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What Trump Could Do With Executive Power

The dangers many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration, and issues left unresolved from the Bush administration, will be handed to the president-elect. Here’s what that means.

Torture

Obama did not prosecute or discipline anyone for torturing people on behalf of the people of the United States.

He did not hold any truth commissions, and ensured almost all of the significant government documents on the torture program remain classified. He did not prosecute the Central Intelligence Agency official who willfully destroyed [1] video tapes of the torture scenes. The president has not specifically outlawed secret prisons and renditions, just suspended [2] their use.

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As with the continued hunting down of Nazis some 70 years after their evil acts, the message that individual responsibility exists should stalk those who would do evil on behalf of our government. “I was only following orders” is not a defense against inhuman acts. The point of tracking down the guilty is partially to punish, but more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state. Never again.

Because of these failures to act, President Trump can, as he has proposed, restart the torture program. Some claim the Central Intelligence Agency won’t participate; if not, a contractor will be found. And if another major terror attack takes place, people at the Central Intelligence Agency will almost certainly be lining up to conduct the torture, as they did last time, knowing it is wrong, but that they will not be held accountable.

Assassinations

Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing [3] of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone.

The only real restraint [4] he imposed was self-restraint. But when you leave a door open, you never know who will walk in.

Because of this President Trump can order drone assassinations. Trump is unlikely to blow up the entire world with the nuclear codes following a Twitter war, but please do not act surprised if his assassination of American citizen targets expands.

Guantanamo

Obama never closed the extra-legal prison at Guantanamo Bay, Cuba, as he promised.

He could have, simply by depopulating it regardless of what Congress might have said. In 2014, when Obama needed five Taliban from Gitmo to help free United States Army soldier Bowe Bergdahl [5] from captivity in Afghanistan, Obama simply ordered those Taliban freed. He could do the same with anyone else there. He could have applied the full pressure of the United States on various countries to accept more freed prisoners. He could have ordered the show trials ongoing at Guantanamo to conclude on an expedited basis.

Obama instead normalized [6] indefinite detention as a policy of the United States, and alongside that (as with torture and drone assassinations), the use of often secret and convoluted legal opinions to justify such executive powers.

So if President Trump choses to start refilling the dank cells at Guantanamo, it should not be a surprise. And with the known legal opinions and court cases (or ones that may still be secret) behind such policies, stopping Trump will require years of counter-litigation.

Espionage Act

Obama prosecuted [7] more federal whistleblowers under the Espionage Act than all previous United States presidents combined.

He sent to jail people who exposed torture [8] and people [9] who allegedly leaked information to journalists showing American complicity in dangerous acts abroad. He had Chelsea Manning prosecuted for exposing war crimes in Iraq. He used the Espionage Act to destroy the lives [10] of others [11] who under any definition except his own would be considered political heroes.

Obama and his Justice Department created the playbook for how to use the previously obscure 1917 Espionage Act to do these things.

So if President Trump uses that playbook to lock up whistleblowers, journalists, and people we might call dissidents, remember to again look the other way.

Freedom of Information Act

The Obama administration set a record [12] (77 percent [13]) for redacting government files or denying access to them in fiscal year 2014 under the Freedom of Information Act.

More than any previous administration, Obama’s took longer to turn over files, said more often it could not locate documents, and refused a record number of times to turn over time-sensitive files quickly, requiring years-long legal actions to be brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.

Though the backlog of unanswered requests grew [14] by 55 percent, the administration cut [15] the number of full-time Freedom of Information Act employees by 7.5 percent. Despite the critical nature of the documents to the election, the State Department was allowed to do its Freedom of Information Act screening [16] of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.

So don’t be surprised if the Trump administration does not end up as the most transparent one ever.

National Security Agency

Obama never realistically reigned in the National Security Agency after the Bush-era Patriot Act allowed them to turn surveillance tools on the homeland. The president, following his predecessor, kept this spying largely secret until whistleblower Edward Snowden exposed it.

Absent a few cosmetic changes, the National Security Agency continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret Foreign Intelligence and Surveillance Court and vaguely Constitutional tools such as National Security Letters [17] and parallel reconstruction [18]. Information lives forever, and the National Security Agency is building bigger data warehouses to keep storing it. President Trump will have that information at his disposal.

