hill and otherwise, have you noticed a change in how Democrats, progressives, people who are defenders of Obama talk about these issues as compared to how they talked about it during the Bush presidency, compared to how they talk about it now?  Are they more willing to tolerate these sorts of things under Obama than they were under Bush?  Have you noticed a change yourself in the mentality?

CS: Yes. Now, you've got – I have.  Definitely you see people who used to be delivering blistering floor speeches in Congress now letting things go unremarked upon, or saying things in a much more restrained tone, if they say them at all, and this is part of, I guess, the sort of entrenchment, or the draining of partisan controversy over this.

That's also part of what's interesting about seeing or understanding what was happening during the Bush years. In the same way that a component of the criticism of Bush was based in civil liberties concerns, and a separate component was based in rule of law concerns, which are now not a problem any more, it's clear that another part of it, or at least of the noise we've heard in that era, had to have been, in retrospect, partisan. And of course the Bush administration defenders had said all of it was partisan, and that's not fair, that's not right, there were rule of law concerns and there were civil liberties concerns. But from people who used to shout and not aren't, that's probably the explanation.

On the other hand, to be fair, there's a shifting of the goal posts here because, again to emphasize, the stuff that was open to legal criticism, as being illegal because it clashed with congressional statutes in the beginning, in 2002, 2003, 2004, 2005; it's much harder to make that claim now. The legal concerns have been dramatically reduced. And you can criticize Congress on policy grounds, if you are a civil libertarian, you can say they ought not to have done that, but the fact is that you win some, you lose some, and at least the process that we think of as the traditional process by which society in the United States is supposed to determine what we're going to do, which is Congress deliberates and then votes, well it's followed belatedly to come into the bulk of these policies...

GG: Let me ask you about that, because, you're right, and I agree that the lawlessness aspect of it eroded as Congress began endorsing these policies, but Congress really did that, not under the Obama administration.  These policies didn't come into legal compliance in the last couple months; they came into legal compliance in the second term of the Bush administration in 2006, 2007.

And so when Obama was running around in 2007 and 2008 aggressively criticizing the Bush administration's approach to the War on Terror, and when Democrats and progressives in 2006, 2007, 2008 were doing the same, it was already the case that there was legal authorization for these policies; therefore it must have been the case that that critique, which continued as vigorously in those later years, was based on objections to the policies themselves. Isn't that fair to say is just a logical matter?

CS: I don't know if I agree with that. I think that that's underplaying the factor of pandering. When Obama was running around, as you say, making these aggressive critiques, that was primarily in the context of the Democratic primary for president, when he was speaking to the most liberal component of the electorate that was angered at what Bush had been doing over the years, and no one was going to get to the left of whoever was eventually going to win that nomination. And so they were all competing with each other to give voice to the frustrations of people who were very angry at George Bush over what they perceived to be law-breaking.

And, in that context, I think it's quite valid to call it pandering, but it's also this political reality the candidates, including Senator Obama, were not careful about distinguishing what it was they were criticizing. What was happening at that moment, or was it what had been happening two or three years earlier, some of which we were only then starting to have recently found out about?  That lack of carefulness about what exactly it was he was criticizing now makes his continuation of these policies as they existed at the very end of the Bush administration look more questionable. But then when you parse it, and you look for the weasel words and so forth that you would find in any political speech, you can construct the line, well, maybe what he was really saying was, what they were doing in '03, '04, was bad, and he was allowing his audience to think that he was speaking more broadly.

GG: Right. I guess those are two separate issues: number one -- are the policies that Obama is implementing and pursuing good or bad policies, and then the other, separate question is: did he indicate during the campaign that he would reject those policies and quote-unquote "change" the approach, or did he leave room to believe he would actually continue them?  And I guess those are two separate things, but along those lines, I want to ask you this question, and I have a couple more for you only:

Jack Goldsmith, the former Bush Justice Department lawyer, wrote an article in The New Republic, I think about six weeks ago, arguing -- I believe persuasively -- that Obama's generalized approach to the war on terror is not just similar to Bush's, but it's actually strengthening Bush's policies, because in Goldsmith's view, one of the flaws, one of the mistakes that Bush made, was by not seeking congressional authority in the beginning, he failed to get as much support, as much entrenchment for these policies legally, as he would have been able to had he gone to Congress. And that Obama is actually being more successful in institutionalizing these war on terror policies than even Bush and Cheney were, not only because he's draining it of a partisan conflict, as you described earlier, but because by going to Congress and vowing to work with Congress, he's providing a much firmer foundation for these policies and ensuring that they endure for a longer time and might be more invulnerable to judicial challenge as well.

