tv Book Discussion on Power Wars CSPAN January 24, 2016 3:30pm-5:01pm EST
that has been played out in pennsylvania and philadelphia in particular on several over indications, where halls -- buildings have been burned down for accept slavery activist, and abey hutchson sin is known as the jinny lin of america before jinny lin makes her visit. she is upheld also this ideal of american womanhood, and ludlow followed the group wherever they go. his clippings are still available in folders at the public library in milford, new hampshire, still. and the two -- ludlow and abby mary in 1849, and abby's forced to retire from the group. in the immediate aftermath, the brothers quite literally start resorting to fies city cuffs before shows. they get into fights and seem to have lost their grounding.
if the egos are getting in them way. juddson and john seem to have dalliances with groupies and they're married at the time. there are ways in which they mirror our ideal of rock musicians of the 1960s and 1970s and these internal struggles richmond the group apart. by and large, after the civil war, the hutchinson family singers, asa moves out west. the brothers founded hutchinson, minnesota, and then asa moves to colorado and john remains centered in lynn, massachusetts. abby will remain in new york and in orange, new jersey, and new york city, and travel the world. she'll be in egypt and other places. she has married again ludlow patton, extraordinarily wealthy to whom she wed. and the hutchinsons won't be that social voice they were in the 1840s and 1850s and by and large they'll be what a lot
of singer from the 1960s are today. they make money off of what they once were. they're had-businessessed. they're repeating old music. going on stage as a relic that people want to remember the older age in many ways, and that younger generations are curious about all these stories their parents had about this moment. we used to listen to so and so and you share that legacy, but they're never reach the fame and celebrate they once had during the 1840s and 1850s. the legacy of the hutchinsons is important in several different ways to us today. one, starts with this kind of musical legacy, which is this combination of social activism, of commercialization, being a giant celebrity, that we --
again, most often locate in the 1960s or 1970s, and certainly maybe the 1930s during the great depression, and during some of the labor struggles, but maybe not that much celebrity or at least not that much economic success. the hutchinsons had this all in 1840s. ♪ ♪ >> fog more information on our cities tour go to c-span.org/cities tour. >> this is booktv on c-span 2. television for serious readers. here's our primetime lineup.
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[inaudible conversations] >> welcome. my name is shane heel y, i'm a vice president here at the cato institute and i'll be your moderator today. thank you all for coming out to the first cato event of 2016. today we're going to spread the new years cheer and take the chill out of your bones with an in-depth look at remote controlled executions, the creeping surveillance state, and the seeming permanentens of the imperial presidency. so, merry new year. >> ore focus the book by charlie savage: power wars inside obama's post 9/11 presidency."
charlie has been with "the new york times" since 2008 and has been the independent expert on executive powers since well below that in 2002 -- 2007 he won a but litter prize on the bush signing statements, his book "takeover eye" the return of the imperial presidency was named one of the best books of the year by the "washington post," "slate," and "esquire." to describe paw power wars pay as comprehensive would undersell it. look at this thing. you can't actually -- there's no index available in the book. you have to actually print out 50 pages of index from charlie's web site. it's mammoth undertaking and
well worth the effort. breaks new grounds and new stories based on interviews with over 1 50 current and former officials. it's basically a one-man 9/11 commission report on how we got to where we are today. power wars picks up where takeover left off with the arrival of a new administration that had pledged to, quote, turn the page on the executive aggrandizement of the bush era. yet, as charlie writes, early on in the new president's tenure, obama's policy choices that departed from bush era programs dwindled, and those that continued or even expanded bush era programs rose from a fierce campaign of drone strikes whose target would include an american citizen, to the perpetuation of a sprawling and voracious surveillance apparatus. people across ideological
spectrum would voice with increasing intensity what became a defining accusation, not just of the moment but of the entire presidency. obama was acting like bush. our distinguished commentator today is michael glennan, profession of international law at tufts university and the former legal counsel to the smart foreign relations committee. his 2014 book "national security and double government" was the most disturbing thing i read that year. in it professor glennan asks the key question, why does national security policy remain constant even when one president is replace i by another who as a candidate repeatedly forcefully and eloquently promised fundamental changes in that policy. he identified three possible causes for this striking degree
of policy continuity between the two administrations. one, a rational good-faith threat assessment by political actors, the policies we needed, given the threats we faced. another is the enormous political pressures brought to bear on the presidency, whether rational or not. but professor glennan puns his emphasis on a third cause, what he calls an emergent autocracy made up of national security insiderrers we moved beyond a mere imperial presidency, he writes to a structure of double government which even the president exercises little substantive control over the overall direction of u.s. national security policy. "the boston globe" sum up the
thesis as, vote all you want. the secret government won't change. now, you can find evidence for all three of these causes in the pages of "power wars" and reading it, it struck me that looking for a single culprit is -- look liking for the cause for the obesity crisis. fat because of high fructose corn superor super sized portions or because we watch five hours of tv on average a day. anyone who wants to figure out how we got to where we are today
and want to get back has to start with par power wars." please welcome charlie savage. >> well, thank you very much for the kind introduction, gene. i like the idea of the one-man 9/11 commission. i could listen to you talk all day. thank you very much, michael, for coming down from boston to participate in this event. i liked his book i was recommended to him mints ago by a former lawyer in the obama white house, about a year and a half ago when i was researching my book and talk can about the dilemmas and difficulties they encountered once they came into office, and i immediately ordinary it and devoured it and cite fit my book. and thank you to all of you. i wondered who would turn out bus it was so cold.
