TRANSCRIPT: Interview with Charlie Savage on Obama’s War on Terror Legacy

Over the years, Savage has proved a tireless chronicler of the controversies over civil liberties and war powers under Obama.

This full transcript of our interview with Charlie Savage has been edited for clarity. To listen to the audio, click here.

GREENWALD: This is Glenn Greenwald with The Intercept and my guest is the Pulitzer Prize-winning reporter with the New York Times, Charlie Savage, who has a newly published book, the title of which is Power Wars: Inside Obama’s Post-9/11 Presidency. And I think the best way to describe this book is that it’s really a comprehensive history on all of the many civil liberties and war power controversies that have taken place over the last seven years under Obama, and especially the extent to which Obama has or has not, as one chapter put it, been acting like Bush in these areas.

One of the things I found most valuable about the book, Charlie, is that you have access to a lot of sources who have been inside these controversies — White House lawyers, lawyers in the Justice Department, key Pentagon officials ­– who we haven’t heard all that much from on these controversies until your book. It gives some great insight into what a lot of these people who have been responsible for these decisions have been thinking about, why they made the choices they made. I want to begin by taking a step back and asking you about the history of these issues. Of course these issues were very controversial after 9/11.

Under George Bush and Dick Cheney, there were a lot of accusations that they were constructing what was called “an imperial presidency,” and yet as you point out, this kind of model and concern about the imperial presidency dates back to the end of World War II when all of these war agencies and militarized policies were implemented, and then after the war they weren’t deconstructed. And it was Arthur Schlesinger, the historian, who coined the term imperial presidency. How did those events create the conflicts that ended up being so controversial first under Bush and now under Obama?

SAVAGE: Sure. Thank you very much for having me on, Glenn, I really appreciate it. In some ways, what you’re asking me to do is summarize my first book about the growth of executive power, especially from Watergate to the present, and especially under the Bush administration at that time.

You’re absolutely right that it was typical in American history — up until World War II — that when there was a war, there would be a tremendous growth in executive power. There would be the creation of a big army, and the president would have all kind of tools at his disposal and things that he was in charge of, that when the war was over, would be dismantled again. The army would be largely decommissioned and the people would come home and the special powers that had been asserted would lapse.

And that changed after World War II because we segued from that war into the Cold War, and we’re right away in a major global cold, but sometimes hot, conflict with the Soviet-driven Communist empire. We keep our large standing army; we keep standing bases all around the world. Agencies like the NSA and the CIA are sort of created out of predecessors that were invented sort of for the purpose of winning World War II.

At the same time the massive administrative state that had grown up in the New Deal becomes entrenched as the first Republican president since FDR takes office and keeps it rather than scrapping it. Because of this climate of perpetual emergency, you see the executive branch, under presidents of both parties, increasingly making claims of great power that puts them beyond Congress and the judiciary in matters of secrecy, and so forth, that largely the other branches acquiesce to, and for that reason, what Schlesinger calls the imperial presidency grows up and peaks with Nixon, although certainly LBJ and Democratic presidents — JFK — were also as involved with it.

GREENWALD: It almost seems like we do have this vision of the country as it was supposed to exist that has become pretty distant from the role that the U.S. government actually plays in the world. And yet at the same time, we’ve retained those founding documents, particularly the Constitution, that is supposed to govern how everything functions.

And so you have this document, the Constitution, that was created with this very limited vision of what the president’s powers and authorities would be and yet now we’re trying to kind of take this Constitution and squeeze it into this vastly expanded role where the U.S. in the dominant power in the world. Where it’s more or less permanently at war. Where the president has these vast powers.

Do you think that that is a significant part of what generates the tension in these areas?

SAVAGE: Well, there’s a certain ex ante question that you’re asking, which is: How do we think about the Constitution and its vision? Was it a vision for a particular kind of country, or was it a vision for a particular way in which the country would make its decisions, and one that might be flexible to go off in a very different direction as long as those decisions were made in the right way.

So there’s a little bit of an unanswered question in the Schlesinger model of calling that the imperial presidency because, to the extent that Congress makes the decision, or acquiesces, or goes along with and funds or affirmatively votes for keeping a large standing army deployed around the world, that’s certainly the United States acting in what might be called an imperial role, pejoratively. But is that an imperial presidency, or is that an imperial country?

And so when I think about the imperial presidency in particular, I’m more often thinking about executive power vis-à-vis the other two branches. Who’s going to make the decision to do X or to do Y? To what extent are there checks and balances on that decision-making process, and to what extent can it be done unilaterally by whoever is in the White House at the time?

GREENWALD: You’re right. There are some concepts that are ambiguous, that are the byproduct of flexibility and how things evolve over time, but then there are some really specific ones. Like, the Constitution simply says that it should be the power of the Congress to declare wars, and yet that seems almost quaint and antiquated because we allow the president to go to war all the time — to make war without Congress actually declaring war.

SAVAGE: That’s absolutely — I mean, that’s the place where in the domestic policy, sort of social politics sphere, things like abortion rights and gay marriage and so forth, liberals are always for the evolving, living constitution that changes as social conditions change, and conservatives are against that. And the power of the presidency to commit troops into hostilities and take war-like actions without prior explicit authorization from Congress is clearly cut from that same cloth, although you typically find more conservatives or neoconservatives who are in favor of that evolved interpretation of the Constitution, when it’s pretty black and white that that’s not how the founders envisioned it.

GREENWALD: Right. So let’s jump to the more modern era, and some of the controversies that are defining the Obama presidency in these areas. It’s funny because before I got my hands on your book, someone who had got their hands on your book told me that one of the principal themes you advance is that the world as Obama and his closest aides saw it on the civil liberties front changed, one could say fundamentally, with the attempted bombing of the Northwest Airlines plane over Detroit on Christmas Day in 2009 by Umar Farouk Abdulmutallab.

