Power Wars: How Obama justified, expanded Bush-era surveillance

Over the winter holidays, I took some well-needed time offline, away from e-mail and social media. I hung out with friends and family, and I spent hours with my nose in a massive book, Power Wars: Inside Obama’s Post-9/11 Presidency. Charlie Savage’s latest book is the most essential explanation of modern-day American national security policy.

After reading it, I came away with one (fairly obvious) conclusion: keeping the republic safe is hard and crazy complicated. Anyone who has followed current events on drone strikes, surveillance, and encryption, and other essential issues at the forefront of modern America—and wants the entire inside baseball play-by-play to go with it—will love this book. (The book is quite expansive and covers many other issues that this review will not address.)

The premise of the book is simple and intriguing. It opens with two epigraphs, both from Barack Obama.

[The Bush-Cheney Administration] puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorist without undermining our Constitution and our freedom.

—Senator Barack Obama, presidential campaign address on national security policy, August 1, 2007

I think the American people understand that there are some trade-offs involved…I think it’s important to recognize that you can’t have a hundred percent security and also then have a hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.

—President Barack Obama, responding to the disclosure that the National Security Agency was systematically collecting records about Americans’ domestic phone calls in bulk, June 7, 2013

The story of Power Wars is what happened between these two quotes.

Governing by lawyer

The opening 100 pages or so set the tone for the tome: comparisons between the outgoing Bush Administration and the incoming Obama Administration, circa 2009 and into 2010. In fact, the book opens up with a tick-tock of what various Washington, DC insiders were doing when Umar Farouk Abdulmutallab was attempting to blow up Northwest Airlines Flight 253 on approach to Detroit on December 25, 2009.

The level of access that Savage had is best illustrated in the tiny details: then-Attorney General Eric Holder showed Savage a picture of his "tantalizing Christmas turkey," which Holder had to leave suddenly to deal with the bombing, as "a reminder of a moment in time just before the world had changed."

A theme that runs throughout the book, that Savage outlines at the beginning, is the idea that the Obama Administration was "government by lawyer, methodical and precise—sometimes to a fault," in contrast to the Bush Administration which was "caricatured as government by cowboy."

As he writes:

Lawyerliness shaped Obama’s governance as a matter of style and thought, not just process. Obama was a lawyer and a law teacher not a CEO, and he chose many other people with law degrees—including his vice president, the secretaries of key cabinet departments and agencies, and several of his White House chiefs of staff—to be members of his team. This was important, because lawyers are trained to think in very particular ways. When analyzing a problem, they try to identify all the issues and grapple with the strongest arguments against their own position. They demand good writing. They attempt to keep options open as an end in itself. They prize rigorous adherence to process. They consider it a judicial virtue to move incrementally and stay within the narrow facts at hand.

By going through various deliberative processes, including the secret interrogation of Abdulmutallab, the end result was the acceleration of the process to hunt down and kill Anwar al-Awlaki, the American-born Muslim cleric living in Yemen. It was al-Awlaki who helped guide the young Nigerian would-be terrorist. Al-Awlaki himself was killed in a drone strike in September 2011.

This key event is one of the stark reminders that in some ways the Obama White House took policy decisions that even Bush did not.

"Even Bush had not signed off on the deliberate killing of a United States citizen without a trial," Savage writes. "And notwithstanding the extraordinary precedent this established for state power and individual rights, the Obama administration would fight for years to keep the basic facts and legal analysis about its action secret from the public."

Indeed, it wasn’t until 2014 that the legal rationale was finally published, after a federal appeals court ordered that it be released.

Many groups, including the American Civil Liberties Union, would argue that the extrajudicial killing is in violation of the Fifth Amendment to the United States Constitution, which states that no person shall be "deprived of life, liberty, or property…without due process of law." However, the Obama administration argued that the killing of terror suspects like al-Awlaki is justified as they pose a "continuous and imminent" threat to the national security of the United States.

Turn of phrase

For years now, Ars (and other media outlets) have tried our best to wrap our heads around government surveillance programs, ever since they were revealed by Edward Snowden in 2013.

One of the key moments in the (now-defunct) National Security Agency’s program to scoop up all telephone metadata was the moment that President Obama was fully briefed on it—or "read into it," in government parlance. That moment came in the early days of the Obama White House, in February 2009.

Savage paints a remarkable picture in the Situation Room with Obama at the center of a conference table, flanked by then-Attorney General Eric Holder and then-White House counsel Greg Craig. Seated elsewhere were the top lawyers from the National Security Council, the heads of the FBI, the NSA, and their respective lawyers.

Benjamin Powell, then-general counsel of the Office of the Director of National Intelligence, quickly took command of the meeting and outlined the details of the program—specifically noting that it involved a literal dragnet of every Americans’ phone metadata. Powell did his best to present the limits of the program, but clearly there was no one in the room willing to speak ill of its intelligence value or its potential to violate civil liberties.

Just days before, US District Judge Reggie Walton, who was then serving as the Presiding Judge on the Foreign Intelligence Surveillance Court (FISC), had lambasted the NSA, nearly referring them on criminal charges of violating the court’s orders.

As Savage tells it, Powell simply portrayed the FISC interaction as a problem that the intelligence community had sorted out.

This was a pivotal moment. The new president could have responded to the judge’s concerns by shuttering the government’s dragnet collection of Americans’ data the instant he learned about it.

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; it was just a compliance problem stemming from the technical difficulty of retrofitting a preexisting program to judicial orders superimposing rules on it. And [then-NSA head Gen. Keith] Alexander and other officials at the meeting emphasized that the program was a critical tool for protecting against terrorist attacks, one that might have prevented 9/11 had it been in place earlier—a claim that would face scrutiny after the program came to light in 2013.