i'm heartened to have this crowd and c-span as well. i'll talk 15 minutes about my book and then michael will talk and we'll have a conversation and move to audience questions. ry start with the story of my book. eye have been covering national security issues and legal policy issues 2003, rode the wave in on abu ghraib and the attempt by senator mccain to impose a ban on torture and the signing statements by bush that came out of that, as well as the revelations about warrantless wire tapping by the "new york times." i was then with "the boston globe." and this is essentially -- the fights of presidential power. you may remember in january of 2009 when president obama was inaugurated there was this
moment in which it looked like the war on terror was suddenly, abruptly, over. he had run on a platform of change from george bush's global war on terrorism. he had been a big critic on the campaign trail. he the government constant ducted itself in the years after 9/11, and talked about getting away from the -- constitutional ideals and security and among the first things he did was issue a series of executive orders promising less secrecy, banning torture, ordering guantanamo closed and looked like it was over, and this thing that i had become a specialist in, and a couple colleagues of mine, like scott shane and so forth, did for a living, was no longer going to be available, and i remember joking that we would have to find new jobs. maybe there was an opening in the sports department and we could keep paying the rent
somehow. but very quickly it became apparent to me that it was not over. there would be much greater continuity in the counterterrorism policies of the new administration, with the old one, and the expectations credited by then-senator obama's campaign rhetoric. some of his incoming cabinet members in remarks during their confirmation testimony affirmed that they thought it was lawful for the government to terrorism suspects, they would continue the practice of rendition, transferring people other countryies from one one intelligence agency to the next based only only diplomatic assurances three would not be mistreatment, which was exactly bush's policy, ate least on paper as well. they'd shut down temporarily military commissions but in a way that looked like they were keeping the door open to resuming them, which is exactly
what happened. they were starting the states secrets privilege in court -- asserting the states secret privileges in court to continue to -- and all that was apparent by two or three weeks into the new administration, and so i called up the new white house and said i was plan only writing a story about the continuity, and one difference between the old administration and the new one was, the obama administration wanted to or at least was willing to engage with me. when i would call the bush administration, say, i'm going write a story about the signing statement that says you can torture not withstabbing the antitorture law, they would blow me off. this new administration called me into the white house, and i went in and talked to greg craig, who was obama's first out who counsel -- first white house counsel and we went through the litany of things that weren't changing and the explained they were not going to have a shoot
from the hip bummer sticker slogan policy. they were going to look carefully at everything they inherited and move deliberately, and that involved going out to langley and the pentagon and so forth, even during the transition and getting briefed be the members of the permanent national security establishment, the subject of michael's book about what the programs were, why they were necessary, why they were put in place, what they were doing, what revoking them would entail, and he argued that this -- whatever it was civil liberties people on the left or right who were upset by that or it was bush administration veterans who were seeming -- claiming vindication by that, that both sides were wrong, they were charting their own course, and people should give them time. so i continued to cover these things and i became very interested in the targeted killing of the american citizens anwar al-awlaki, brought a
lawsuit to try to make them reveal their legal thinking about the scope and limits of the power to target american citizens who have not been convicted in a court in a sort of national security situation like that, and then i eventually began to teach a class with mike davidson, retired lawyer from the senate intelligence committee, at georgetown university, on national security and the constitution in which we had to organize all this stuff that i'd spent a decade immersing myself in, in a way that an educated but nonspecialest could understand. started the stuck tier, the ten things you need to know about everything unleashed about severeliance, not clear what the law means or new technology that challenges oold rules. what are the ten thing iowa need to know about detention or interrogation or leak investigations or secrecy or war
powers, whereas 21st century situations have re-opened questions that seem to be settled in the 20th century because the premises were all different now. the laws of war are written for innings in-state armies and uniform, clashing on a literal battlefield. how that gets applied by analogy to a transnational, nonstate actor, armed conflicts like the war against al al qaeda, and the idea was the student was learn this stuff and the next time someone is arrested for terrorism they're on cnn they're allergying whether this person should be read the miranda warnings or when should be prosecuted in a military commission or article 3 civilian court. they would be equipped to understand what it was that was sort of the unspoken assumptions behind those arguments and where it came from. and then the edward snowden
leakses massive documents be the surveillance state and becomes clearer than ever that obama has not changed really at all the nsa apparatus that he inherited, including the bulk collection of domestic phone records. and at that -- that's when i decided this stuff really needed to be organized in a book. i couldn't do it justice in newspaper form. there was too much material and everything relefted to everything else you've couldn't understand what you were looking at in the argument about closing guantanamo if you didn't understand what had gone on with cia torture and the attempt to prosecute and then the failure to prosecute and why commissions were collapsing, which in turn turned on what happened on christmas 2009, and the attempted underwear bombing and how that created this big fight in new york, and these things were an imbedded web of
complexity. so i've spent the next couple years organizing and researching -- when i say i talked to 150 people i don't mean i had 150 interviews if had probably a thousand interviews because i kept circling back to people that i trusted and cross-referencing memories of intern deliberations and focus on this and focus on that, do you remember this? one else told me it happened this i would. way. is there anew answer i am overlooking and i organized this book similarly to my georgetown class. themeatic chapters and then chronology in stores in the chapter. so lot of it is case studies. you get to be in the situation room as actual people who want to think of themes as obeying the rule of law, are dealing with difficult situations in the world, and none of the options are perfect. there's no clear answer. everything comes with downsides
and risks, and why did they make the decisions they do, what were the options they discarded and why. so, a lot of case studies, and how does that illustrate the recuring frictions of the rule of not being clear anymore because they weren't written for these situations. and then arising from that are big-picture questions. the biggest is how is it that obama has had so little change from the policies he inherited from the second term bush administration, where did this disconnect come from? why do people keep saying he is acting like bush in what happened? and one of the takeaways that i put forward in the book as an argument is that what it means to act like bush is -- can mean more than one thing. it's easier to see now than it was at the time during the bush years when organizations like cato were having conferences and -- in which people had panel
discussions criticizing bush or rallies. there were two different strands of criticism. there were entangled together but are distinct. there was a rule of law critique and a civil liberties critique. the civil liberties critique says it's inherently wrong to have a warrantless wire tapping program or to torture or to have a system of military commissions, because the state should not have that power, vis-a-vis the individual. it's unamerican. the rule of law critique ising agnostic whether -- with thing and of over to tour, whether these degrees are good or bad -- torture is always ill lee -- and maybe these are a good idea given the 21st century transnational terrorism but it's focused on the process. the president doesn't get to break the law and as a federal statute says you must get a warrant, the president doesn't get to say in secret, i'm the commander in chief and i can ignore that and disregard it. the president has to go to
