What’s missing from Charlie Savage’s best-selling “Power Wars”?

This week I received the just-released paperback version of Pulitzer Prize winning reporter Charlie Savage’s 2015 best-seller, Power Wars: The Relentless Rise of Presidential Authority and Secrecy from the publisher.  With some important caveats, I’m pleased to recommend it.

In his interesting new preface to the paperback edition, Savage describes his work:

It is the story of how and why Obama, a liberal constitutional law teacher who was widely expected to roll back George W. Bush’s war on terror, ended up instead merely adjusting it – and in the process curated an immense arsenal of presidential powers and legal precedents that he then found himself handing off to Trump.  And it is the story of Obama’s team – a group of national security legal policy specialists who believed that they were looking around corners to take into account future risks and put into place safeguards against them but did not anticipate that Trump and his team would inherit their handiwork.

When the hardback came out in 2015, Matt Waxman wrote in Time that the book “provides the most comprehensive account to date of the Obama administration’s approach to national security law and policy-making” adding that the book  provides a “rich account of how and why Obama reached his decisions therefore contributes to the potency of his legacy.”  All the reviews I’ve seen praise the book; in fact, the new paperback edition begins with three pages of very positive commentary extracted from book reviews in a wide variety of publications.

For the most part, I agree with the reviews I read.  As Cully Stimson put in his assessment, the “book is a must-read for anyone who wants a fly-on-the-wall view of how the [Obama] administration wrestle[d] with complex legal issues during wartime.”  Personally, I marveled at the number of Obama administration lawyers who evidently were sources for the book – some anonymously – others quite openly.  Renditions of private conversations as well as material from internal government documents appear in the book.  While it might have been profitably edited into a shorter volume (Stimson calls it a “tome”), Savage’s clear writing style makes it quite readable. I learned a lot from the book, which is the key reason I am recommending it.

It is not, however, a truly “comprehensive account” in my opinion.  Among other things, it almost exclusively focuses upon civilian administration lawyers.  One would not know from Power Wars, for example, that during the period Savage examines there were thousands of military lawyers – called judge advocates or “JAGs” in military parlance – who served.  Those JAGs made numerous difficult hard national – and international – security law decisions and, unlike the inside-the-Beltway politicos on which Savage concentrates, often did so in combat zones, including the battlefields of Iraq and Afghanistan, at great personal risk.

Nevertheless, in Power Wars uniformed lawyers make only scattered appearances.  One mention relates to when then RADM Jim Crawford (now the Navy’s Judge Advocate General) gave some legal advice as the Chairman’s Legal Counsel about a peripheral issue associated with the Bin Laden raid: what to do with Bin Laden’ corpse (Crawford concluded that burial at sea was legally acceptable).  Brig Gen Mark Martins appears somewhat more often, mostly in connection with his role as chief prosecutor for military commissions.

One of the few references to any other military lawyers is not especially flattering.  Savage quotes (p. 268) a statement from a memoir of one the SEALS involved in the Bin Laden raid.  The lawyer, from with the Department of Defense or the White House, supposedly said, “If [Bin Laden] is naked with his hands up, you’re not going to engage him.”   In addition, this lawyer added that he was not going to tell the SEALS how to do their job, but if Bin Laden “does not pose a threat,” he is to be detained.  Savage says this advice “most likely” came from Special Operations Command’ “top uniformed lawyer” and “not one of the administration’s lawyers.”

I don’t know who did the briefing, but Savage’s conclusion (which he does not explain) exonerates the “administration’s lawyers” he highlights in the book from one of the most controversial aspects of the raid: did the shooting of the wounded Bin Laden violate the law of war’s prohibition of attacking those who are hors de combat from their wounds?

Some say, “yes” while the better view, in my opinion, is that it did not.  A SEAL told 60 Minutes that even after being shot, Bin Laden continued to move around “a little bit.”  The SEAL was concerned that he “couldn’t see [Bin Laden’s] arms [or] hands” causing to him to think, not unreasonably in my opinion, that Bin Laden “[c]ould’ve had a hand grenade or something underneath his chest.”  Under these particular circumstances – where it might be expected that Bin Laden would blow himself up before allowing himself to be captured – for the SEAL to conclude that he had to make as sure as he could that Bin Laden could not trigger a blast.

Still, the point is this: Would an experienced, senior military lawyer briefing what was the most important mission of the post 9/11 era have forgotten to address an eminently predictable scenario of a wounded Bin Laden?  Would he or she not have explored with the SEALs the law of hors de combat despite its obvious relevance?  Anything is possible, but I’m skeptical.  Would a civilian lawyer not used to briefing warfighters have overlooked doing so?  I’m much less skeptical about that.