Many bleated they had nothing to hide and thus have nothing to fear during the Obama (and Bush) administration, out of trust for a president or fear of terror. Well, on January 20 they can join the rest of us who have been terrified for a very long time.

Peter Van Buren, a 24 year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People [19] and Ghosts of Tom Joad [20]. His next book is Hooper’s War: A Novel of WWII Japan. Follow @WeMeantWell [21]

12 Comments (Open | Close)

12 Comments To "What Trump Could Do With Executive Power"

#1 Comment By Fran Macadam On November 21, 2016 @ 1:49 am

The dirty open secret of warfare is that torture is utilized by all belligerents. In the past, victors’ history writing obscured this truth from an ill informed population. Recent administrations carried on this self-serving mendacious tradition to the present moment, and so will future ones.

However, technology developments have for the moment, even though mainstream media ownership is more monolithic than ever, allowed censored information to be leaked en masse to the public, by alternative conduits such as WikiLeaks and independent grassroots media, changing public perceptions.

As noted, the President’s noble rhetoric has evaded the realities. There’s no doubt that at some level, as the wars continue, torture goes on, with a compliant press that has been ideologically embedded with this administration and hypocritical to their own purported function.

Trump’s endorsement of torture is troubling, but as usual contains a rough honesty. The context of torture always being a function of warfare, however, that reducing or ending destructive and futile wars, good for nothing but profit taking by wealthy weapons manufacturers, will also mean the end or reduction of torture.

Wars always have integral to them torture. It is hypocrisy to pretend otherwise, an exercise in war propaganda.

Reduction of conflict through diplomacy and deal making, to which torture is irrelevant, will mean its end.

Just saying no to war, most especially imperial adventuring and conquest on the other side of the globe, is de facto saying no to torture.

#2 Comment By SteveM On November 21, 2016 @ 9:04 am

The first order of business for Congress should be a veto-proof repeal of the infinitely elastic AUMF, with an invitation to President Trump to negotiate a much more constrained and accountable replacement.

Of course not only won’t that happen, it won’t even be considered. Because passing constitutionally mandated approval is not what an impotent and feckless Congress does. Especially with a Republican back in the White House.

Look for more of the same or even worse.

#3 Comment By Jim Jatras On November 21, 2016 @ 9:46 am

These concerns, primarily in the area of national security, are well-founded. That said, there are some things Trump could do to reverse Obama’s extravagant abuse of his executive authority. The immigration front comes immediately to mind. Another is to rescind a series of faux treaties concocted by the Treasury Department:

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#4 Comment By balconesfault On November 21, 2016 @ 1:09 pm

It is amusing to see in The American Conservative a critique of Obama for not doing many things (prosecuting Bush Administration figures for torture, depopulating Guantanamo against the expressed will of Congress, not kneecapping the NSA) that would have led the entirety of the conservative media outside of TAC to scream that Obama was a pushing a dangerous liberal agenda.

Perhaps what should be done here is celebrate the admittedly few successes Obama had in reining in the excesses of the Bush/Cheney White House, rather than snarky critiques of him for not spending all his political capital on some kind of Quixotic War Crimes tribunal when he had the smoldering ruins of the Bush Economic to rebuild despite the best efforts of a recalcitrant GOP Congress to try to stop any recovery from occurring under a Democratic Administration?

#5 Comment By Howard On November 21, 2016 @ 1:09 pm

The point of tracking down the guilty is partially to punish, but more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.

The most important part had better be to punish the wicked in accordance with justice — otherwise, the same “discouragement” can always be had by punishing a scapegoat. “Neither do you consider that it is expedient for you that one man should die for the people, and that the whole nation perish not” — eh?

#6 Comment By AG On November 21, 2016 @ 2:03 pm

One of Obama’s most popular campaign promises was to close Guantanamo, but he knew better than to advocate doing it in a chaotic way.
Doing the adult thing, and taking responsibility for these captives in accordance with our laws would have involved bringing them within our borders and applying legal process.
Van Buren casually suggests that he could have “Just freed them” and solved the problem….can you imagine what would have come next? Lets keep this discussion serious, and talk about the possible.