congress and persuade lawmakers to remake the law so that statutes authorize rather than forbid what it is he or she whatnots to do. so one of the big differences between the rule of law critique and the civil liberties critique is the lieu of law critique is fixable. if something violates civil liberties the an way to fiction it is to stop doing that thing. if something violated the rule of law, congress can pass a bill to change the law so it no longer violates the rule of law. in fact in the second term of the bush administration congress passes the military commissions act, passes with senator obama vote, the fisa act, and they took these program that were collecting everyone's phone records and e-mail records and rooted them in a somewhat sed dish claim patriot act authorized them. and by the time obama becomes president, if you think the problem that -- that acting like
bush means violating the rule of law, the problem is largely fixed. if the you think the problem that acting like bush is violating civil liberties the problem is not fixed because who cares if congress blessed it. the government needs to stop doing this. so part two of the analysis is, barack obama is a lawyer, obviously. joe biden is a lawyer. bush and cheney are not lawyers. they're ceos by background. very few lawyers that surrounded them. they were perhaps the least lawyerly administration ever. a few lawyers they let into the room had at least sweeping theories of executive power. we have gone from that extreme to the opposite struggle. this is probably the most lawyerly administration ever. not only are barack obama and joe biden law school graduates their to the most comfort apple when talking to fell lee law school graduates who analyze problems the same way. so the fill the upper ranks of their administration with lawyers, fellow lawyers and
policymake roles the secretary of state, bush's two secretaries of state, condi his and colin powell are not lawyers. hillary clinton and john kerry are but that replicates itself in the upper ranks of the apparatus. so their loyalty approach to problems is brought to bear upon what the think the problem is with bush. not surprisingly they are overwhelmingly, and if grew back and look at transcripts of things from the bush years, they their we one are tinge lating the rule of law critique, not civil liberties and this is obscured in the campaign, especially when senator obama is in the primary against hillary clinton, and they're compete fog their affections of a liberal base that is very upset with bush and cheney and they want to say issue think what they're doing i make okay, butted the wrong way but it's fixed now. they were like, this is wrong. if you parse what they were
saying, what obama was seeing issuing it was quite deliberate. i tell a story how in 2007, when senator obama gets his big national security speech at the woodrow wilsoner in, he was originally going to say i'm against military commissions, and jeh johnson, now homeland security secretary and was the pentagon general council says you don't know what problems you night encounter. at president you need to maintain flex exhibit they rewrite the speech where eh says i'm against the military commissions act but he really said he is against commissions that were set up that way, which leaves him being procommission under some other law which is what happened when congress passes a new version of the commissions act and he embraces them. i'll close with a story -- that sort of illustrates the teams i've been talking about. so, in 2013, when ed snowden
revealed many things, among them the bulk phone records program, the patriot act prom, and there's this eruption on the left and the right. civil libertarians on the right. libertarian on the right, jim sensenbrenner of all people can't stand this and leads to enact amount of the u.s.a. freedom act. pretty surprising in retrospect that obama kept this thing, and one of the things i reconstructed was the meeting at which he learn about and it decided to keep it. that was either february 4 or february 6, 2009 so he has been president for a couple weeks, and one of his few lawyer -- political law are who knew about at the program baud she has been national security lawyer in the senate, when the fisa amendments act was enacted so got classified briefings-wants the new president and his top team
to understand what it is they inherited in the surveillance world. she organizes this briefing, in the situation room, right after lunch, and obama is late. this is sort of a fraught moment. dick cheney has broken with protocol to say -- to publicly attack him and say that his decision to end the black site program and torture is going result in the united states being attacked, in a catastrophic way, and the day before cheney says this, and that afternoon he is supposed to go meet relatives of the victim's the 9/11 attacks and the cole bombing who are upset with him they've frozen military commission proceedings at gallon, a very stressful moment with the possibility of an attack in the forefront comes to his. my mind. he comes in chewing nicotine gum so he is stressed and sitting around are members members of te permanent security skate.
the cia, the federal bureau of investigation, the national security agency, the directors and lawyers and justice department national security officials, people -- these are people who stay on between administrations and run the show even as a george bush is replaced by barack obama. so they explain these programs. here's what we're doing here. here's what we're doing here. and they get to the patriot act program, and they say, well, this allows to us trace indirect links between people and we can use it to hunt for hidden cells, so-s of known terroris we didn't know about. hidden associates, and it's really important. we think if we had it in place before 9/11 we would have stopped the attacks, which is a claim that doesn't withstand scrutiny once the program comes to light and people put pressure on it, but that's what they said. and it was put in place ewan latllly by george w. bush in october of 2001 ask.
onto the record with somebody. and greg craig nicely let me say to myi] readers and now to you what it was he said when i asked him why did you guys keep this thing? look how little support there was for it across the ideological spectrum, why didn't you guys just tell the president we think you should turn this off? you could have avoided this huge headache. and his answer was, well, look, eric holder and i are both criminal lawyers -- craig was a former public defender, and holder was a former prosecutor. they'd done a lot of trials where trap and trace devices were used to collect records of who a suspect was calling and receiving calls from and when, not the content. and they knew very well that in 1979 the supreme court had ruled that the fourth amendment does not cover that kind of data, because once you reveal something to the phone company, a third party, you have no expectation of privacy over it. and that may have been a case
that involved one suspect's call for a couple days, not everyone in the country's calls for five years, but the reasoning behind it and why the fourth amendment doesn't apply doesn't turn on volume, you know? one million times zero is still zero. is so there's no constitutional issue, and it was very important to them that this had been brought under the court's oversight and rooted in a claim that a statute authorized it. it didn't seem to be a rogue program, and there seemed to be legal authority for it at least on the surface. so the question then was not whether to keep it or not. the intelligence community wanted it, and there was legal authority for it, so the task was just to get it within the bounds of what the court had authorized. i added a little more internal oversight, and they didn't think about it again until snowden came along. and if you think about that, that is the way in boyar would analyze the issue. is there legal authority for this? yes, no problem. no, there's a problem. and it sort of jumps past or doesn't go down the path of the
civil liberties critique. is this the way the united states government should be acting, is this the country that we thought we lived in. and so that illustrates, i think, some of at least part of an explanation equipping people to understand why things turned out the way it did. is it right that obama acted like bush, turning on how you define what acting like bush means. so with that, i will pause and let michael spiel. [applause] thank you. >> gene, thank you again for inviting me back to cato. it's a pleasure to be here today to talk about a book for which i have tremendous admiration. you know, we all know books on
national security policy are either about facts or the law, but not about both. virtually no one has the real, live sources to know what's really happening can and also the legal knowledge to put what's happening into a legal framework. in this regard, charlie savage is unique. and he has written a unique book that combines deep, behind-the-scenes reportage with lucid, legal analysis. a hundred years from now i believe that "power wars" will be the first book that legal historians pick up in trying to understand the obama administration's national security policy. the great significance of this book in my reading of it lies in the massive documentation of the dominance of the permanent security state as charlie has just referred to it.
