« A theme that runs throughout the book, that Savage outlines at the beginning, is the idea that the Obama Administration was "government by lawyer, methodical and precise—sometimes to a fault," in contrast to the Bush Administration which was "caricatured as government by cowboy."

As he writes:

    Lawyerliness shaped Obama’s governance as a matter of style and thought, not just process. Obama was a lawyer and a law teacher not a CEO, and he chose many other people with law degrees—including his vice president, the secretaries of key cabinet departments and agencies, and several of his White House chiefs of staff—to be members of his team. This was important, because lawyers are trained to think in very particular ways. When analyzing a problem, they try to identify all the issues and grapple with the strongest arguments against their own position. They demand good writing. They attempt to keep options open as an end in itself. They prize rigorous adherence to process. They consider it a judicial virtue to move incrementally and stay within the narrow facts at hand.

By going through various deliberative processes, including the secret interrogation of Abdulmutallab, the end result was the acceleration of the process to hunt down and kill Anwar al-Awlaki, the American-born Muslim cleric living in Yemen. It was al-Awlaki who helped guide the young Nigerian would-be terrorist. Al-Awlaki himself was killed in a drone strike in September 2011.

This key event is one of the stark reminders that in some ways the Obama White House took policy decisions that even Bush did not.

"Even Bush had not signed off on the deliberate killing of a United States citizen without a trial," Savage writes. "And notwithstanding the extraordinary precedent this established for state power and individual rights, the Obama administration would fight for years to keep the basic facts and legal analysis about its action secret from the public."

[...]

One of the most curious things that comes out of the book is the degree of sophistication that the executive branch and law enforcement can take when pushing their agenda. Sometimes, they claim that they have adequate oversight, when they are really obscuring their actions.

A crucial example of this came in the warrantless surveillance (Stellarwind) program during December 2006, when the Bush-era Justice Department submitted a new motion to the FISC. The DOJ wanted the FISC to bless what it had already been doing for five years by essentially doing an end-run around Congress.

    The idea was to reinterpret a word in [the Foreign Intelligence Surveillance Act (FISA)]—facility—that had traditionally been understood to mean a phone number or an e-mail address. For regular FISA orders, after judges agree that a target is probably an agent of a foreign power, they authorize surveillance directed at the specific facilities the target uses to communicate. The executive-branch lawyers argued that facility could mean an entire gateway switch or cable head connecting the American communications network to the global network.

[...]

Similarly, Savage also notes several pages later that when Congress signed off on the Foreign Intelligence Surveillance Act it almost certainly did not intend for the government to be able to perform, en masse, "upstream-style surveillance."

[...]

This month, two state lawmakers in New York and California have introduced legislation that would ban the sale of devices that come with an encryption capability that law enforcement cannot access. Legal experts told Ars that if these bills become laws, they would likely be illegal and would face notable challenges.

[...]

However, the FBI has yet to provide clear metrics as to how many cases died because investigators were entirely stymied by encrypted digital evidence. Indeed, Comey cited a laundry list of examples where unlocked phones enabled prosecutors to successfully bring cases.

At the very end of the book, Savage addresses Executive Order 12333. As Ars reported previously, "twelve triple three" is a presidential order that spells out the National Security Agency’s authority to conduct signals intelligence, among other things. EO 12333 was amended three times under President George W. Bush. Famously, the NSA expanded its domestic surveillance operation after the September 11 attacks without a direct order from the president, who later provided cover under EO 12333.

Savage concludes:

    It is true that the public debate is missing crucial data about the scale of incidental collection of Americans’ communications under 12333 rules. What is the absolute and relative volume of Americans’ messages in the 12333 storehouse? For there to be meaningful self-government on this issue—to debate whether the rules for collecting, searching and using those private messages are the right rules—one would have to know that answer. To date, the NSA has not provided it. One intelligence official told me that the types of data the NSA collects are so varied that is simply too hard to come up with a representative sampling and do a valid study.

It's clear that national security, surveillance, and technology are set to become even more intertwined as the 21st century marches on. Yet as lawmakers, journalists, lawyers, cryptographers, and activists continue to butt heads over these issues, a clear consensus seems far, far away. »