President Bush defined the September 11, 2001 terrorist attacks as “acts of war.” His response was to promulgate policies, domestic and foreign, geared to protect against any future attacks against the United States. He urged swift passage of legislation that delegated vast new powers to the executive branch through the USA Patriot Act and two use‐of‐force resolutions, issued an executive order authorizing military tribunals, and announced a new national security strategy of preemption. These policies centralized power in the executive branch, and shifted it from Congress and the courts.

The Office of White House Counsel sits at the intersection of law, politics, and policy. Its distinctive challenge is to advise the president to take actions that are both legally sound and politically astute. Often called "the president's lawyer," the counsel's office serves, more accurately, as the "presidency's lawyer," with tasks that extend well beyond the exclusively legal. Drawing on interviews with previous occupants of the office, the authors examine the unit's numerous activities, its place in the larger White House and executive branch, and the experiences of those who have served as counsel.The White House counsel's office is at the hub of virtually all presidential activity. Its mandate is to be watchful for and attentive to legal issues that may arise in policy and political contexts involving the president. To fulfill this responsibility, it monitors and coordinates the presidency's interactions with other players in and out of government. Often called "the president's lawyer," the counsel's office serves, more accurately, as the "presidency's lawyer," with tasks that extend well beyond exclusively legal ones. These have developed over time depending on the needs of different presidents, the relationship between a president and a counsel, and contemporary political conditions. Today, the office carries out many routine tasks, such as vetting all presidential appointments and advising on the application of ethics regulations to White House staff and 561 Presidential Studies Quarterly 31, no. 4 (December)

The Obama administration struggled throughout its first term to live up to its campaign promises to reverse the most objectionable of the Bush administration's counterterrorism policies and to govern by “rule of law” principles. It is clear that most of these policies continued with minimal changes, and some even expanded to include more controversial elements such as targeted killings. The most visible policy failure has been the inability to close the military prison at Guantanamo Bay. Efforts to accomplish this closure became entwined with two other unfulfilled campaign promises—rejection of the use of military commissions for prosecuting terrorist suspects and halting the practice of indefinite detention of uncharged suspects. In this article I analyze the impact of the role played by the rivalry for influence between White House political advisors and policy principals, on the one hand, and executive branch legal advisors, on the other, on the failure to roll back Bush's counterterrorism policies.

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Since the ratification of the Twenty‐Fifth Amendment in 1967, presidents have been advised by White House counsels on how and when to apply the sections that address temporary vacancies in the office of the president and transfers of power during such times. Early experience with presidential illness and incapacitation under the amendment during the Reagan administration indicated that counsels recognized the constitutional and practical purposes of these provisions, but encountered opposition from presidents and political advisers who viewed any temporary transfer of power as politically damaging to an incumbent president. More recent experiences suggest that counsels have been moderately successful in impressing the need for prior arrangements between presidents and their vice‐presidents on matters of incapacitation.