The problems many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration will be transferred to the president-elect. Here’s what that means.
Obama did not prosecute, fire 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 government documents on the torture program remain classified. He did not prosecute the CIA official who willfully destroyed video tapes of the torture scenes. He has not specifically disavowed 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 must stalk those who would do evil on behalf of a government. “I was only following orders” is not a defense against inhuman acts. The purpose of tracking down the guilty is less to punish and more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.
Because of these failures President Trump can, as he has proposed, restart the torture program at any time. Some claim the CIA won’t participate. Some always will of course, and if not at CIA, then a contractor will be found. And if another terror attack or two take place, then people at CIA and elsewhere in government will be lining up to conduct the torture as they did last time. They know they will never be held accountable. Indeed, Trump is apparently considering the CIA official who destroyed the torture tapes, Jose Rodriguez, to head up the agency.
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 codified is self-restraint. When you leave a door open, you never know who will walk in.
Because of this President Trump can do the same thing. Trump is unlikely to blow up the entire world with the nuclear codes, but please do not act surprised when his choice of American citizen targets may not match up with yours.
Obama never closed Guantanamo as he promised. He could have, simply by depopulating it regardless of what Congress might have said. In 2014 when Obama needed to trade five Taliban from Gitmo for U.S. Army soldier Bowe Bergdahl 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 U.S. on various countries to accept freed prisoners. He could have ordered the show trials to be conclude.
Obama did not do these things. He instead normalized indefinite detention as a policy of the United States, and alongside that, as with torture and drone assassinations, the use of secret, convoluted legal opinions to justify such executive powers.
So if President Trump choses to start refilling the cells at Guantanamo, and reminding the world of the lengths a frightened America is willing to go to imprison a single man, it should not be a surprise. And with the “legal” opinions, including ones still secret, behind such policies, stopping Trump will require years of counter-litigation never even begun under the Obama administration.
Obama prosecuted more federal whistleblowers as spies under the Espionage Act than all previous U.S. 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 hereto obscure Espionage Act to do these things.
So if President Trump, perhaps with an attorney general Rudy Giuliani, uses that playbook to lock up whistleblowers, journalists, and people you might call dissidents and political prisoners, remember to again look the other way.
Freedom of Information Act (FOIA)
The Obama administration set a record for redacting government files or outright denying access to them in fiscal year 2014 – some 77% of FOIA requests were redacted or denied outright. More than any previous administration, Obama took longer to turn over files, said more often it couldn’t find documents and refused a record number of times to turn over newsworthy files quickly absent lawsuits 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%, the administration cut the number of full-time FOIA employees by nine percent. Despite the critical nature of the documents, the State Department was allowed to do its FOIA 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.
Obama never realistically reigned in the NSA after the Bush-era Patriot Act allowed the agency to turn its surveillance tools on the Homeland. Absent a few cosmetic changes, NSA continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret FISA court and vaguely Constitutional tools such as National Security Letters and parallel reconstruction. Information lives forever, and the NSA is building bigger data warehouses to keep storing it.
President Trump will have that information about you at his disposal. And so all who 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, now you can join the rest of us who have been terrified for a very long time.
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