its influence is often subtle and almost always behind the scenes, but it is nonetheless pervasive in the obama administration every bit as much as it was in the bush administration. both the national security bureaucracy as a powerful force, charlie writes, and on many occasions the obama team bent to its warnings that particular counterterrorism actions were necessary, unquote. the number of holdovers, officials who held the same or similar jobs in both administrations is quite remarkable. over and over key decisions are made or influencedxd by ever present careerists. the law governing their conduct is blurry and malleable, giving3 them broad power that's exercised with little accountability. they thrive on secrecy.
quote, the permanent bureaucracy gets nothing from transparency and sees it only in terms of risk, unquote, an administration official tells charlie. page after page of "power wars" provides evidence of its reach. no branch of government is immune to its influence, the president, the congress and the counts all defer to it. consider for a moment each branch in turn. when it comes to national security matters, the president is more recider than decider -- presider than decider. charlie cogently explains why. quote: for all the focus the media and historians tend to put on presidents as individuals, bush did this, obama did that, the world and the government are so complicated that a single person cannot pay attention to all of it. presidents set the tone and the priorities, and they usually are
the ones who make the very biggest decisions. but the overwhelming majority of what an administration does takes place in the trenches of the executive branch bureaucracy. dozens or hundreds of individuals whose names are unknown to the public and who rarely show up in history books make decisions every day about matters that will most likely never be brought to the president's personal attention or that may be discussed only briefly the oval office at a 10,000-foot level. unquote. the book is filled with examples of what charlie is talking about. in 2009, for example, charlie just mentioned obama, sworn in only days before, is briefed for the first time by the managers of the permanent security state on its continuingsbulk surveillance programs. they assure him that the programs are not only vital to the nation's security, but
perfectly legal. it seems to mean nothing to anyone present that the surveillance programs in question were legitimated by a pseudo court, the foreign intelligence surveillance court, or barely understood by cheerleaders of the intelligence committees which the 9/11 commission had earlier labeled as dysfunctional, and john mccain described as co-opted. so obama turns to eric holder and greg craig, as charlie described, already very busy probably trying still to figure out where the men's rooms were and asks what they think as though they could realistically at that point raise any meaningful concerns. and, of course, not surprisingly, neither one of them does. as time goes on, whistleblower prosecutions go from three before the obama administration to nine during the administration -- or eight, as charlie points out depending upon how you count -- and the
increase is driven not by a conscious decision by anyone in the administration. charlie says he can't pinpoint any decision by any official to pick up the tempo, but it's driven instead by improved surveillance technology which makes it easier to identify leakers. so prosecution is basically on autopilot. autopilot, the term that john kerry used to explain the continuing surveillance program that interceptioned angela merkel's cell phone conversations which obama, of course, said that he knew nothing about. the result is a policy of prosecution that has removed one last check on the permanent security state by crippling investigative journalism in this country, a program that has proceeded with no decision to start it, no decision to continue it and, of course, no decision to stop it. meanwhile, within the permanent security state itself officials
operate under an incentive to push off costs and risks to their successors. the result is a continuing drive for less accountability and fewer checks so as to enable quick responses to terrorist emergencies. officials need that power again because the blood will be on their hands be an attack occurs on their watch. we hear this over and over again in the book, who will bear the risk of casualtieses, whose hands will end up bloodied. there are, of course, competing long-term risks. there's the long-term risk in neutering the counts as independent guardians of freedom. there's the long-term risk in secretly compiling watch lists and no-fly lists that can easily be deployed to deprive people of constitutionally-protected rights like the right, like the right to bear arms as was just
recently proposed. there are long-term risks in legitimating torture by allowing torturers to go unpunished. but within the permanent security state, the payoff lies in meeting short-term risks because the long-term price will always be paid on someone else's watch. congress itself operates under similar incentives as "power wars" shows. no legislator wants to risk being defeated for re-election because he ignored a recommendation of the permanent security state, its emphasis on military and intelligence solutions over diplomatic or political solutions saturates the legislative process. legislators are content to play a ceremonial role to avoid hard national security decisions that
may come back to haunt them. congress, therefore, stands sheepishly by while obama's lawyers present an argument for the legality of the war against isis, an argument based on a 14-year-old aumf that authorized a different war for a different purpose against a different enemy. an argument that "the new york k times" has rightly labeled preposterous. congress' leading intelligence oversight committee, meanwhile, presents a report on torture that leaves out any mention of illegality or personal accountability and makes no recommendations whatsoever for any sort of reform. it identifies 9,400 documents relevant to its inquiry, writes three letters to the white house requesting those documents, gets no response and then simply
drops the request. no subpoena, nothing. the committee takes no depositions, it conducts no interviews even from victims who asked to testify. treaty obligations notwithstanding, obama makes no effort to bring any of the torturers to justice, even those who is barbarous conduct exceeded john yu's extravagant guidelines. the only person to be punished in connection with its torture program so far as i can tell is the cia official who first openly discussed it in a 2007 interview with abc news. the judiciary, charlie points out, is repeatedly urged by obama's lawyers to steer clear of these matters. and, of course, it does so. in response to his lawyers'
arguments, the courts elect to plano role either before orb play no role in reviewing a decision to kill american citizens deemed to be terrorists overseas, even away from hot battlefields. the courts proceed to dismiss case after case, following the administration's urging on the basis of the states secrets or other claims of nonjudicialability. any plaintiff who has suffered even the most grievous injury as a result of the bush/obama counterterrorism policies has been awarded a day in court, let alone a case in which any plaintiff has been awarded a dime in damages. in the relate m of war powers, obama attacks libya with no fidelity to the constitutional principle that he himself identified in the boston globe in response to charlie's
question. absent any threat against the united states without congressional approval, and then obama proceeds to sidestep the war powers resolution 60-daytime limit with a, quote, legally available interpretation. not the logical interpretation, not the traditional interpretation, not the best or most widely accepted interpretation, but an available interpretation that the head of the office of legal council in the justice department rejects and the pentagon's general counsel rejects and which barely passes the laugh test. but he gets away with it, as charlie rightly points out, because in the conflict against terrorism, quote, legal theory is malleable in matters of national security, the line that separates policy and politics from law has grown blurry, unquote. i would add that obama gets away with it as "power wars"
illustrates because his lawyers have done all they can to make the law more malleable. ben rhodes, the keepty national security adviser -- deputy national security adviser, brushes aside the need to get congressional support. quote: it's easy to get lawyers to do clever wordings, he tells charlie, and we could always point to kosovo, unquote. rhodes' comment brings to mind madeleine albright's response to robin short when the british foreign secretary told her that his lawyers had legal problems in bombing kosovo. robin, she replied, get new lawyers. [laughter] well, obama got new lawyers, much more clever than the old bush lawyers with their jejune theory that the president is an elected king who can violate the law with impunity merely by reciting the magic jingle, "commander in chief." obama's new lawyers never need
to say that. they're always able to come up with a more refined, baroque alternative theory for reaching the same result. yet the curtain does sometimes get pulled back as it was in the jerusalem passport case. there obama's lawyers cited the infamous inhermit powers case ten times, relying upon what the supreme court described as, quote, unbounded power, unquote. charlie describes the, quote, circular logic of bush's old lawyers, quote, a president had done certain things based on those theories, and because he had done them, those theories must be true, unquote. if the logic of obama's new lawyers is less circular than the logic of bush's old lawyers, the question that's raised currently in "power wars" is why that should matter. given the that the new lawyers'
