by Andrew Crisp
The following preview of Charlie Savage's March 18 appearance at the Andrus Center's "National Security and Freedom of the Press" at Boise State University's Jordan Ballroom first appeared March 12 in The Blue Review.
Pulitzer Prize-winning author and New York Times Washington, D.C., correspondent Charlie Savage has regularly reported on government surveillance conducted by the National Security Agency, and on the controversial Foreign Intelligence Surveillance (FISA) Court. He is also author of the award-winning Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. Savage fielded questions from The Blue Review via email.
The Blue Review: Your upcoming Freedom of the Press talk in Boise is to revolve around national security and freedom of the press. How are those two concepts linked?
CS: In a democracy, press freedoms are particularly important in matters of national security, when what the government is doing is often kept secret by default, and so investigative journalism is necessary for voters to understand what is being done in their names and to keep the government accountable. At the same time, press freedoms are most acutely threatened when reporters are bringing to light information about military and intelligence matters because the government is able to treat disclosures in that area as a crime, if not by the reporter then by the source.
TBR: Takeover [Savage's 2007 book on President George W. Bush, Vice President Dick Cheney and the "return of the imperial presidency"] focuses largely on the Bush administration’s use of presidential power. Has the Obama administration rolled back, or expanded, executive power and authority? How?
CS: President Obama has continued the basic outlines of many of the national-security policies he inherited from President Bush, with small adjustments. In some places he has gone further (targeted killings) and in some places he has pulled back (torture, holding U.S. citizens as enemy combatants). Observing the continuity of policies that involve large amounts of authority in the executive branch (indefinite detention at Guantanamo and Bagram, military commissions, surveillance without warrants, etc.) is not the end of the inquiry, however. During the Bush administration, there were two strands of critique of the policies put in place after 9/11: a civil liberties critique (the government should not have this power vs. the individual) and a rule of law critique (the president should not have the power to defy federal statutes and ratified treaties). Over time, many of the policies that Bush put in place unilaterally became normalized, from a legal standpoint, as Congress adjusted federal statutes so that they authorized rather than prohibited his policies (e.g., the Military Commissions Act, the FISA Amendments Act). As a result the policies Bush bequeathed to Obama in January 2009 looked very different than the ones he put in place initially, from a rule of law perspective. Understanding whether Obama is acting like Bush turns on whether one is looking at him from a government-as-a-whole civil liberties perspective or from a separation-of-powers rule of law perspective.
TBR: President Bush has been criticized for his use of “signing statements.” Has President Obama initiated any of his own efforts to bolster presidential authority?
CS: Obama has escalated the use of drone strikes, and has deliberately killed an American citizen without a trial (Anwar Al-Awlaki), which Bush did not do. Obama ordered the American military to participate in the NATO air war over Libya without Congressional permission and kept it going after the 60-day clock apparently imposed by the War Powers Act for combat deployments not authorized by Congress; Bush got congressional authorization for Afghanistan/Al Qaeda and Iraq. Obama has also overseen eight leak-related criminal prosecutions of current and former government officials so far, compared to three under all previous presidents combined, although as best as I can tell, that crackdown has as much to do with changing technology as it does with any deliberate policy choices.
There is a whole other line of inquiry into Obama’s domestic policies as he has battled Republicans in Congress, as he has sought to advance his agenda in the face of legislative inaction/obstruction, like not defending in court the anti-gay-marriage law, DOMA, or selectively not enforcing statutes regarding immigration and delaying the implementation of certain deadlines in the health care law, and by making recess appointments during pro forma Senate sessions. That has shown an increasingly unilateral bent which is interesting in its own way, raising different legal issues than Bush’s theory of commander-in-chief powers and appearing to derive from different motivations.
TBR: In recent history, the expansion of executive power has not been a major political issue in presidential elections. Are American voters likely to affect change on the expansion of executive authority by way of the ballot box?
CS: The observed experience of recent years is that many Americans tend to be opportunistically critical of executive power depending on whether their party controls the White House or not. Republicans accused Clinton of stretching the limits of his rightful powers on things like conservation of public lands, then sat silently or defended Bush when he pushed things to new levels (i.e. conducting surveillance without obeying the FISA law), and are now accusing Obama of acting like a king. In a mirror image, Democrats who loved muscular assertions of executive power when Clinton was bypassing Newt Gingrich turned around and made hay over attacking Bush, and now are largely silent or defending Obama against GOP criticism. This doesn’t necessarily imply equivalency in those actions — issuing executive orders or regulations pursuant to statutory authorization is different than claiming a right to override a statute. But at a political rather than legal substance level, what we see from this pattern is that it is difficult for executive power issues to be a front and center issue in presidential elections because they are blown around in the winds of fleeting factional interests.
TBR: Edward Snowden [former National Security Agency contractor and government surveillance whistleblower] recently phoned into the Interactive Festival at South by Southwest. What are your reactions to Snowden’s comments, and his continued asylum in Russia?
CS: At SXSW, Snowden called for more universal use of end to end encryption, and having taught myself to use encryption since last summer I agree with his critique that the technology companies need to make these tools easier for normal people.
Obviously he has confessed to actions that violate American laws, and he is a fugitive from his indictment here. He says he doesn’t want to stay in Russia but that diplomatic pressure from the United States has prevented him from obtaining asylum in a European or South American country.
TBR: The Obama administration has been criticized by members of the press for its robust public relations efforts, which include YouTube hangouts, closed meetings photographed only by official Obama photographers and other limited-access media events. How do your experiences working in Washington match up with perceptions President Obama has made covering the White House more difficult?
CS: I don’t cover the White House per se and I’m generally not focused on the kinds of things that result in media events, so I’m not the best person to talk about those sorts of experiences. My version of this would be efforts to obtain access to memorandums by the Justice Department’s Office of Legal Counsel and elsewhere that lay out the government’s official interpretation of what the law means and permits it to do. The Obama administration has fought very hard, including in Freedom of Information Act lawsuits filed by me and others, to prevent those memos from becoming public. On the other hand its officials have delivered a series of speeches laying out its legal thinking, and in other ways as well they are sometimes informally cooperative in trying to help the public understand their legal approach.
TBR: On a related note, the United States was ranked 46th in Reporters Without Borders’ World Press Freedom Index. What are your thoughts on that?
CS: I’m not sure what the methodology is that allows rankings of such a thing, so a precise number like that has to be taken with a grain of salt. But much appears to be in play right now for the United States and press freedoms.
TBR: Can you provide some insight on why you requested to answer [our] questions via email?
CS: Time shifting. I’m juggling a lot of things right now. This way we don’t have to align our schedules and I can answer a question here or there in the draft when I have free moments.
TBR: Reporters are often vilified by the public. Many paint news providers as biased. One might say the American public is not overly concerned with freedom of the press, specifically. Is popular opinion disconnected from the idea of a free press?
CS: I don’t have an answer to this one.
Savage will speak Tuesday, March 18, at 7 p.m. in the Jordan Ballroom of the Student Union Building at Boise State University, 1910 University Drive.