I actually remember being surprised when I heard that because you had written an article in February 2009, I guess a month into the Obama presidency, where you expressed the view that there was a, and I quote, “surprising degree of continuity” between Bush and Obama when it came to civil liberties and war powers and all of those post-9/11 controversies. And I actually wrote at the time, with a surprising amount of restraint —

SAVAGE: [Laughs]

GREENWALD: — that I thought you were being premature. I was actually defending Obama, and I said, “I think Charlie Savage is too hard on Obama. It’s way too early to say he’s copying Bush in these areas.” And I had to go back and say I was wrong, and Charlie Savage was right. There is this extraordinary continuity.

And this was many, many months before Abdulmutallab, obviously, and so I’m just wondering why you define the Abdulmutallab event as so significant in shaping Obama’s approach to civil liberties and the extent to which he ended up replicating the Bush approach, when many months earlier you were probably the first person to point out and to sound the alarm bells that there’s a huge amount of continuity and I think more than anybody really expected.

SAVAGE: Whoever told you that about their first read of my book I think was overstating my thesis. I do open with reconstructing Christmas Day, 2009, from the moment when Abdulmutallab was about to try to blow the plane up, up until the moment 12 hours later when he gets read the Miranda warning. Then I go off and talk about some big themes and come back in the third chapter to reconstructing the five or six weeks that followed that failed attack and what a sort of disaster it was for the Obama administration. And I do make the case that it was a pivotal moment in hardening their approach to counterterrorism.

But it’s not my thesis or argument that nothing had happened before then. You’re absolutely right that right away, it was very clear that there was going to be greater continuity, in terms of policy outcomes, on things like keeping indefinite detention as an available tool that they saw as legitimate, or keeping warrantless surveillance, or keeping military commissions — I mean, they closed them but they were leaving the door to reopening them — and continuing to invoke state secrets to try to get rid of lawsuits against surveillance policies and so forth.

Already, as the year progressed, there had been stumbles and compromises in places where they thought they were going to come in and fairly easily close Gitmo, and it became a hugely turbulent thing that they failed to do. But I think that they were still more or less [working] — though chastened, or feeling less naïve — to do a lot of changing by the end of 2009, until the sort of politics changed with the underwear attack.

GREENWALD: In your view, was it that the Abdulmutallab attempt to blow up this plane was significant in terms of changing how they behaved in this area because the politics changed? With the Scott Brown election, which you talk a lot about? The objections that they treated him too well, that they should have sent him to Gitmo? So was it that the politics changed, or that their personal view of these issues changed because they thought, “Oh my god, we almost had a plane blow up over our soil”?

SAVAGE: I think there were both internal and external factors in the reaction to that. First of all, the clinch of almost 300 people just got killed on U.S. soil on Christmas; all the systems we had failed; they really are out there trying to attack us. And just because Obama gave a pretty speech in Cairo didn’t change the fact that the United States remains at war with an organization that is in fact trying to kill civilians on U.S. soil. So there is that. But there is also the political fallout when their plan to prosecute Khalid Sheikh Mohammed and the other 9/11 conspirators in a traditional civilian court in New York totally falls apart.

Even though they hadn’t closed Gitmo in a year, they were sort of on track. They were starting to send people back to Yemen — which was the biggest problem, the Yemenis and what to do with them, so they sent some, and then sent another batch — and because that attack originated on Yemeni soil, Obama is sort of forced by the politics to impose a moratorium, and that means Gitmo is not going to close.

And as you mentioned before, Scott Brown surprises by winning the Ted Kennedy seat in deep blue Massachusetts. A Republican is suddenly getting a Senate seat, and it’s not just any seat. It’s the 60th vote for the filibuster-proof majority. And they saw, in addition to how awful it would have been had that attack succeeded, that it would have destroyed Obama’s presidency. That if there is a successful attack, this sort of great sweeping wind that he had had just a year earlier would mean nothing — he would lose re-election, and everything they were trying to do, not just in terms of ratcheting down what they saw as the excesses of the war on terror, but things totally unrelated, like expanding health insurance and so forth, would all collapse. And for that reason, when there’s a “they,” there’s many “they.” There’s many voices. And part of what this book shows you is how these meetings unfolded with different people and different factions pushing different ways.

Many people told me, some on the record, that Obama, this was one of many things he was paying attention to before Christmas. He would get his briefings, and he would sort of nod. And there were reformist voices in his administration, and there were … especially the national security state bureaucracy voices who were sort of worried about giving up powers. And suddenly, after that attack, Obama is much more forward leaning. He wants to know what more they can be doing. They’re determined not to let something like that happen. And the reformer voices get quiet. The “we better hold onto this detainee,” “we better keep this surveillance power,” “we better not disclose this to the public” voices get a lot louder.

GREENWALD: Right. I find it convincing, having read all of these testimonials that you include, that this was certainly a significant event. At the same time, I find it kind of remarkable that it was. The kind of caricature of Democrats and liberals that Republicans were painting during the Bush years about people like Obama who were criticizing them on civil liberties grounds was, “Oh, they get into the office and they become responsible for keeping Americans safe — they’re going to realize that a lot of these policies are actually really significant. It’s easy for them to criticize from the sidelines, from the halls of academia, from the Senate.”

It seems like in some sense, these Obama officials are standing up and saying, “That caricature that they painted of us was right.” And I guess what I’m left wondering is, during all of those months and years when Obama was critiquing these policies, and the people who ultimately became his top lawyers who had been at law schools or in other places writing critiques, didn’t they anticipate something like this? How could a single attempted terrorist attack by one 23-year-old coming from Yemen, which was completely predictable and in the ordinary course of what you would expect, so shake their worldview on all of these issues that they’d been talking about for years?

