Sounding the Alarm

Obama does not deserve all of the blame for fortifying the national security state. He was aided by Democrats and liberals no longer willing to speak out against and oppose war and civil liberties abuses for fear of dinting their standard-bearer.

When George W. Bush was in power and set about creating this vast system and asserting the right to ever more extreme unilateral powers in the name of national security, Democrats were outraged, decrying these measures as an attempt to create an “imperial presidency.”

Seven years later, as one of their own was handed the reins to this extraordinary power, this outrage melted away. Rather than use Obama’s election to dismantle the national security state they had once railed against, Democrats allowed it to expand under Obama’s virtuous hand.

As Democratic leaders and liberal pundits ignored issues of civil liberties and presidential excess, relegating what was once a central critique of Bush into a niche issue, various commentators sounded the alarm over entrusting Obama with such expansive powers. In 2012, speaking about the Obama administration’s drone program, the ACLU’s Hina Shamsi stated:

Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.

A year later, the Atlantic’s Conor Friedersdorf wrote about the broad national security powers claimed by Bush and Obama, warning that such tools could eventually be misused by a tyrant:

Yes, it could happen here, with enough historical amnesia, carelessness, and bad luck. We’re not special. Our voters won’t always pick good men and women to represent us. Some good women will be corrupted by power, and some bad men will slip through.

As Jeremy Scahill said earlier this year, before Trump had even become the Republian nominee, “It will be very interesting to see, if a Republican wins, how many of the MSNBC pundits and other, you know, so-called liberals — what their position will be on these very same policies.”

The basic argument civil libertarians stressed again and again was simple: You might like the current president. You might even trust him or her. But all leaders eventually transfer power to someone else — someone not likely to share your political beliefs or party affiliation.

As Glenn Greenwald suggested when he questioned if liberals would trust figures like Sarah Palin and Newt Gingrich with such powers, the alarm over the latest field of unhinged GOP nominees that comes around every four years should have made progressives particularly attuned to this fact.

Some were. After all, back in 2012, when the prospect of Mitt Romney becoming president was looming, the Obama administration rushed to establish rules around its totally lawless and oversight-free drone program in case he won. After Romney lost the election, these efforts again took a back seat.

Well, the new Republican president is not Mitt Romney. He’s Donald Trump, a thin-skinned narcissist who openly despises protesters and journalists, has suggested mudering the families of terrorists and stealing other countries’ oil, wants to reinstitute torture, and has vowed to “bomb the shit out of ISIS.” Exactly what powers is this man going to have upon taking office?

Assassination by Drone

For one, Trump will inherit Obama’s drone program, something which Obama himself inherited from Bush, then set about dramatically expanding. Trump will be able to sit in the oval office, flip through “baseball cards” of various allegedly unsavory individuals, then without any due process, order them to be zapped from the sky.

The targets for assassination appear to be currently determined through a process of intelligence gathering, then sent up the chain to be approved for killing. However, with no real oversight or legal limits on the program, it’s hard to see what would legally prevent President Trump from ordering the assassination of anyone he chooses.

Not only that, but Trump will conceivably be able to order the “targeted killing” without trial of even American citizens. Despite the unconstitional nature of this power, the Justice Department under the Obama administration issued a memo in 2010 that gave legal justification for skipping a trial for US citizens when targeted under the broad scope of the Authorization to Use Military Force (AUMF) law, passed in 2001 as part of the “War on Terror.” (The memo only came to light in 2014, because the administration refused for years to reveal its reasoning to the public).

The administration then used this legal justification to assassinate at least four US citizens with no due process, including — in a completely separate drone strike — one suspected terrorist’s innocent, sixteen-year old son. When challenged on the administration’s right to do such a thing, Obama’s press secretary at the time replied that the boy “should have a far more responsible father.”

And in 2013, Obama’s Attorney General Eric Holder declared that this power of extra-judicial assassination even extended to US soil. While “entirely hypothetical” and “unlikely to occur,” he wrote in a letter to Kentucky Senator Rand Paul, “it is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate … for the president to authorize the military to use lethal force within the territory of the United States.”

Thanks largely to the Obama administration’s legal machinations, Donald Trump will soon have the power to unilaterally order the murder of anyone, anywhere on Earth.

Unlimited War

Trump can thank the previous two administrations for what amounts to a boundless and unchecked ability to start wars. Both Obama and Bush have stretched the limits of their legal authority to take the United States into war. Under both, the United States has led a secret drone bombing campaign in a total of eight countries, killing more people than died on September 11, many of them civilians.

Obama has also repeatedly stretched the AUMF — which was specifically limited to using force against the groups responsible for the September 11 attacks — to attack ISIS in Iraq, Libya, and Syria, declaring the group an “associated force.” Without any formal declaration of war, the United States currently has ground troops in all three of those countries — thousands, in the case of Iraq.

There was also the Obama administration’s illegal (and disastrous) war in Libya, launched unilaterally with no approval for Congress. While the War Powers Resolution allows the President to at least seek approval from Congress within sixty days of starting hostilities, Obama didn’t even do that, declaring that the military action didn’t fall under the law.

As a result, Yale Law Professor Bruce Ackerman charged Obama with “bringing America closer to the imperial presidency than Bush ever did.” It’s difficult to believe a Trump administration wouldn’t build on these precedents to send troops, fighter jets, and any other form of military presence to a panoply of countries at his whim.

Going After the Press

The notoriously press-hating and transparency-averse Trump will also have ample precedent to wage a war on journalists and whisteblowers and keep his administration shielded from scrutiny. The Obama administration has set new records for government secrecy, more than tripling the number of classified documents between 2008 and 2014 and censoring or witholding access to more government files than any other administration in history.

