For nearly eight years, President Obama massively expanded his authority on national security issues: on the prosecution of whistleblowers, secret surveillance courts, wars without congressional authorization, and drone campaigns without public oversight. During this time the left, with the exception of some civil liberties groups, remained largely silent.
But now this entire apparatus is being handed over to Donald Trump, a president with a penchant for authoritarianism, who will no doubt point to Obama as precedent to justify the continuation, and perhaps broadening, of these national security excesses.
“Many Americans were willing to invest broad power in the presidency because they trusted the president. But obviously the powers that we invest outlast any particular president, and now those powers are available to Trump,” said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. “That was a profound mistake on the part of the Obama administration and Americans generally.”
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A President Trump is unlikely to roll back any of the powers of the presidency—in fact, as a candidate, he did everything he could to suggest that the person who occupies the Oval Office had magical powers to fix the economy, destroy ISIS, and suppress crime.
“Part of Trump’s appeal was that he promised to be the kind of president Americans think a president can be… a combination of God and Superman,” said Tom Nichols, a professor at the U.S. Naval War College, and a prominent Never Trumper during the campaign.
Those opposed to Trump’s presidency have already begun street protests in anticipation of highly controversial term. Just wait until they realize what expanded powers Obama administration is leaving for him.
“We should have built the system of a Trump in mind… instead it relies on the good faith and judgment of the people in charge,” Jaffer said.
President Obama is not only leaving behind a set of wars across the Middle East—in Iraq, in Syria, and in Afghanistan—but also the precedent that a president can engage in these wars without Congressional authorization.
“President George W. Bush got the United States into two big wars in Iraq and Afghanistan, but with both wars he went to Congress and got specific authorization… President Obama did not do that,” said Chris Anders, the deputy director at the ACLU Washington Legislative Office. “The United States has been taking very significant military action… without Congress ever declaring war or authorizing the use of military force… it upended the constitution’s delegation of authority to declare war to Congress alone, and Congress allowed that to happen.”
While Obama ended the use of torture, he has continued to use drone strikes against terrorists abroad—authorizing hundreds of strikes that have killed thousands of terrorists, according to estimates cited by The New York Times.
“The Obama administration has built a legal infrastructure for targeting killing that is not subject to any meaningful oversight by other branches,” said Jaffer, who is the author of the book The Drone Memos.
His administration also targeted and killed American citizen Anwar al-Awlaki in Yemen, justifying this because he was an al Qaeda jihadist who was a top propagandist and recruiter for the group. Civil liberty advocates criticized the move, arguing that there had been no judicial process or trial to determine his guilt before the strike occurred.
“The Obama administration has set a whole series of precedents by… targeting American citizens and then claiming the courts have no role to play in evaluating the lawfulness of the killings,” Jaffer said.
To make things worse, the administration then engaged in a drawn out battle with the ACLU and the New York Times to prevent its internal legal justifications from being released. It took years for a federal court to release a secret government memo that the Obama administration had tried to keep from the public.
“It shouldn’t have to be the case that the ACLU or media organizations need to sue the government to get basic legal documents on the government’s view of what the law means, that no government should have a body of secret law on national security matters, including on what authority the president is claiming to kill a United States citizen without trial,” Anders said.
The precedent of “secret laws” and legal justifications hidden from the public preceded President Obama, Anders added, “but he has not taken the transparency to heart that we would hope to see in a president.”
As a candidate, Trump repeatedly went after the press: accusing them of being “rigged” and “unfair,” pointing out particular reporters he didn’t like during rallies, and promising to “open up” libel laws to more easily sue news organizations.
Obama has left him a chilling legacy to continue with regard to the Fourth Estate. In an unusual move, his Justice Department subpoenaed the telephone records of journalists working for the Associated Press to track down a leak. And it investigated a Fox News reporter as a probable “co-conspirator” in another national security case in order to get his emails and phone records.
The Obama administration also used the Espionage Act against whistleblowers who shared secret information with reporters more often than all previous administrations combined.
“It wouldn’t be surprising to see a crackdown to prosecute whistleblowers. The Trump administration without question would be able to say, well, the Obama administration did this all the time. And that’s indisputably true,” said Chris Calabrese, vice president of policy at the Center for Democracy & Technology.
Trump will also have unprecedented snooping abilities that the United States built up after the 9/11 attacks. As president, Trump will inherit powerful, global surveillance systems that has the capability to tap into sensitive communications for millions of people, according to the Electronic Frontier Foundation. And much of it continues to be secret.
“What the Obama administration did was normalize a lot of the surveillance that was started under the Bush administration… gathering lots and lots of information, not just about foreigners but about people in the United States. The controls that they put together were at the executive or agency level that can be wiped away,” Calabrese said.
“We’ve built these huge data collections apparatuses after 9/11, and now we’re relying on the goodwill and the decency and honesty of intelligence officials to make sure they’re not misused,” he added.
Many constitutional scholars and politicians on the right have spent the last eight years rallying against the Obama presidency, arguing that he had overstepped his powers, especially with regard to national security.
But this is now likely to yield to protests from the left, with the same criticisms applying to Trump.
“For eight years Republicans have complained that the presidency was too powerful, that President Obama ruled like a dictator, and that the powers of the presidency needed to be curbed,” Nichols said. “My guess is that they’re not going to be very serious about that principle.”
With the shoe on the other foot, the left may soon realize how terrifying some of the president’s authorities can be.
“If you are concerned about overreach of executive authority, and the only thing that was keeping your concerns at bay was that President Obama had that authority… [it’s] going to come back to bite people in the rear, because now a President Trump will rely on those same authorities,” said Bradley Moss, a lawyer specializing in national security law.
Thanks, Obama.