SAVAGE: I think you’re overstating it a little bit. I’ve already talked about how they were keeping certain authorities, and a big part of that was they thought that the problem with those authorities when Bush had first claimed and established them was that he had done so unilaterally, and often in violation of statute, so that when Congress changes federal law to explicitly authorize them — I’m thinking about something like the warrantless surveillance program, and so forth — that the problem is solved, and they are useful, and the world is at war with al Qaeda. That it’s a real war, it’s not just sort of a war on poverty but an actual armed conflict, and so you can do things like use military authority when it’s necessary.

They had already reached that point before they even came in. Obama thought this was war. The very liberal position is that it’s not war; there can’t even be a war against a non-state actor. So recognizing that is a big place where disagreements with him on the left flow from. Those who don’t think this is really war.

So they already knew that this was war, they intended to treat it as war. They intended to fight this war within a framework of law, unlike how they saw the Bush administration as having done it, especially in the first term. But it was still one of many things. And it was the Christmas attack that made it visceral and real to not just the people whose job it was to pay exclusive attention to national security matters, but people who had many different jobs. People like the political arm of the White House, people like Obama himself.

And it was that — not just their internal attitude but the change in the politics — the way the Republicans learned from the Scott Brown win that they could fight back against this guy who had just crushed them in ’08, and his party, which had just crushed them in ’08, and have success by making national security an issue, by making the reading of Miranda rights to terrorists an issue. That’s kind of what changes the politics and pushes it going forward into a much harder line.

And this is all very complicated stuff. There’s places where he does the same thing as Bush, there’s places where he does less than Bush, there’s places where he does more than Bush, there’s places where how you define what Bush did means he either did or didn’t act like Bush.

It’s important to pay attention to the nuances. Even when Obama continues to treat this as war, or continues to say, “We can hold on to these Guantánamo detainees who we can’t try but think we can’t release either under prisoner-of-war style detention.” He also changes quite a bit going forward where he has more flexibility, especially in the detention world.

It’s not just that he wants to close Guantánamo for symbolic reasons. He really thinks that using indefinite detention when you don’t have to is a bad idea, and he’s kind of fought in the political arena to establish that when we take in new prisoners, who aren’t going to be tortured and who can be convicted of material support for terror in civilian court — because that law has been expanded after 9/11 and so forth — that that’s really the way to go. And he’s refused to bring anyone new to Guantánamo.

So even as we talk about all of these continuities, we should also be cognizant of some substantive differences.

GREENWALD: Definitely, definitely. And we’ll definitely get into those in just a little bit. But just one last question on the Abdulmutallab event and how that changed some of their thinking, to some extent. In terms of the politics, one of the things that always struck me about the argument that it’s been politically difficult for Obama to win on these issues is that in 2008, he ran against sort of this war hero, very much in the line of the Republican, hard-line position on national security. Obama was this first-term, African-American, perceived as a liberal senator. And they did attack him on national security, constantly. There was a huge conflict in that election on a lot of these issues. On whether we should continue the Bush/Cheney war on terror approach, or whether we should fundamentally reform it. And closing Gitmo was the symbolic issue, but there were a lot of debates about that, and Obama won. He won easily on those issues.

SAVAGE: Well, McCain agreed with Obama about closing Gitmo.

GREENWALD: And about torture as well. But not about the U.S. posture in the world, not about a lot of civil liberties issues surrounding habeas corpus. There were a lot of attacks on the Obama national security, civil liberties approach. Why didn’t they have the confidence that they could continue to win those debates?

SAVAGE: So the two moments early on, if you go through the book, that show their sort of loss of confidence — one we’ve been talking a lot about, which is the fallout from the Christmas underwear bombing. And the other earlier moment was in early summer of 2009, when there was this difficult case of these Chinese Muslims called Uyghurs at Guantánamo who everyone agreed had been brought there by mistake. And a judge had ordered them freed, and the U.S. government did not think it had legal authority to keep holding them because they weren’t al Qaeda — they weren’t our enemies — but there was no place to send them.

We couldn’t send them back to China because they’d be tortured or killed, and China was using its diplomatic pressure to prevent other countries from taking them in. So they decided that they would bring a couple of them — the ones who spoke English the best, and so forth, to the United States, and release them under monitoring, in a Uyghur ethnic community here where I live, in Northern Virginia.

And when the local congressman, Frank Wolf, found out about that, he sort of went to war, and went down to the floor of Congress and started talking about releasing dangerous terrorists in your backyard, and the Republicans kind of picked up on that theme. And of course the nuance of who these guys really were never really comes through when these things get demagogued like that.

And the White House totally retreated, immediately. And the reason they retreated was the political voices in the White House didn’t want to cause ruffles with Congress. They were trying to pass health care reform, and so forth. And they just didn’t want to fight the fight. And so they pulled back from that plan. And that taught Congress that they could be rolled on these issues. And that’s when Congress first imposes restrictions on Obama’s ability to transfer detainees that later get tightened significantly. And he signs them without complaint. That’s the first moment when I think really the turbulence hits. And they sort of display that they lose their nerve.

Looking back, in retrospect, I think a lot of them see that as a major mistake. They should have stood up to Congress at the time. They should have just moved everyone from Guantánamo in that first six-month period and made it a fait accompli. When they announced that they were going to have a civilian trial for the 9/11 guys, they should have just moved them to New York and commenced. And they had this sort of poorly executed policy strategy of just saying they were going to do something and then not doing it, and leaving it up there like a piñata for people to whack on until it was in shreds.

GREENWALD: Right around the time of the Christmas Day attempted bombing, there was the suicide attack that killed, I think, six CIA agents in Afghanistan.

SAVAGE: That’s right.

GREENWALD: And you talked about how that had a similar effect. A sort of hardening. And described how one CIA lawyer in particular, I think it was Stephen Preston —

SAVAGE: That’s right.

