Rivals for Influence on Counterterrorism Policy: White House Political Staff Versus Executive Branch Legal Advisors

Rule of law, baby! --Comment by defense lawyers (in conga line?) at Guantanamo Bay naval base on January 20, 2009, on hearing that the new administration was suspending all military commissions on the base. (Finn and Kornblut 2011) The notion that you would take actions based on political considerations runs counter to everything in my DNA. --Eric Holder, as quoted in an interview to Daniel Klaidman of Newsweek, July 2009. (Klaidman 2009) Perhaps, in hindsight, three years later, those Guantanamo defense lawyers might look back at that exuberant outburst with more than a little regret and cynicism at their premature celebration. Similarly, Attorney General Eric Holder might wish he had refrained from making that statement, since this orientation is the basis for sharp criticism of him by White House aides for his insufficient attention to the political impact of his public statements and actions. It is the tension between politics and law that this article investigates, and Holder, among others, is a central figure in that tension. Above all, the president looks to his advisors--both legal and political ones--to give him their best advice. Often, however, what is a politically wise course of action may not be legally permissible, and vice versa. The Obama administration has confronted this conundrum, with special force, in developing its counterterrorism policies. This article proceeds from a series of basic assumptions, some grounded in policy and politics, while others are institutional in nature. * Opposition to key counterterrorism policies during the George W. Bush administration fueled a significant amount of voter support for the 2008 election of Barack Obama: candidate Obama pledged throughout the campaign to reverse these policies, and expectations ran high during the early days of his administration that major changes were afoot. * Four years later, two of the more high-profile policies that were prime candidates for reversal (housing detainees indefinitely at the military prison at Guantanamo Bay and the use of military commissions to prosecute terrorist suspects) have been the subject of withering political battles, only to end up exactly where they began, with very little change from the policies of the preceding Bush administration. * White House staff political and policy advisors, on the one hand, and cabinet secretaries, on the other, exist within a relationship fraught with rivalry, jealousy, and distrust--and for good reason, as department heads have watched their influence over policy making wane in direct proportion to the increase in centralized control over policy by White House staff. * Political and policy advisors to the president operate on the basis of short-term goals, hoping to win congressional and public approval for specific policies while always being mindful of the level of support they can reasonably expect from their party's members in Congress. * Executive branch lawyers are expected to perform their official responsibilities as servants of "the law": they look to long-term legal principles and judicial precedents as the touchstones for the legal advice they give to administration officials in the policy and political establishment. They are trained to think in terms of fundamental values and rulings that will hold up over time. That said, there has long been an inherent tension in political appointees within the Department of Justice between the recognition that they serve at the pleasure of the president who appointed them and the tradition of independence from politics that these positions expect and demand. The puzzle at the heart of this inquiry, to which these assumptions apply, is to determine why the Obama administration, entering office with such promise and deeply held intentions to restore respect for the rule of law by rejecting Bush-era counterterrorism policies, has been unable to achieve these specific goals and has gone even further by adopting most of these policies as its own. …