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.
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 video tapes of the torture scenes. The president has not specifically outlawed secret prisons and renditions, just suspended their use.
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.
Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone.
The only real restraint 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.
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 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 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.
Obama prosecuted more federal whistleblowers under the Espionage Act than all previous United States presidents combined.
He sent to jail people who exposed torture and people 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 of others 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
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 by 55 percent, the administration cut 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 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 and parallel reconstruction. 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 and Ghosts of Tom Joad. His next book is Hooper’s War: A Novel of WWII Japan. Follow @WeMeantWell