conclusions in shaping this ever-malleable law are almost always the same. the rebuttal of obama's defenders is curious. as charlie just mentioned, some of obama's lawyers who had earlier criticized bush's national security policies before obama took office now uncyst that their real criticism -- insist that their real criticism was based not on civil liberties concerns, but on rule of law concerns. they contend, as charlie points out, that they never really objected to the substantive bush policies at issue such as bulk surveillance, but only to the process by which those policies were implemented. such is lack of congressional approval. their real objective in the obama administration they suggest has simply been to restore rule of law more respectful of process. well, it's an interesting attempted distinction, but i think it's got three
difficulties. first, as commonly understood, the concept of the rule of law is not that narrow. as most people use the term, rule of law is not limited merely to process and procedure. it includes at least minimal elements of liberty. most people would not regard a nation as imomped by the rule of law if it consistently abridged the fundamental freedoms of its citizens. even if it did that regularly with dotted is and crossed ts. it was fair to believe when senator obama and his people criticized bush's policies, that they shared this broader popular conception of the rule of law as protecting both process and liberty. second, many of the policies that bush's critics earlier objected to and that obama has continued are, in fact, purely procedural. they have no substantive dimension. the procedure is the substance.
consider in this regard the state secrets privilege, prosecuting whistle blowers, resisting meaningful congressional oversight, using signing statements to bypass the intent of congress, withholding documents under executive privilege and classifying purely legal analysis. i suspect that most critics of those bush policies did not regard the interests, those policies abridged, simply as civil liberties add-ons that are extraneous to the rule of law. no, they regarded those interests as encompassed by the rule of law which they expected president obama to honor. this brings us, third, to the bottom line question. theory aside, as a practical matter, just how much bite does obama's rule of law actually have? what in the end do all these 700 pages of legalist slicing and dicing really add up to?
be one would think that if the rule of law means anything, at least on occasion it has to prevent public officials from doing something that they might otherwise be inclined to do. so the question is, what specifically has the rule of law prevented the administration from doing? the astonishing answer to this question was provided by none other than john brennan speaking off the cuff at harvard in 2011. brennan said, quote: i have never found a case that are legal authorities or legal interpretations that came out of the lawyers' group prevented us from doing something that we thought was in the best interests of the united states to do, unquote. could that possibly be correct? charlie, in 2014, asked ben rhodes basically the same question; could he think of any instance in which the obama
administration had not done something that it wanted to do because the obama lawyers said that it would be illegal? rhodes could think of only one example, rejecting the proposed exfiltration of an iraqi prisoner without the iraqi government's consent. i myself read "power wars" with this same question in mind. i looked page after page for one additional instance in which this most lawyerly of american presidents was told no, you can't legally do something that you want to do. i could not find a single example. this sobering record seems to belie the claim of obama's defenders that they were merely misunderstood. their idea of the rule of law turns out to be more in the nature of an adornment or decoration than a set of actual restraints, something added after the fact rather than a fixed, pre-existing framework
within which policy is actually formed. of course, there's always the possibility given the number of lawyers filling these jobs in the obama administration that legal consideration somehow disciplined the internal dialogue and nudged policymakers to focus on legal constraints. up to a point, i'm sure that's true, but only up to a point. let us remember richard nixon, john dean, john mitchell, john ehrlichman and charles pollson all were lawyers. dean has said that 21 lawyers were involved in watergate. if the obama administration is the most heavily lawyered in history, the nixon administration is surely a close runner-up. the watergate tapes do not seem to reveal an oval office in which the dialogue was disciplined by a desire to
comply with the rule of law. as a lawyer, i'll close by simply noting i understand that dynamic. all lawyers like to make their clients happy, and obama's lawyers are no exception. sometimes, however, a lawyer simply has to be an abominable no man. you don't see many abomb abominable no man leaping out of the pages of "power wars." what does leap out is the deep and enduring influence of the permanent security state. thank you. [applause] >> before we open it up for questions, let's -- i was going to give charlie a chance to respond, and not to pile on, but, you you know, i've never ft
worse about going to law school than this morning. [laugher] and just to amplify one of michael's points, in addition to the end run around the office of legal counsel to continue the war in libya beyond the war powers resolution's time limits, more broadly, you know, the definition of the rule of law is hard to nail down when you look for it. you usually get a list of points, but when you do look for it, many of those lists include a failure to publicize. so with particular respect to the section 215 program, yes, maybe it had been blessed by the intelligence committees and by the secret court and by the executive branch, but no one in
the wider world knew that a federal human relations database was being built on the basis of an interpretation of section 215 that considered all americans' phone records relevant to authorized investigates of terrorism. can we really save the rule of law -- and you've spent quite a bit of time challenging in court to obama administration to be more forthcoming not about sources and methods, but its actual legal interpretations behind some of these things. can we really say that the rule of law problem has been fixed or largely fixed when so much of this is going on behind closed doors that is not publicized? >> okay. so i have two or three things i
want to say in response both to michael and now to gene. and to start with the latter, you know, this dichotomy of rule of law critique versus civil liberties critique -- and that's not something that obama's defenders have put forward to me. that's kind of my analysis. and, of course, it's a model, you know? and like all models, it oversimplifies in some respects. for example, the fourth amendment is a law, right? a higher law, and that protects privacy and individual rights in a substantive way. and so can you -- would something that violates the first fourth amendment but not a statute be okay with the rule of law? of course not. but it's just a way of thinking about or helping people think about how acting like bush might mean different things to different on observers in a way that helps us understand the disconnect between the way obama governed and the expectations created by his campaign rhetoric. it certainly doesn't excuse or
is not the end all, be all. that's the first thing i want to say. secondly, so there's -- it's too far to say in a couple different ways, i think. so i want to make the case that although i agree generally with michael about the power of the deep state and how difficult it is to buck it, and i think, you know, that's a major explanatory force, i don't think it's the only to force, and i think that his portrait of a democratic system in which the presidents and the courts and congress are irrelevant is too bleak. and i want to explain a little bit about why even what i've talked about in the book, you know, complicates that. but i also want to say in another way how he could have gone further in certain respects. let me march through in a couple ways. first of all, there are ways in which this administration hasn't done things it wanted to do because it seemed to be illegal. the number one way, fact in that
pattern is that guantanamo remains open. and if congress hadn't passed a statute that barred bringing detown knees onto u.s. soil -- detainees onto u.s. soil, guantanamo would have been closed years ago. and they haven't been willing to violate or challenge that statute although his statement from the podium rhetoric has become increasingly aggressive in that respect. and in the bergdahl/taliban swap he violated another provision of the restrictions bushed on a -- ceahyddu#'s chief override claim. i think that's the only clean claim he's made so far, but on the table is the question of whether at the end of 2016, say after hillary clinton is elected because it wouldn't make sense to do it after marco rubio was elected, and before her inauguration he will order the military to put them on a plane.