GREENWALD: — said, “now it’s personal,” because he actually knew one of the CIA agents who had been killed in that attack. And yet also right around that time, there was an airstrike in Yemen, in Al-Majalah, that ended up killing a huge number of civilians.

SAVAGE: A terrible airstrike. December 17.

GREENWALD: December 17. It killed, I think, 21 women, 14 children. It turned out they had used cluster bombs as part of that attack. And you described how Jeh Johnson, who at the time was a Pentagon lawyer, he eventually went to Homeland Security, would actually watch the footage of the aftermath of these strikes. I totally get that if you know someone who is killed in a suicide attack, that kind of hardens you, because now it’s personal, as Stephen Preston said.

Do you hear that on the other side of the equation, that watching the aftermath of this sort of civilian slaughter, whether intended or not — they didn’t, obviously, target civilians — but something that’s happened over and over and over again. Does that kind of emotionally and personally affect them to question what it is they’re doing in the world and whether or not these policies are the right ones? Is this a sentiment that you encounter frequently or periodically?

SAVAGE: Well, yes. When a strike goes bad and it turns out that the intelligence was wrong — in that case, there was a civilian camp right next to the apparent al Qaeda camp and they didn’t know it, and they killed all these people — there were other bad strikes, too, that I recount in the book — and it does lead to this internal clinch, and sometimes, changes.

There was a particularly bad signature strike in Pakistan in early 2011 that also killed lots of civilians. These things have to be up to the officials, both the CIA station chief and also the ambassador there — the State Department had objections, and the CIA went ahead and did it, and it turned out to be this disaster. And it led to reform and sort of an attempt to ratchet back some of the signature strike authority or the aperture of the lens they were going to use and more internal people have to sign off and if people disagree, it has to get bumped up.

So it’s not like they were unaware when these things went wrong or cavalier about it. That said, when you shoot missiles from drones far from where you are or have people on the ground, you are inherently taking the risk that things are going to go wrong from time to time.

GREENWALD: If you were to say to Obama or a lot of his key advisers and the officials who’ve implemented these policies: “Hey look, there’s this critique of you that you’re a huge hypocrite because you were out there all those years criticizing Bush for all these policies that you ended up then embracing,” one of their defenses, if not their primary defense, would be:

“No, that’s totally wrong, our primary critique of the Bush administration was not that they exercised these powers, but that they exercised them lawlessly. That instead of going to Congress saying ‘we want to do this,’ they would just do it on their own, or they didn’t get judicial approval, and our critique of them was one of lawlessness, that they were doing these things without legal authority. And so even in these cases where we end up looking like we were doing the same thing, we actually got Congressional approval and so we were doing it under the law. That is a fundamental difference.”

That, I think, is one of the core themes of your book. And I have a few questions about that. I think most people would agree that you can sort of divide the Bush administration on these issues, roughly speaking, between the first and the second term.

So the first term, right after 9/11, was one of extreme secrecy. They did do all these things on their own. They didn’t go to Congress. Nobody knew what they were doing. They implemented warrantless surveillance, they were torturing people, they were detaining people on black sites. There was no legal framework for any of the stuff that they were doing.

But in the second term, and you talk about this in your book, there’s a lot of instances where they did go and get a legal framework from Congress like the Military Commissions Act, the FISA Amendments Act, prior to the Protect America Act.

When Obama was running for president and making all of these critiques, he wasn’t running in 2002 and 2003, he was running in 2006, 2007, 2008. So even though you might be able to parse a lot of his statements so that they seem to be critiquing the lawlessness of those policies rather than the policies themselves, certainly a reasonable observer listening to him complain about the Bush administration in these areas would think that his objections were not just to the legal — the process — part of it, but to the actual substance of it because by then, so much of it was under legal authority.

SAVAGE: I’m not sure what we disagree about. That sounds more or less as I lay it out in chapter two. He was running for the Democratic nomination against Hillary Clinton with a liberal base that was incensed about the Bush administration, some of which had the view that the problem was Bush was violating the rule of law, many of which had the view that Bush was violating civil liberties, and he wanted all of their votes. And so he spoke in ways that appealed to all.

And it’s only in retrospect that you got back — you said “parse it” — you can see that it was very carefully formulated in a way that the rule of law issue was the paramount one. And in fact, one of the behind-the-scenes stories I tell in this investigative history is how when Obama was going to give his big national security speech at the Woodrow Wilson Center in August of 2007, this was where he would sort of present his unified vision and say, “Take me seriously as a foreign policy potential president,” an early draft of the speech said he was against military commissions, full stop, period. And his legal advisers, including especially Jeh Johnson, who went on to become his Pentagon general counsel, and then Homeland Security secretary, edited that speech and said, “You should not flatly rule this out because you don’t know what you’re going to need to do when you’re president, and you might find that military commissions are necessary.”

And so they rewrote that section of the speech so that he was against the Military Commissions Act of 2006, the first one, and listening to that, I think a lot of people came away with the message, “Oh, he was against tribunals,” when it turned out that all he was against were tribunals under that particular act, so that when Congress passed another one in 2009, which tweaked the rules a little bit, he could say, “Well, this one is fine.” This was part of deciphering the mystery of the disconnect between the expectations created by his campaign rhetoric and how he actually governed.

Over and over again, you’re right, in the second term of the Bush administration, as Congress was legalizing stuff that the Bush administration had put in place arguably lawlessly, he was criticizing it without making clear that he was against the earlier iteration of it, and not necessarily the way it was going forward. Sometimes, with his vote. He voted for the FISA Amendments Act, for example.

GREENWALD: Right. There was very little sense of “My big objection is with the Bush administration as it existed in the first term, but as it exists in the second term, I think actually everything is really great because now there’s a legal framework to it.”

And I totally understand that this rendition of events is a rendition that you’re conveying as being theirs and not yours. So when I’m critiquing it, I’m critiquing it from the perspective that they seem to have in terms of explaining their events.