Does this mean Savage has some anti-military or anti-JAG bias?  I don’t think so.  To my knowledge, he has not demonstrated any hostility or even dismissiveness about the role or function of JAGs.  Quite the contrary, the efforts of uniformed lawyers to resist the excesses of the civilian government lawyers during the Bush years were prominently featured in his 2007 book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.  Rather, Power Wars is one where the author has a conclusion that discussing the machinations of civilian, policy-making lawyers better supports his contentions.  In other words, Power Wars is essentially a polemic, not an impartial and comprehensive legal history of the period.

Even assuming Savage prefers to focus in Power Wars on political lawyers and their Washington intrigues, it is still puzzling that he leaves untold another one of the most important legal stories of the post-9/11 period:  how dithering civilians and/or others at State, DoJ, and elsewhere in the interagency process delayed for nearly fifteen years the publication of the DoD Law of War Manual.

Hays Parks, the world-renowned warrior-lawyer who was the original architect of the project, fought for the Manual for years (see, e.g., here).  When he retired in 2010, the revised Manual was virtually ready to be printed, but Obama administration politicos delayed it.  In a 2013 article a clearly frustrated Parks (and his co-author, Edwin Williamson) were gravely concerned, saying that the “delay, the lack of transparency, and the changes being made to the manual by political appointees without law of war experience…could endanger the lives of our fighting men and women.”  They then went on to observe:

As one law of war authority said in expressing his disappointment that “this project has truly collapsed,” the law of war “is in the midst of a potentially transformative period, and it is remarkable and risky for the U.S. government in general and the Pentagon in particular to sit quietly on the sidelines.”

Apparently, interagency agreement was never reached because when the Manual was eventually published on 2015 it contained the caveat that:

Although the preparation of this manual has benefited from the participation of lawyers from the Department of State and the Department of Justice, this manual does not necessarily reflect the views of any other department or agency of the U.S. Government or the views of the U.S. Government as a whole.

We may never know whether the degree to which the “as published” version of the Manual reflects what Parks, a Vietnam veteran, had crafted over the yearsIn disgust, Hays has refused to read or comment on the Manual.  The inside story of the delay and failed agreement among the political lawyers would have been an intriguing and still-relevant addition to Power Wars.

Equally – or perhaps even more fascinating – would be the story of how U.S. military lawyers in the field coped with the indecisiveness of their political counterparts in the interagency process to fashion legal decisions (with help from some civilian political appointees and civil-service professionals).  Years of war required decisions on the battlefield and that is itself a story worth telling.  It is especially important because those lawyers at the proverbial pointy-end-of-the-stick also had to deal with their foreign counterparts on a real-time basis in the midst of combat operations where thousands of young Americans were in harms’ way.   That they had to do all that without a current law-of-war manual approved by the Nation’s leadership reflects poorly on the civilian lawyers of both the Bush and Obama administrations.

Another issue with the book is not so much an omission, but rather more in the category of an error that, sure, Savage should have caught, but if not, the publisher.  Here’s what Power Wars says at the beginning of Chapter 2 (p. 36):

As the government has grappled with one terrorist crisis after another since 9/11, tremendous power and pressure have descended on the executive-branch lawyers charged with handling national security issues. Remarkably few of these attorneys, in either the Obama administration or the Bush-Cheney administration before it, came up professionally as trained specialists in national security law. Law schools barely taught that subject before 9/11, and its substance has evolved rapidly since then.  Classes on the topic are now more widely available – but often, the professors teaching those classes turn out to have learned about it on the job as Bush or Obama administration officials.

This passage might most charitably be described as “off the mark.”   My institution – Duke Law School – has had national security law courses since 1993, but we are hardly alone among the many law schools offering national security law courses well before 9/11.  Indeed, according to the American Bar Association, the “number of accredited law schools offering courses on national security law has increased from one in 1974 to 83 in 1994.”  (Emphasis added.)

Furthermore, as Professors Peter Raven-Hansen, Stephen Dycus, and William C. Banks note in their essay, A Brief History of the Field of National Security Law, as early as 1990, there were two national security law texts available, and many more were to follow.  Besides the 83 law schools teaching national security law well prior to 9/11, military legal institutions had been training lawyers in national security law for at least fifty years prior to 9/11.  Moreover, the Army JAG School began granting fully-accredited LLM degrees in 1988.

The real story, and the one that Power Wars misses, is why politicians of both the Bush and Obama administrations continued to rely upon talented but obviously ill trained and inexperienced lawyers despite the pool of thousands who were schooled, seasoned, and available to handle many of the issues that confounded the lawyers Power Wars highlights.

All of this said, Power Wars is a very important book that academics and practitioners alike should read.  It also has much to offer students and the general public, so long as they understand it is a fascinating rendition of of the larger story, one that is yet to be written.

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