to date, he hasn't done that, and i think the reason he hasn't done that is explained by the law. and i also think it's a little bit oversimplistic to say that the law dictates outcomes in this sphere of national security policy making where there's a bright line answer and you either, yes, you can do it or, no, you can't. and it's totally obvious. you know, most of -- one of the reasons this stuff is so murky is that it's extremely rare for there to be judicial precedent that gives you the clean, clear answer. very often in this realm no one has standing to bring a lawsuit. there's very few precedents to act as guide posts that are from the courts as opposed to just internal executive branch historical actions and memos. and it may not, in fact, it may genuinely not, in fact, be clear what the answer is. several options are reasonable and on the wall, not off the wall. and within that sphere you can
still have rule of law mattering, because a government that wants to think of itself as obeying the rule of law and wants to be able to publicly justify its actions both at home and abroad as consistent with recognizable, mainstream understandings of what the law is will find that legal constraints while not dictating outcomes, are never theless a factor that shapes and disciplines deliberations about what the policy choice is going to be. so military factors and political factors and is so forth are equally important, but what is the legal authority for this, how are we going to say that this was justified can push you away from a choice that would be very difficult to justify legally and towards a choice that is consistent with most people's understanding of the law. doesn't mean that it doesn't have breakdowns like the libya situation where everyone says what are you doing here.
generally, that may mean you don't have a lot of situations where they wanted to do x and the lawyer said it couldn't be done because the discussion steers them away from x in the first place and towards a y. so that's another way in which i think the world is more complicated than some of the critique we heard a minute ago. here's where i think you could go further. since 9/11 and after 9/11, the bush administration and congress transformed the national security bureaucracy. you know, it created a department of homeland security. it created an office of the director of national intelligence. it created within the justice department a national security division and so forth. and this has literally meant that the national security state has more seats around the table when these things are being discussed than it used to have. there are voices now who are,
whose job is to represent the security interests among other competing priorities and values, and they're going to be louder in the meetings because there's more of them, because there's more institutional roles for them to fill. and that makes things harder. and it especially makes things harder to change things the security state wouldn't want to do. if you have a governing process that values consensus and fully ventilating issues among all interested parties and rigorously adhering to process. that has been the obama administration with very rare exceptions. that's part of their sort of, how the fact that they're so lawyerly spills over into things that even don't directly involve what is the answer to this legal question. there are, they value the process, and if someone somewhere disagrees with something, they don't go ahead, they bump it up to the higher level in the bureaucracy, and
they think about it some more, and they keep punting it all the way up. the bush administration was very different. the bush administration steam rolled bureaucratic opposition. and sometimes that bureaucratic opposition came from the national security state. and i think some of the bush administration's record in doing things like suddenly creating military commissions by fiat or having, getting, deciding that prisoners were not going to be treated in accordance with the geneva conventions or not just with torture, but other ways which the military was vehemently against, the uniformed military. but it didn't matter because the white house was willing to push it through. that shows that -- it's ironic to cite that in a way in which your vision is too bleak, right? but it shows that if you have an administration where the political actors are willing to be aggressive, eventually, you know, they can do what they want to do sometimes. notwithstanding opposition from
the deep state. and so an irony of the obama years is they overlearned the lessons of the bush years and, you know, condi rice writes in her memoir about how she didn't even know military commissions were on the table until cheney had already put it in front of bush's face, and he had signed it, and she learned about it from the media. and they were not going to have a dysfunctional process like that, the obama people. tom donilon, one of his most important national security advisers -- and a lawyer -- deliberately designed this process where everyone would be consulted, and all these extra seats at the table would have a chance to assert veto power at least in the short term. and there's always going to be someone who assert it is veto. should we let this particular person out of guantanamo, you know? nine people in the room say yes, one person says no, and the person stays in guantanamo at least for the time being. should we release this memo that explains our secret interpretation of the patriot act or what we think the scope
and limit of our authority is to kill american citizens in a place like yemen who we think are terrorists but haven't been tried. nine people say yes, one says no, and it doesn't get released. that's a decision by this president and his people, to have a decision making process that means that it's hard to roll, steam roll through internal bureaucratic opposition. and the bush -- a counter example, of course maybe a warning one as well, of another way of doing business. so i have more to say, but i don't want to ramble on too much, so i'll stop there and let michael respond. >> charlie, thank you. that does clarify a lot. let me, in an effort to continue the clarification, just say three things. first, i certainly do not try to make the case or put forward the belief that what i call the
trumanite network of permanent security state as charlie refers to it always gets its way and that its views always trump the elected representatives of the people in congress and the presidency and their appointees on the courts. no, quite the contrary. and i just will add a footnote at this point. double government is a term used by walter badgett in an 1867 book describing the theory that explains the operation of the english constitution. and the theory is that there are dignified institutions that generate legitimacy on the part of the, on the part of the public through public deference the monarchy and the house of lords which the english people believe actually engage in governance. but the actual governance is carried out by behind-the-scenes
set of institutions, the prime minister and the cabinet. and so this bifurcated system of double government has arisen in which the so-called efficient institutions actually run the show, but legitimacy is generated by the institutions that exist largely for public consumption. my suggestion in this book is that our dignified institutions that exist largely for public consumption have become the presidency, the congress and the courts. it's not that they are irrelevant. quite the contrary, as badgett points out, the theory would not work, they would not generate legitimacy if they never controlled any decision. of course, you have to have counterexamples. it's rather like, you know, playing poker with a dealer who's using a marked deck. if you never win a hand, if the