SAVAGE: Let me add one other thought just on that theme. The first thing Senator Obama does when he clinches the nomination, and his opponent is no longer Hillary Clinton but it’s going to be Mitt Romney, he votes in favor of the FISA Amendments Act which legalizes the warrantless surveillance program and immunizes the telecoms, even though he had said …

GREENWALD: Unambiguously, that he would filibuster that.

SAVAGE: Yes. And I tell the story of that, and some of the behind the scenes-y stuff about that, in a subsection chapter called “Foreshadowing.” So he’s not president yet, but already there we see the shift to “This stuff is okay as long as it has legal authority. It’s not inherently wrong.” And in retrospect, seeing how that played out in many other ways, I think that moment was of singular importance.

GREENWALD: I do think there were some cases where Obama was pretty clearly objecting to the substance of the policies themselves. I remember one speech where he gave in 2006 where he stood up and it was probably the thing that made me pay the most attention to him at the time, where he talked about the idea that as a parent, the idea that a government could simply abduct his daughter and accuse her of a crime and put her in prison but not give her a chance to have one opportunity in order to contest it as part of this habeas corpus debate was horrifying to him, and then as president he tried to deny Bagram detainees habeas corpus and I realized that there’s distinctions drawn between what happens at Bagram and what happens at Gitmo.

On this distinction itself between what Bush did that was lawless and then what Obama did which was under a legal justification and how that’s a key difference. If you were to present that argument to Bush officials, what they would say, “Look, we didn’t take the position that we have the right to break the law. We were sure that everything we did had legal justification. We went to the Justice Department and we got the OLC right memo saying torture wasn’t torture. We got memos from them saying that we had the right to surveil. We went to the FISA Court.”

And so it wasn’t that they took that position that they can just do whatever they want and it doesn’t matter what the law was, the critique is: “we made the law fit our policies rather than making the policies conform to the law.”

You describe a couple of controversies in your book under the Obama administration that strike me as very much the same thing. These are two fascinating things that I hadn’t thought much about. One was the memo written by David Barron and Marty Lederman justifying the targeting of Anwar al Awlaki. They wrote what they thought was a really comprehensive memo saying that the president had the right to target Anwar al Awlaki notwithstanding that he was an American citizen. And then, after that, Kevin Jon Heller, the law professor and blogger, found a law that seemed to really clearly prohibit it that they didn’t even talk about and hadn’t thought about. Then they had to go back and scamper around and justify it.

Then there was another case involving Omar Khadr, the 15-year-old that they picked up in Afghanistan who, as a civilian, threw a grenade at an American soldier and killed him. They were prosecuting him as a war criminal. And the theory they were using directly conflicted, it seemed, with the theory that it was okay to target Awlaki even if you weren’t a member of the military, if you were in the CIA and not wearing a uniform. Do you think it’s fair to describe both of those cases and ones where they manipulated the law to confirm to what it is they wanted to do, much like John Yoo manipulated the law to justify those policies.

SAVAGE: No, I don’t think it’s fair for a couple of reasons. That doesn’t mean that they moments are beyond reproach or criticism, but I think it is apples and oranges for the following reasons: First of all, the first term Bush legal team’s ethos was a particular vision of the Constitution whereby the president, as commander-in-chief, cannot be bound by statutes and treaties that inhibit something that he thinks is necessary for national security. I mean, that’s what their real answer would be: “it’s not that we were lawless, it’s that our vision of the law is that we could do …anything.”

Occasionally, they would go to the Justice Department and get the box checked formally, and I tell some newly-emerging stories about some really extraordinary fights in the Bush administration, especially in the summer of 2004 about torture, when they got John Ashcroft to write a one-sentence memo saying, “This is all legal; legal analysis to come.”

So that’s a little bit different than really wrestling with the legal issues. You’re right on the first Awlaki memo they didn’t address a certain statute that Kevin brought to their attention via the Opinio Juris blog and then they went back and did a much more comprehensive memo that says …

GREENWALD: And still concluded that Obama had the authority that they said originally that he had.

SAVAGE: Yes, they still concluded that, notwithstanding the fact that the statute says that Americans can’t conspire to kill other Americans abroad — the foreign murder statute — that didn’t apply to a war zone or wartime killing.

And the Khadr thing, my understanding is that issue had been percolating for a while. They were trying to prosecute Khadr for fighting and killing while not wearing a uniform, while not complying with the laws of war himself. And they said that’s an international war crime. And this dates back to the Bush era military commissions. So if that’s true aren’t CIA officials, who are civilians and may be pushing the button on a drone, also killing while not being part of an armed forces?

But it’s not that they first learned of that because of the Khadr manual, this was an issue that had been percolating (I think Lederman had written about it before he first went into the government) and it’s just that some other lawyers in the Defense Department weren’t aware of it and were reproducing this language. And so on the eve of the Khadr trial, just as they’re working on this Awlaki memo, it comes the broader attention that they have this problem. In fact, it’s never been considered a war crime to kill in battle without wearing a uniform. It just means you don’t have battlefield immunity; you can be charged under domestic law for murder. And so they fix it but it sort of leaves a cloud over the Khadr prosecution.

I thought you were going to talk about a few other instances where they seemed to push aggressively, like the Libya War Powers Resolution.

GREENWALD: That’s exactly my next question. If you are going to talk about the theory that the president can do whatever he wants notwithstanding what Congress decides, the House of Representatives not only was silent but voted to reject the authorization to fight in Libya, and Obama ignored that and fought there as well. I mean, that would be a pretty good example of first-term Bush/Cheney …

SAVAGE: That’s a slightly tendentious way of explaining exactly how screwed up things were in the House of Representatives. They actually voted on three different propositions: authorize the war as it is; authorize the war, but only with the U.S. supporting other allies, but U.S. assets wouldn’t be directly carrying out strikes; or require the operation to be pulled back and terminated. And there was not a majority for any of those three options. Basically a third of the House wanted each of those.

