This is an excellent book; it is a well-researched and well-written history of President Barack Obama's approach to national security decision-making. The author shows how international and domestic law both enabled and restrained/constrained the President's response to evolving national security events. The author explains the President's overall mindset (preferring a rule of law over a civil liberties approach) and the disciplined, lawyerly process that allowed for a full-airing of interagency views. This would a great book for anyone interested in national security law.
The author provides insightful analysis on many important issues involving the executive branch lawyer. For example, he discusses the roles and responsibilities of the White House Legal Office and the Office of Legal Counsel at the Department of Justice, interagency lawyering (i.e., the "Lawyer's Group"), and congressional relations. He shows how different legal theories were considered and debated (e.g., the application of the 1973 War Powers Resolution during the Libyan and Syrian conflicts). He also examines the President's obligations under the "Take Care" clause, with respect to the use of Executive Orders, presidential signing statements, declining to allow the Justice Department and the Solicitor General to defend unconstitutional statutes in federal court (e.g., DOMA), and congressional restrictions on foreign policy issues (e.g., Honduras coup, 2009).
He offers some things that I did not know, such as the collection of bulk electronic surveillance by the Drug Enforcement Administration or its Foreign-Deployed Advisory Support Teams, issues with respect to the President's "red line" statement on Syria (how an impromptu comment created a problem for later action), problems with Congress over the Bergdahl-Taliban prisoner exchange, or the government's use of EO 12333 for "back door" collection on American citizens who have information stored abroad. On the DEA issues, I am left wondering whether there has been appropriate oversight over its activities abroad (the Foreign Service Act of 1980 and Chief of Mission authority) or at home through appropriate coordination in the Department of Justice. I also appreciated the irony over prisoner rights at Bagram: On one hand, the Congress would not allow the President adequate flexibility in terms of whether certain Guantanamo detainees could have been transferred, and--even though the detainees had habeas rights--they could not get released. On the other hand, the Bagram detainees did not have habeas, but the President had more flexibility and could make more appropriate decisions. In general terms, the reader sees how Congress has interfered with and obstructed the President in his foreign policy role; this is problematic in my mind given the broad role that the Constitution grants the President in foreign affairs (the Curtis-Wright case).
There are shortcomings with the hard cover edition. First, the book lacks either an index or bibliography, making it difficult to cross-check certain points and follow-up on other things for my own research. Second, the author has got some facts wrong. The author mentions--as a fact--that few law schools taught national security law before 9/11; this is not true, many schools did teach that course, but very few offered an LLM in that subject. The author refers periodically to the FISA Court, but the Court is properly known as the Foreign Intelligence Surveillance Court (FISC), and that court uses sitting article III judges not justices. He refers to Lt. Gen James Clapper as the Director, Defense Intelligence Agency, in 2009; Lt. Gen. Clapper had been the agency director in 1991-1995, but by 2009 had long since retired from the Air Force and was then serving in a civilian capacity as the Under Secretary of Defense. In one section, the author refers to how the Obama administration fought to prevent the extension of Guantanamo-style rights to detainees at Guantanamo (??!!); I think he means to refer to a possible extension of rights to Bagram. The author refers to the July 2010 al-Shabaab attack in Kampala as occurring at a soccer stadium; there were actually two attacks, one at a restaurant and the other at a Rugby club--the victims had been watching a telecast from South Africa. Third, the Stellarwind chapter was lengthy, but it could have provided a clearer history. Readers interested in either the 215 or 702 programs might want to refer to the extensive reports released by the Privacy and Civil Liberties Oversight Board. Overall, I think the author offers many good insights into the work by the Obama legal team.
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