dealer always wins, you're going to get up and walk away from the table. the point of double government is, no, sometimes the court wins, sometimes the president wins, sometimes the congress wins, sometimes the military and intelligence agencies do get trumped by those institutions. but the bottom line the system is rigged. the system is rigged, as my senator repeatedly said. and my final point, i guess, would be a question to you, charlie. just to clarify. i certainly would be the last person to suggest that national security law is a regime that is filled with bright line rules. quite the opposite. i've made the point repeatedly that particularly in the realm of the international rules, the law of war governing drone strikes and cyber war, for example, rules are just as charlie describes, in a state of flux. they're blurry and extremely
malleable. that does not mean, however, that there are not some bright line rules in other areas. you've got to look at one issue at a time. it gets very complicated. it's very difficult to generalize in this regard. looking at one specific area, however, i think it's instructive. take a look at the war powers. charlie asked barack obama as a candidate a question, when did he think the president could use armed force without congressional approval? and obama gave a very specific, i dare say bright line answer. my question to charlie is, do you think that answer was wrong? do you think that's not the law as he stated in. >> so to flesh out the question, in this 2007 survey i conducted
of would-be presidents ahead of iowa and new hampshire on executive power issues, one of the questions i asked was under what circumstances, if any, was the president have the constitutional authority to bomb another country absent an imminent threat to the united states or prior congressional authorization. a big issue at the time was bush and cheney were saber rattling about bombing iran's nuclear facilities, but the question was general. and obama said the constitution does not give the authority to attack another country absent an imminent threat or congressional authorization. in march of 2009 -- sorry, 2011, the arab spring protests break out across the middle east, and quickly the governments of egypt and tunisia fall. but sandwiched between them is libya. gadhafi does not want to fall, and he starts pushing back against the protest movement which is based in benghazi. his forces get to the gates of
benghazi, and he is threatening to go in, basically, and wipe everybody out. he's on the radio threatening to go house by house. and as this was happening, the senate had voted unanimously for a resolution saying we should apply -- impose a no-fly zone. but everything seemed sort of stymied. the u.n. wasn't going to move. and suddenly the u.n. security council authorizes an air war to protect civilians in libya which takes care of the international law problem. and nato swings into action to impose that no-fly zone and push the forces back from benghazi. and the question is can the united states, the domestic law question is who gets to decide whether the united states is going to participate in that intervention. and obama's answer would seem to suggest -- forget would seem to, obama's answer from 2007 meant absent a vote from congress and whether or not gadhafi slaughters civilians in benghazi
is not an imminent threat to the united states, we couldn't do it. now, into this intrudes political reality. this is part of one of the places where i think the constraints on how things happen include the deep state, but they also include technological change, and they include political realities, and they include congress both as an actor and as a dysfunctional nonactor. this is the moment sort of right after the tea party midterm election, republicans have retaken the house, but the republican party itself is divided between mainstream republicans and the 50-member tea party caucus who want to shut down the government. obama does not agree to revoke obamacare, which he's not going to do, obviously. and there's this huge, this sort of -- you may remember this was a moment of one crisis after another. the government's going to shut
down now. oh, no, let's vote for two weeks to keep it open. now it's going to shut down again, no, let's vote for three weeks to keep it open. looming on the horizon is the debt ceiling. and speaker boehner is striking these deals that his own tea party caucus will not go along with, so he's forced to rely on democratic votes to keep the government open. and there's this bitterness and vitriol, and everyone is going home after two of these fights in a row for a scheduled recess, and the political reality at that moment is that even if obama were to come to congress andç say please authorize force in libya, they were not in a position to vote on anything even though the senate had approved this, and we think behind the scenes congressional leaders of both parties were saying just go ahead and do it. so that raises for obama a dilemma. the whole book is about
dilemmas. in this case the dilemma was stick to his prior stated constitutional principles, and the united states does not be take part in this air campaign which can't really happen without the united states. and then all these people get slaughtered. or save those people but violate those principles. and he decides to violate his principles and intervene in libya. and does save those people, although, of course, libya then becomes a complete mess but sort of in slower motion. but, and then that comes back to congress when they come back, and the question is, you know, was that legal or, you know, some kind of, like, civil war? maybe it wasn't strictly legal, but they could retroactively fix the problem by voting for it. they simply just, they don't, right? in fact, they have three, before them three different options; vote to end the war, vote to authorize the war, vote to authorize support to our nato
allies like surveillance and refueling and munitions, us directly attacking gadhafi forces. and the congress splits three ways, and all three fail. and so it's completely, you know, inept. what does that even mean? and so part of what that demonstrates, i think, to obama even before we get to the complexity of the war powers resolution fight 60 days later, i think that's a crucial moment for understanding his evolution. up til that point, he had been -- the foil be had been bush and cheney. he wanted to show that he could, you could be president without being the guy who said i'm the commander in chief, and congress doesn't matter, and i can just do whatever i want, and the law is a nicety. and the foil, starting in 2011, begins to shift to the republican tea party house
obstructionism and is government, is he going to be able to do what he wants to do, is the government going to function at all? what is his responsibility? when from his perspective congress is simply dysfunctional and it's not performing its assigned role as a, you know, part of the separated powers, this situation. do you let the world burn, or do you start taking more and more aggressive unilateral executive actions? obviously, for the most part as he's gotten more and more and more aggressive in that sphere, it's unfolded in the no child left behind waivers, aggressive use of environmental regulations to deal with climate change issues. but it begins, i believe, with the libya situation. because if a president goes to congress and says i need the authority to do acts in congress is too dysfunctional to vote on that, it takes away his power. but if the president just asserts that he has the authority to act and challenges
congress, essentially, to repudiate him, that same dysfunction prevents congress from reacting in any coherent way. and it serves to enhance his power. because not reacting when a claim has been made amounts to acquiescence. and i think he learns from that situation that he can govern in a messier way, in a messier world through executive action, and that moves us forward. very different than whether the question of the national security state was the one, you know, the secretary of defense, bob gates, you know, living embodiment of the deep state to some extent. bush's secretary of defense and obama's secretary of defense and a former cia director as well opposed that. the white house wanted to do it, and so we did it. >> i'd like to get to some of your questions. we have about ten minutes for questions.