GREENWALD: Right, but that does mean that authorization came up before the House and failed. That to me seems like an example of the kind of way you were describing the Bush/Cheney worldview: that the president has the authority to take certain action notwithstanding whether Congress wants them to or not.

SAVAGE: No, I think it’s more like the president has the authority to act in the teeth of a statute that says he can’t, as opposed to the president can act when Congress has not gotten its act together enough to do anything. And they came up with the theory that a limited air war authorized by the U.N. in multilateral operation without ground forces is not the sort of hostilities that Congress had in mind after Vietnam after they passed this law. They don’t say this law does apply to this situation, but the president, as commander-in-chief, can trammel it. They, in fact, deliberately don’t go there.

But it raises this interesting question that I think is behind what you are trying to get at — and this is a question I asked all these people I talked to because I am fascinated by it too. So if the Bush administration goes to a John Yoo or a David Addington and he writes a two-page memo that says, “The president is commander-in-chief. We can do X. Let’s get lunch.”

And the Obama administration goes to its legal team and they spend months and they write a hundred-page memo that agonizes over every nuance and permutation and is full of footnotes and goes through all of the possible objections and comes up with reasons why those objections don’t apply in this instance and finally conclude, “We can do X.” Does that make a difference? Or does one just have more papers filling up the file folder, but at the end of the day the government is still doing X?

So when I challenged various members of Obama’s legal team with that proposition, their answer was: “Yes it does make a difference, even when the answer is the same, to have really robust legal thinking and process because, in some sense, the process is an end to itself. It makes you really think about the hard issues and think through them and may bend your thinking toward a different outcome so that you never get to the point that when you want to do X it is forbidden by some law.”

And then their other answer was: “In fact, sometimes the lawyers do say no and we don’t do something that we otherwise wanted to do.”

GREENWALD: As you say, one of the critiques during the Bush years by people like David Barron and Marty Lederman who ended up in the [Obama] Office of Legal Counsel, was: OLC in particular is not there to be the lawyer for the president, they’re there to tell the president no sometimes. Are there significant examples where Obama wanted to do a certain policy and OLC lawyers told him, “No, you can’t do this. This is not legal.”

SAVAGE: So I went looking for a lot of those. I didn’t find that many, but I found some. One off the top of my head, there was a Hezbollah terrorist named Daqduq who was the last U.S. prisoner in Iraq as U.S. forces were pulling out at the end of 2011. He was implicated and apparently confessed without torture (I don’t know if that’s true, but that is what they said) to being involved in an operation that killed some American soldiers by using subterfuge, dressing up in Iraqi uniforms and kidnapping them and shooting them and leaving them by the side of the road.

So he had American blood on his hands and he seemed like a genuinely dangerous person and they really wanted to keep him locked up. But their detention operations were winding down and they had to figure out what to do with him. Our Memorandum of Agreement with the Iraqi government, which the Bush administration had agreed and signed, the Iraqi government had final say over the disposition of any wartime prisoners in Iraq.

The Iraqis would not allow us to take him and bring him either to the United States for a civilian trial or to Guantanamo. And we were afraid that if we gave him to the Iraqis they would just let him go. They really wanted to keep him locked up. In the end, they could not find a way to do it without violating Iraqi sovereignty and eight or ten months later they did let him go and they all were bitter about that, but the lawyers just couldn’t find a way to do it.

GREENWALD: Right. That’s definitely an example. But it is reasonable to say that the OLC was not really any meaningful impediment to the broad policies or most significant actions that Obama wanted to take.

SAVAGE: Well, most of the actions that he wanted to take were congruent with what OLC concluded would be lawful for him to take. Its advice as this larger inter-agency lawyers groups that I chronicle may have helped to push and shape and discipline the deliberations towards that direction sometimes. I also point out places — especially the War Power Resolution fight over Libya, where he acted different from how OLC thought the best interpretation of the law came out.

GREENWALD: Let’s talk about something else that’s complicated, which is the targeting of Anwar al Awlaki. The key distinction that you depict in the book is that, for a long time, Anwar al Awlaki was a propagandist, a dangerous propagandist in the eyes of the U.S. government because he was reaching an English-speaking audience with appeals to jihad, convincing lots of people that it was their duty, obligation and right to bring violence to the U.S., but not actually a terrorist operative. It was only once Abdulmutallab, under questioning, said that Awlaki was actually part of the plot to blow up this airliner, did they conclude that he was more than a propagandist, he had now become an operative and now they could target him with killing.

As you acknowledge in the book, there is a pretty impressive list of sources, including Dana Priest at the Washington Post, who reported at the end of 2009 that Awlaki was on one of their kill lists; my colleague Jeremy Scahill, who insists that they tried to kill Awlaki twice with airstrikes in Yemen at the end of 2009; Long War Journal, as well, which has lots of sources who insist that they were trying to kill him before they ever talked to Abdulmutallab.

You say you are convinced they’re wrong because a lot of the people who you talked to who were in a position to decide this were very clear that they didn’t put him on the kill list until they were convinced that he became an operative.

One of my questions, having talked to Jeremy and hearing his side, is it possible that both are true — namely that people at the highest levels of the Pentagon and the White House hadn’t formally directed that Awlaki be targeted but, operationally, the people ordering these strikes were nonetheless trying to kill him before Abdulmutallab implicated him as an operative?

SAVAGE: Let me unpack that in a couple of directions. For the background of your listeners, there was a strike on December 24, the day before the underwear bombing, in which the Yemeni government put out a statement (when it was still pretending that it was conducting the drone strikes, when it was the U.S.) which said that we struck an al Qaeda in the Arabian Peninsula (AQAP) meeting and Wuhayshi and al Shehri, the number one and number two leaders of AQAP were there and we also think that Awlaki was present. And then it turns out that none of them were there and they all survived.