Both Bush and Obama have also abused the “state-secrets” privilege, using it to shield the government from lawsuits by innocent men who were wrongfully imprisoned and brutally tortured under Bush. Trump — who won’t even release his tax returns — will no doubt find these examples convenient should his administration ever find itself in a similar bind.

More alarming is the potential for further abuse of the Espionage Act. Until Obama came into office, the Espionage Act — a World War I-era law passed to protect against German spies — was used only four times in the last 100 years to bring criminal cases against officials who leaked to the press.

Obama has used it eight times over his eight years in office, and at one point threatened to send a journalist to jail when he refused to name his source in a trial. On more than one occasion, the Obama administration spied on reporters to find their sources, looking through phone records and emails, even labelling one journalist a “co-conspirator” in a leak.

The administration ultimately backed off in the latter case, but cumulatively, the administration’s actions have served to normalize government hostility to and punitive action against both journalists and, especially, whistleblowers. Trump — who has made open hostility towards the press a centerpiece of his campaign, calling journalists “dishonest,” “scum,” “disgusting,” and the “worst people I’ve ever met” — will likely run with this with even less of the already meager restraint shown by the Obama administration.

Surveillance’s All-Seeing Eye

Other than Obama’s assertion of the right to kill anyone anywhere on the planet without trial, the most consequential power Trump will inherit come January is control over the United States’ vast surveillance state, which every day collects and stores our emails, texts, internet history, and a variety of other intimate data — a dream for any aspiring tyrant.

If Richard Nixon — another thin-skinned paranoiac with authoritarian tendencies — were alive to see the vast spying apparatus that has sprung up in the wake of September 11, his mouth would water. Recall that when Nixon wanted to discredit whistleblower Daniel Ellsberg in 1971 by digging up embarrassing information about him, he had to order a group of men to burgle his psychatrist’s office. Nowadays, he could simply monitor his emails and browsing history.

As people have been warning for years, the combination of the NSA’s dragnet surveillance with its weak oversight and continued absence of meaningful checks and balances means it is practically begging for abuse by an unscrupulous politician. From all indications, abuse is already rife.

When NSA employees aren’t listening to phone sex or passing around your nude selfies, they’re collecting information on people’s porn habits in order to later discredit them. And although a bill passed last year means the NSA now requires warrants to collect phone records, the agency continues to vacuum up and search other data in bulk.

The injection of a President Trump into this equation takes things up another notch. Trump threatened to “spill the beans” (whatever that meant) about his political rival’s wife on the campaign trail and vowed to imprison his election opponent last month. He was mentored under Joe McCarthy’s right-hand man Roy Cohn, who taught him the value of being as vicious and underhanded as possible to destroy his enemies. He claimed that his opponents “hit me and I hit them back harder and they disappear.”

What will such a man do with the full power of the American surveillance state at his fingertips?

At best, Trump will simply allow federal intelligence agencies to involve themselves in domestic law enforcement in order to achieve his vision of “law and order,” as some experts already fear. A set of intelligence agencies that operate with few restrictions makes this prospect much more chilling, given domestic law enforcement agencies’ record of targeting law-abiding activists or peaceful drug users.

Only Scratching the Surface

All of this is concerning enough. But it does not even mention matters like the administration’s continuation of the policy of “extraordinary rendition” — the kidnapping and shuttling of people to countries that torture suspects — its ongoing use of military courts, and its failure to shut down Guantanamo Bay, all opening the door for President Trump to resume the excesses of the Bush era.

There’s also the administration’s embrace of the government’s power to indefinitely imprison anyone without trial, even outside of a battlefield. Obama originally signed this provision in 2011 with “serious reservations” — though not serious enough to stop him from continuing to sign it into law year after year.

Without exception, these were all policies liberals were either largely silent on — despite their vociferous opposition to Bush and the similar policies he put in place — or actually supported, once placed under the watch of their favored candidate. As a 2012 Washington Post–ABC News Poll found, 77 percent of self-described “liberal Democrats” supported Obama’s drone program, and 53 percent supported keeping open Guantanamo — once a symbol of everything the broad Left loathed about the Bush years. Around the same time, liberal commentators were making tortuous arguments like this one justifying the extrajudicial killing of US citizens by fiat with little regard for the kind of precedent it might set.

A Last-Ditch Effort

If Obama and other horrified Democrats were and are truly sincere in their pronouncements that Trump is uniquely unfit to hold office, then they should spend the next three months attempting to roll back the extensive national security powers of the president.

There are limits to how much they can do. Preventing the administration’s elastic interpretation of the AUMF and unilateral war-making, for example, is a matter of political will by Congress, which could assert its power to restrain the president.

But in his last few months, Obama could work to pass a bill that creates further meaningful oversight of and reforms to the NSA, such as ending the indiscriminate collection of internet data. They could amend or even repeal the Espionage Act to ensure it can’t be used against whistlebowers and journalists once Trump enters into office.

Obama could insist on an amendment to the National Defense Authorization Act that repeals the language allowing for indefinite detention of individuals before he signs the bill for the last time. And while Obama did create a “Rule Book” that formalized the drone program (with numerous holes and exceptions), he could give up the president’s unilateral power to order death from the sky and treat it as what it is: an act of war that requires Congressional approval and oversight, and requires strict legal limits.

Would such measures all pass, particularly this late in the game? Possibly not. But given the unique danger of the Trump presidency — as Democrats and liberals never tired of reminding the public when they were still trying to win the election — surely it’s worth a shot.

Many Democrats will hopefully return to their antiwar, pro-civil liberties stance as soon as Trump enters the White House. But Donald Trump’s victory should convince other liberals that concerns about civil liberties and presidential power are not mere academic exercises or useful tools for beating on political opponents. As we’re about to find out, ignoring them once in power has very real consequences.