and it's the new year, so resolve not to be that kind of washington character who gives a speech that doesn't end in a question mark. please do keep your questions short and make sure that they end with a question mark. raise your hand, i'll call on you and wait for the mic to be brought around. state your affiliation if you think it matters and ask a question. back there. wait for the mic. >> >> i thought i could talk loud enough. a question for mike glennon. i like very much the focus on incentives that you built around, build your analysis around to a great extent. but, and specifically the incentive to put off to future administrations the costs or the
consequences of certain decisions. but i wonder if there's also maybe an even to more important incentive built into the dynamics of the national security state which is that in every national security decision, every policy decision there is a, there are winners and losers. i mean, obviously, every time the united states goes to war, there are people who win in various ways, and there are losers in the process in this country. and so i'd like to ask you for your view of how that sort of incentive fits into the dynamic, the power of the national security state. and the way decisions are actually made in the process. >> that's a difficult and rather profound question, i must say. i think -- let me answer it this way.
i think that it would be easy for a reader reading "power wars" to fall into what i'll refer to as the events fallacy. the fallacy flowing from the famous comment of harold mcmillan when he was asked what drives british foreign policy. he said events, dear boy, events. it's ease is city to think that when -- easy to think that when you read "power wars" because it's so vividly told and admirably told from the perspective of an insider, that as a policymaker you're always responding to the prior event. and there are no tectonic forces or background conditions that may cause one to weigh the costs and the benefits and identify
the winners and losers in each decision. you're simply reacting as a rational, sensible policymaker to the preceding event. but events are the ocean that policymakers swim in. there are these deeper tectonic forces and background conditions as there were in the case of british foreign policy. i mean, britain historically has sought to prevent the rise of a hostile economic power in the continent and tried to maintain friendly relations with the united states. it's not simply events, just as it was not simply the event of the underwear bomber that everybody in "power wars" is responding to. there are winners and losers in all of these decisions as you rightly point out, and the way policymakers come down in each
case is influenced not unicausally by any set of background conditions or historical drivers such as the permanent security state, but those forces are present. and it would, therefore, be a mistake to think that you look at each decision solely and exclusively on its merits and decide winners and losers without regard to those background conditions. that's not the way policy is driven. >> yes, sir, blue sweater. >> hi, i'm max rosenthal from mother jones magazine. this question is mostly for charlie, if michael would like to answer at all. i'm just curious if at the end of having written this book in current conditions, do you believe that oversight or government control of the national security state actually
is possible? and if yes, what does that require? and if no, what should the response east by the public or parts of the government that are not involved, you know, at the deep state as you call it, what should their response be? >> well, i think we've lived through a couple case studies that cut both ways. so starting with congressional oversight. in his opening remarks, michael talked about the intelligence committee and the agency capture problem. but he was also very critical of the senatorture report. i have a different view of that report, so i think that in the realm of post-9/11 surveillance, the intelligence committees were clearly agency capture. they were not adversarial oversight and searching and rigorously questioning whether
this stuff is necessary, whether it's true that it would have stopped 9/11, whether it is legitimately based in the text of the patriot act, a complete failure of oversight. but i think that the torture report is the most searching, adversarial oversight of the intelligence community that we've seen since the church committee. i mean, it's -- and we've only seen 500 pages of it. so someday someone will hopefully release the other 6,000 words -- pages because the national security bureaucracy seems unlikely to let us see it deliberately. but just to see in it the debunking of the claim that thoroughly -- the thoroughly persuasive debunking of the claim that we would not have found osama bin laden's compound without waterboarding to see what, vividly, what it was to torture someone who turned out not to know anything,
to see the quoting the cia's own cables on things like rectal rehydration and so forth, i think, makes it impossible to go back to that and makes it clear for all of history what that was. and so i think it is still possible because that report shows what it looks like. as far as going forward, you know, i reflect a lot in the book towards the end about the problem of executive branch lawyering and what you do when you have lawyers who work more a president, who are appointed by the president, who are deliberating in secret and in this place where the rules are blurry and there's all this pressure to come up with the expedient theory that lets the boss do the things he thinks are necessary. and it's not like his whim is right, seems like people live or die based on these decisions, and that environment -- and it's never going to come before a court because they just don't hear these cases for a variety
of dock doctrinal reasons. can there really be the rule of law as a substantive manner in that environment? what is the solution? people have, he talks in his book about various proposed solutions as i do too. bruce ackerman at yale law school has suggested, for example, replacing the office of legal counsel in the justice department with an independent judiciary, a tribunal of senate-confirmed judges. no one who's worked in government thinks that's remotely pragmatic, that that would work. it's in terms of these things are happening all the time, and a lot of the discussions are fluid between law and policy and deliberations. there's not a place where you just, everything stops and we'll see what the court says next month when they get around to issuing. that's not how governance functions as a real world matter. that doesn't seem to be a satisfying solution, and the problem is there doesn't seem to be a satisfying solution.
he came up with an idea, and he put it out there. i don't have an alternative idea. so the best aye been able to come -- i've been able to come up with is transparency. the check of public opinion and whether it's, hey, we're rectally rehydrating people, is that what we as a country are all about or whether it's this here's this interpretation of the patriot act that everyone thinks is laughably long once it's dragged into public light, or here's the dilemma, and people say, oh, that is a hard choice, and maybe that was what was necessary in certain circumstances. it needs to be in the public view because the people making the decisions want to be respected by their peers. they're going to go back to the private sector, or they're going to be standing for election or whatever, and the best i can come up with is less secrecy. as a sort of informal, blurry check in the absence of hard checks. >> i think that's all we have
time for if we're going to end at 1:30. i want to invite you all to join us upstairs for lunch on the second level in the george m. yeager conference center up the spiral staircase. these two gentlemen will be selling and signing their books. i've read them both, i recommend them both as highly as i possibly can. both terrific books. please join us upstairs. thank you all for being here. [applause]