From that, I think there has been a lot of reporting that assumed that Awlaki was the target without actually having a source that was saying that, and I would put Long War Journal in that category.

Separately, in the Washington Post, Dana Priest reports in January of 2010 that she had been told that Awlaki was not the focus of that strike, but that he had been approved for targeting sometime in the final week of ’09.

GREENWALD: Which would have been before Abdulmutallab implicated him.

SAVAGE: There were no other strikes there, right.


SAVAGE: So, I just think she’s completely wrong. She had some source of garbled sourcing in that article. To her credit, she was the first to write about targeting him at all, so she was clearly getting something but it was through a glass darkly and she had to retract a big chunk of that article later and I suspect that it was the same bad sourcing that led to this stray claim a couple of paragraph from the end of that article.

So that leaves the December 24 strike … you’ll note that Jeremy doesn’t say in his book that he had a source telling him that, he just sort of states that Awlaki was the target. And I’ve talked to lots of people …

GREENWALD: He says he has sources. He says he has operational sources.

SAVAGE: Well, I’ve talked to him about it too. I’m just talking about his book Dirty Wars.

So I’ve talked to lots of people and they were just like, “No, that’s not correct. And, in fact, it would be ludicrous for us to target him at that point without any lawyering about the citizenship issue.” This is the most lawyerly administration ever. If nothing else they wanted that hundred-page memo with all the footnotes and so forth before they did something that edgy. But beyond that I actually have an on-the-record source — Mike Leiter, among others, saying, “No, it was in late January after Abdulmutallab fingers him that we have enough that by our standards, we can actually target him.”

But beyond that, it’s illogical. If they thought that al Shehri and Wuhaysi, the number one and number two leaders of al Qaeda in the Arabian Peninsula, were there, that’s all you need to pull the trigger at that point. And so there’s been this sort of mythology of Awlaki, especially in the West, because he’s an American citizen, and because he goes on and becomes so fraught, that he was this singularly important person in AQAP.

Wuhaysi is the singularly important person in AQAP. Whether someone — and if they thought they were there — they would certainly not have been sad to have hit him as, sort of, “enemy killed in action standing near the target.” But to say that he was the target or if he was alone on a road somewhere and there was no lawful target next to him, they could still pull the trigger, I just think fundamentally misunderstands what actually happened.

GREENWALD: Ok. Now let’s assume, for the moment, that they didn’t target Awlaki until Abdulmutallab in some way implicated him as an actual operative. To me, that doesn’t remotely resolve the debate. I mean there are still huge problems with having the U.S. government meet in secret and decide that someone is guilty based on evidence that can’t be tested and that no one can see.

SAVAGE: Especially that latter part. The fact that they didn’t, and still to this day, haven’t made public their evidence is outrageous.

GREENWALD: I mean, if you think about the evidence they point to primarily, which is Abdulmutallab saying that Awlaki is involved, at that point Abdulmutallab had been severely burned in his groin. He had undergone surgery. He was in their custody for many weeks. For a long time, he wasn’t talking. Then they brought in his family members, and, as part of a plea bargain, he began speaking. I think it was in order to prevent him from getting the death penalty.

We don’t know the extent to which he was pressured to implicate Awlaki, we don’t know exactly what he said about Awlaki. I mean, in an ordinary situation where you’re actually going to punish somebody, let alone kill them, based on a conclusion that they’re guilty of something — these are all kinds of questions that would be very carefully examined and here, none of these are examined.

Is there a very definitive sentiment among most of the people that you spoke to that killing Awlaki is, as you say Obama believed, something they had very little discomfort about, or do they have an understanding about why, for a lot of people, imposing the death sentence on an American citizen based on evidence that nobody can see, and whether you think it’s Constitutional or not, certainly no real due process in the way we think about that, why that’s really problematic.

SAVAGE: I couldn’t find anyone in the administration, from the most doveish wing to the most hawkish wing, who didn’t think that Alwaki was who they said they were, and seemed to have second thoughts about the notion that he was, in fact, coming up with plots. And if he wasn’t taken out one way or another, sooner or later one of those plots were going to succeed.

I do not know what other evidence they had besides the Abdulmutallab confession, which is apparently quite detailed — some of it came out at Abdulmutallab’s sentencing — but we still haven’t seen the raw transcripts and they’re not making those public. And they should. I don’t know what kind of electronic surveillance or other kind of corroboration they had. They’re not making that public, and they should.

In some ways, though, there is also a dilemma here, which I think critics of that operation need to grapple more firmly with. And I’m not saying this as, you know, to defend them, and more to issue spot and say this is really interesting stuff. The idea of a death sentence without a trial already is assuming this isn’t war, because killing an enemy in war is not a death sentence. It’s killing an enemy in war.

But beyond that, so he’s not in U.S. custody. And we don’t have boots on the ground in Yemen who can go arrest him, and the Yemeni government is hapless. Now, it doesn’t even exist, basically, so they can’t go arrest him. So let’s stipulate for a minute that it’s true that he is sitting there coming up with plots like the Christmas 2009 bombing, and the cartridge plot, and so forth, and sending young dupes like Abdulmutallab out to their death to try to kill a lot of innocent people. And he can’t be arrested.

Well he can’t be tried either, because we don’t have trials in absentia. I don’t think that’s what civil liberties advocates want brought into the United States. So that leaves this dilemma of, if you have an opportunity to take a shot from the air and stop him, do you do that, or do you just sort of sit back and let him keep taking shots at the U.S., and sooner or later, he’s going to succeed at killing a lot of innocent people.