Do you agree with Goldsmith's view, that not only is Obama replicating a lot of these policies, but actually strengthening them through his approach?

CS: Absolutely. That was a great article, and it also reflected the themes of his book, in which he similarly talked about what a great strategic error it was for people in the Bush administration to be so unilateral in their rhetoric. His point was not just making a show of going to Congress, but it was also saying the right things as far as, we really want to respect checks and balances and separation of powers and oversight, we are worried about the Constitution as we do these things, and so it sort of reassures people that as executive power is accreting, that it's not going to be abused when you hear the person talking like that.  Even if under the surface of things the power is the same, as opposed to Bush who made a show of saying, I can do this on my own, the heck with what you think, and so forth. Even if what's happening on the ground is the same, that rhetoric provides a political context which bolsters public confidence rather than undermining it. But this is all sort of stage-craft, the pageantry surrounding a reality that may be quite similar.

But I think what Goldsmith would also say – and I think he's probably also right about this – that it's not just empty rhetoric, right? Saying the right thing over and over again, and making a show of going to Congress adds up to substance after a while. It adds up to – people should go read that article for themselves, I'm sort of mangling, I don't want to leave the impression that he was saying or that I think there's nothing to this. There's something to it, but maybe not as much as the casual listener would be led to believe.

GG: I wrote a long article about Goldsmith's article and I will link his article again as well as my analysis of it, because I do think it captured a lot of the key issue in a really nuanced and illuminating way.

Let me ask you this last question. You, of course, won the Pulitzer Prize for your work on signing statements, and Bush's use of them. During the campaign, you submitted a questionnaire to all of the candidates, many of whom answered, one of whom was Obama, regarding many of these executive powers including signing statements, and Obama said at the time that he does not, as John McCain said, believe that signing statements are always illegitimate, and he did not vow that he would never use them, he actually said that he thinks they have a proper place in presidential power, and since then I think they've clarified, and I think you wrote an article about this a couple of months ago, about when they believe that they would use signing statements and how it was distinguished from how Bush used them, that they would inform Congress ahead of time that there were provisions they thought were invalid, attempt to get it out first, things like that.

There were some signing statements issued last week in connection with the war supplemental bill.  How do you compare Obama's use of signing statements thus far to Bush's use, in terms of frequency, in terms of content, and anything else you think is important.

CS: Well, Obama is definitely making legal argument in his signing statement that similar to some of the legal arguments that Bush made in terms of control of negotiations overseas, in terms of appointment power issues and so forth. They're quite similar. Obama has yet to make any sort of really staggering claim, that is to say, invoking constitutional theories that are flabbergasting, or attacking a statute that is a really high-profile politically combustible statute. One of the reasons that there was not much press attention to Bush's signing statements at first was, it took the trigger of Bush using one to say that he didn't have to obey the McCain torture ban, which was and remains his most famous signing statement, to put the spotlight on the rest of what he was saying. So far Obama has been using it to go after small boring stuff, but he's been using it quite a lot.

He's challenged many more sections of bills at this point than Bill Clinton after the first few months of his term, and even probably that George W. Bush had in the first few months of 2001; one reason for that there's just been a lot more legislation early on in 2009. But I think that we're seeing in the same way that we were talking about the institutional relation of the counter-terrorism policy earlier in this conversation, what we're seeing is one-way ratchet effect of the signing statement device. Just as no-one used it very much at all, although there are isolated cases going back to the 19th century, but no-one really used it regularly until the end of the Reagan administration, and then Bush I, and then Clinton came in and used it some, and then Bush took that new plateau and ratcheted it up again.

Obama is using it more than Clinton did before him and certainly than any other previous Democratic. The argument over what is the issue with signing statements – are signing statements legitimate in and of themselves, as long as the legal theory is that the president is invoking the reserve of a right to ignore a law is uncontroversial, is that okay, or is it the American Bar Association absolutist position that a signing statement is never okay; a president should be vetoing. I think is sort of reinstitutionalizing, the first approach is the one that presidents of both parties, forever, are going to keep using.

GG: Very good. Well there are few better places to stay informed about terrorism and civil liberties and national security policies than Charlie Savage's byline and that's been true for quite a long time now, and Charlie, I really appreciate your taking the time to talk about your important article with me this morning.

CS: My pleasure. Thanks a lot, Glenn.

[Transcript courtesy of Thames Valley Transcribe]

By Glenn Greenwald

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