It’s incredible to imagine what could have happened if Obama had pushed back, or even shut down the metadata program long before Snowden became a household name.

Scheduling trickery

One of the most curious things that comes out of the book is the degree of sophistication that the executive branch and law enforcement can take when pushing their agenda. Sometimes, they claim that they have adequate oversight, when they are really obscuring their actions.

A crucial example of this came in the warrantless surveillance (Stellarwind) program during December 2006, when the Bush-era Justice Department submitted a new motion to the FISC. The DOJ wanted the FISC to bless what it had already been doing for five years by essentially doing an end-run around Congress.

The idea was to reinterpret a word in [the Foreign Intelligence Surveillance Act (FISA)]—facility—that had traditionally been understood to mean a phone number or an e-mail address. For regular FISA orders, after judges agree that a target is probably an agent of a foreign power, they authorize surveillance directed at the specific facilities the target uses to communicate. The executive-branch lawyers argued that facility could mean an entire gateway switch or cable head connecting the American communications network to the global network.

The DOJ motion was approved by US District Judge Malcolm Howard, an Army veteran and Reagan appointee, who then sat on the FISC. Amazingly, Judge Howard was the same judge who had originally "blessed the bulk phone records program."

In fact, this was no coincidence. The Justice Department knew which FISA Court Judges would be sitting which week. Officials told me that [then-acting head of the Office of Legal Counsel Steven] Bradbury in particular had pushed hard to file the application on a week when Howard was sitting again. This was forum shopping—strategically filing a lawsuit in the venue where you think you are more likely to win.

Judge Howard’s colleagues were furious. The next month, Judge Kollar-Kotelly yanked the Department of Justice’s access to the judicial duty roster to avoid this in the future. (Savage notes that this action by the court has never been reported.)

Similarly, Savage also notes several pages later that when Congress signed off on the Foreign Intelligence Surveillance Act it almost certainly did not intend for the government to be able to perform, en masse, "upstream-style surveillance."

Often when the NSA or other government agencies have to present themselves before Congress, their answers are legalistic and obtuse. As Rep. Justin Amash (R-Mich.) put it in 2013, even classified briefings are "a farce."

In a talk at the Cato Institute, a conservative think-tank, Amash said:

So you don't know what questions to ask because you don't know what the baseline is. You don't have any idea what kind of things are going on. So you have to start just spitting off random questions: Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army? If you don't know what kind of things the government might have, you just have to guess and it becomes a totally ridiculous game of 20 questions.

Heart of darkness

Towards the end of the book, Savage touches on an issue that continues to vex domestic law enforcement, even to this day. It’s what the FBI calls the "going dark" problem. For over two decades, domestic law enforcement has wanted access to encrypted Internet-based communications, much in the same way that it had access to traditional copper-wire-based telephony under a 1994 law known as the Communications Assistance for Law Enforcement Act (CALEA).

But the FBI and local enforcement lack a way to access data—e-mails, text messages—if they are encrypted. The FBI cannot present a court order or a search warrant to Google and ask it to decrypt a PGP-encrypted message held on its server, for example.

In the wake of Snowden, many companies—in particular, Apple—made full-disk encryption the default on their devices. CEO Tim Cook has taken a strong pro-privacy policy since iOS 8, saying that not even Apple could decrypt the devices if it wanted to.

"We said no backdoor is a must," Cook said at a Laguna Beach, California conference in October 2015. "Do we want our nation to be secure? Of course. No one should have to decide between privacy or security. We should be smart enough to do both. Both of these things are essentially part of the Constitution."

This month, two state lawmakers in New York and California have introduced legislation that would ban the sale of devices that come with an encryption capability that law enforcement cannot access. Legal experts told Ars that if these bills become laws, they would likely be illegal and would face notable challenges.

He even cites a 2014 speech given by FBI Director James Comey that touches on this exact issue.

"These are cases in which we had access to the evidence we needed," Comey warned. "But we’re seeing more and more cases where we believe significant evidence is on that phone or a laptop, but we can’t crack the password. If this becomes the norm, I would suggest to you that homicide cases could be stalled, suspects could walk free, and child exploitation might not be discovered or prosecuted. Justice may be denied, because of a locked phone or an encrypted hard drive."

However, the FBI has yet to provide clear metrics as to how many cases died because investigators were entirely stymied by encrypted digital evidence. Indeed, Comey cited a laundry list of examples where unlocked phones enabled prosecutors to successfully bring cases.

Similarly, there is such a vast quantity of data collected in the name of national security, under various legal authorities, that it’s impossible to have a clear cost-benefit analysis.

At the very end of the book, Savage addresses Executive Order 12333. As Ars reported previously, "twelve triple three" is a presidential order that spells out the National Security Agency’s authority to conduct signals intelligence, among other things. EO 12333 was amended three times under President George W. Bush. Famously, the NSA expanded its domestic surveillance operation after the September 11 attacks without a direct order from the president, who later provided cover under EO 12333.

Savage concludes:

It is true that the public debate is missing crucial data about the scale of incidental collection of Americans’ communications under 12333 rules. What is the absolute and relative volume of Americans’ messages in the 12333 storehouse? For there to be meaningful self-government on this issue—to debate whether the rules for collecting, searching and using those private messages are the right rules—one would have to know that answer. To date, the NSA has not provided it. One intelligence official told me that the types of data the NSA collects are so varied that is simply too hard to come up with a representative sampling and do a valid study.

It's clear that national security, surveillance, and technology are set to become even more intertwined as the 21st century marches on. Yet as lawmakers, journalists, lawyers, cryptographers, and activists continue to butt heads over these issues, a clear consensus seems far, far away.