#7 Comment By Harold Helbock On November 21, 2016 @ 9:42 pm

I am not sure the usual torture works. On the other hand,in one novel hero Alon uses brutal torture to get information before a very big bomb goes off. Reading the story it is hard to disagree. Maybe if it was San Francisco being attacked the libs would agree to the extreme measures.

I also have trouble with the libs supporting really brutal late abortion procedures that are not permitted in rat experiments but that they support for late term humans. And then they go nuts over being aggressive with murderers and terrorists. It seems illogical.

#8 Comment By Jame On November 22, 2016 @ 12:10 pm

First of I have to admit I am not a conservative, or even American, but with the latest upsets of Trump, Brexit and Le Penn have found myself trying to understand the Conservative mindset more.
I agree with many of your points above about what Obama should have done to to repair the issues caused by the Bush administration.
The one thing Liberals and Conservatives seem to disagree on is the amount of Executives orders issue by Presidents, with Obama being accused of being a dictator by Executive Order by the more extreme opponents.
With Obama having passed the fewest Executive orders of virtually any modern President I’m wondering where this view comes from?
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#9 Comment By cajomu On November 22, 2016 @ 3:24 pm

It would be quite ironic if a Republican Congress were to rein in a Republican president after rolling over year after year for a Democrat one.

#10 Comment By liveload On November 22, 2016 @ 8:08 pm

Here’s an easy one that Trump can do right out of the gate: Stop arming, funding, supporting, and training terrorists. <–period.

Just roll it up, hang the whole thing around the War Party's neck, throw it under the bus and back over it a few times just to be sure. Tell em we have better things to do with our time, money, and people's lives…

#11 Comment By Dakarian On November 23, 2016 @ 4:52 am

“I am not sure the usual torture works. On the other hand,in one novel hero Alon uses brutal torture to get information before a very big bomb goes off. Reading the story it is hard to disagree. Maybe if it was San Francisco being attacked the libs would agree to the extreme measures.”

The trend is that torture is great at getting you ‘information’. The problem is that what you want is the truth. What you get is whatever words the tortured believes will get you to stop. It’s very good at getting innocent people to declare themselves guilty, for example.

And that’s when dealing with typical individuals. Once you get to hardline folks, they tend get confirmation that you are evil based on what’s being done to them and either buckle down more or, again, just feed you whatever lie fits best for the narrative you want them to say.

OTOH, torture that results in saving the day makes for compelling, controversial reading that sells books, adds more clicks, and makes for easy ways to create very invasive and horrible laws. We also love the idea of “giving the bad guys what’s coming to them.”

Also note that liberals who support late term abortions and are soft on terrorists are about as rare as conservatives who believe women should be executed for having abortions. Most liberals and conservatives are much more reasonable and logical in their policy decisions. But again, certain narratives make for great stories.

Truth is, torture isn’t that effective a tool for getting information, thus even if you want to be touch on terrorists and murderers there’s not much point to it unless you’re doing it just for the sake of causing pain to others.

Torture IS a great way to codify and silence a general population, Given that this election is meant to be an example of how the governing elite doesn’t have control over the people, giving them access to a tool to fix that issue doesn’t sound like a good idea.

Or to use a similar technique, if you would trust Trump with the power you suggest, would you trust Hillary, who was really close to getting into the White House, with that same power? As this article shows, what you give to one president follows up to every president thereafter.

As far as what works if torture doesn’t? A good start is to stop training, arming, then pissing off various rebel groups in unstable countries. Pretty much every force we’ve been fighting, if I’m getting my info right, has been a group we’ve empowered in the past, then angered or attacked with the exception of Iran (though you can argue the british built that one up). Stopping this policy won’t help the current struggles but it’ll stop making new ones and help stumble their advertising campaigns. That might work better than reenacting episodes of 24.

#12 Comment By Hugh Guillaume On November 24, 2016 @ 8:31 pm

Lincoln was really the original dictator of the USA. He made regular use of the executive order and paved the way for a long succession of tyrannical presidents including McKinley, TR, Wilson, FDR, Truman, JFK, Bush I, Clinton, Bush II, Obama. A discussion of the executive order that does not begin with or include Abe is not worthy of much attention.