There’s not really a great answer there. But the people who say, “Well, if we couldn’t try him we shouldn’t have done it,” I think aren’t really grappling with the problem of not having trials in absentia. To me the thing that’s really disturbing about it is the secrecy. They were so secretive about their legal analysis, not putting it out there so people could grapple with it, and see what the scope and limits of it were, and argue about it, and make sure they got it right, and it took some leaks to me to get some of it out, and then it took a massive lawsuit by myself and Scott Shane and the ACLU to get a lot of the rest of it out, years later, and then the fact that to this day they have not put out the intelligence — the evidence — to me, I think they should.

For me, something of this magnitude, to continue to keep it concealed, obviously there must be some sources and methods that would be put in jeopardy, but it’s years later now. It’s something that needs to be part of the public record in our democracy.

GREENWALD: Right, and there are answers to all of those points that you just raised, including “Why not indict him and show some of your evidence that way?” which you do address in your book about why they didn’t want to and why they thought that would be a bad precedent. There’s also the fact that this should only be done if somebody’s really a big enough person to kill this way. And then they have operations as they proved with Osama bin Laden where even if you don’t have boots on the ground, you can still actually go to where the person is and get them. And you know, we could have this debate forever but we can’t because this podcast will be three hours long, and it’s a good reason to go and read your book.

SAVAGE: [Laughs] How many people are left with us, Glenn? It’s just you and me talking to each other.

GREENWALD: I think people are going to stay engaged, because these issues have been huge controversies and we are getting new information in the book about a lot of the things that the administration says. And there are a few topics that I’m going to skip over because I want to have only one more question — including Obama’s decision not to prosecute or even investigate for torture and, in 2009, his decision to let the metadata program continue notwithstanding lots of violations that were happening. Things that you discuss at length in your book, which people can go and read.

SAVAGE: On the latter, Politico — which, by the time this airs, it should already be up — is going to run an excerpt from the book that has most of that opening scene from chapter five, the meeting where Obama learns about the metadata program and decides to keep it, so if people are interested and you aren’t sure if you actually want to buy the book, go to Politico and you can read that part.

GREENWALD: Excellent. So, the last question that I will ask is about your discussion of what you call the “leak crackdown” under the Obama administration, which you define in this way: “By Obama’s seventh year in power, he had overseen nine criminal cases involving unauthorized disclosure of government secrets for public consumption. By contrast, under all previous presidents combined, there had been just three such cases.” So Obama tripled the number of all prior presidents combined.

SAVAGE: So far.

GREENWALD: So far, right, and there’s still some time left. But one of the things I wanted to ask you about is, you describe how this has made your job as an investigative journalist more difficult — the climate that it has created, along with the climate of the surveillance state. And how both of those have combined to make your doing journalism almost impossible in some really critical cases, including some of the work you wanted to do in finding out about these surveillance programs prior to Edward Snowden’s coming forward and disclosing a lot of it.

Talk a little bit about that experience. Why, and in what ways — I think it’s abstract for a lot of people who aren’t journalists to understand why the climate that’s been created makes a free press and makes journalism so much more difficult.

SAVAGE: So, as a premise to this, when you say the surveillance state, part of my argument is Obama didn’t really intend to do this, he didn’t make a decision to do it — or Eric Holder — it just sort of happened, which is more disturbing, I think, in part because metadata now makes it impossible to hide who is in contact with whom, or almost impossible, if you’re not technically adept enough to use certain techniques. And even then, you know, query whether it’s really safe.

It’s much easier now to see both who had the secret and has some sort of social link to the reporter who wrote the story than it was five or ten years ago. So cases are solvable now that were never solvable before. That’s something that’s going to be very hard to turn off.

Suddenly people are going to prison for leaking when before, they might have been fired or they might lose their security clearance or they might just not get invited to the meeting. There wasn’t a case that could stand up in court, and now there is.

This created, especially at the peak of the leak crackdown, which is sort of 2010 to 2013, a climate in which the ordinary leaks, of the sort where it’s one discreet piece of information someone wants to get out there, or a reporter has a question about — it may not be whistleblowing, it may just be something that’s true about the world — became chilled.

A lot of this I can’t talk about because I don’t talk about my confidential conversations with sources, but I got one non-source to let me bring one of those conversations on the record to illustrate it, which was Michael Sussmann, who is a Perkins Coie lawyer and former Justice Department official who was representing Sprint.

So when Senator Wyden and Senator Udall start saying there’s something funny going on with the Patriot Act that people would be outraged about if they knew that it was being interpreted in some totally twisted way, but we can’t say what it is. And so I was going around and talking to as many people as I could, and none of them would talk to me about it.

In particular, I thought Sussmann might know something. When I asked him about it, he pointed to pictures of his children on his desk and he says he was not going to help me because he’s got kids, and when the FBI comes and asks him whether he helped me, he wanted to be able to pass a lie detector test and say that he didn’t.

And then I come to find out after all this comes out that he hated this program, and he could easily have told me just enough information that I would have figured it out. He could have said, “Everyone’s forgotten that USA Today wrote an article about something interesting in 2006. Go find that article.” And I would have been able to put two and two together and get it. But he was chilled from doing that.

And so the pressure release valve of ordinary leaks was jammed shut by the leak crackdown, and it just continued to build until Edward Snowden blew it open.

GREENWALD: Well Charlie, thanks so much for giving me so much time. I know I took more time than I told you I was intending to …

SAVAGE: Glenn, I will talk about this book forever. So it’s been a pleasure.

GREENWALD: And I could too. As you know. I think the reason why the book is so interesting is because so much of this has been done under secrecy, and very few times have the people who have done it had to account for what they’ve done, and you really get a full sense of at least what they’re thinking, and sometimes you get a little persuaded, and sometimes you get really angry. But it’s very thought provoking, and a really worthwhile way to spend your time for people who are interested in these topics.

SAVAGE: Thank you, Glenn.

GREENWALD: It’s a great book, congratulations, and thanks so much for taking the time.

SAVAGE: Alright.

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