President Obama, after running one of the least transparent administrations despite promising during his first presidential campaign to run the most transparent, seems to have realized that it may not be wise to place all the executive power he has taken up and used, especially those of ubiquitous surveillance, the use of drones for the murder of people, relentlessly undermining the rights of courts to review its actions, and of people to seek judicial relief, in the hands of Donald Trump. He has now issued a 61-page document with the title REPORT ON THE LEGAL AND POLICY FRAMEWORKS GUIDING THE UNITED STATES’ USE OF MILITARY FORCE AND RELATED NATIONAL SECURITY OPERATIONS that insists that the executive powers he used are limited, presumably to prevent Trump from going wild with them.
Alex Emmons discusses what the document contains and what might have motivated its issuance.
Anticipating that Donald Trump might try to fulfill his promises to “bomb the shit” out of terror groups and do a “hell of a lot worse than waterboarding,” President Obama released a report on Monday summarizing his administration’s views of the legal barriers and policies limiting the president’s military power.
The 61-page report calls for trying terrorism suspects in civilian court and explains at length why no future president could legally torture detainees. It lays out the administration’s self-imposed limits on military operations — and declares that a 2001 resolution Congress passed in the wake of 9/11 is not a blank check to go to kill alleged terrorists wherever they are.
“It clearly reads like an explanation, a textbook that’s left for the next person,” said Naureen Shah, director of the Security With Human Rights Program at Amnesty International. “Here are all the things you cannot do.”
But in trying to defend Obama’s legacy, the report paints a picture of an administration far more restrained than it was in practice.
It is Obama himself who has opened the door to widespread abuse even as he continued to increase those unchecked powers.
Obama dramatically escalated the use of drones to kill alleged terrorists far away from recognized warzones. In an October interview with New York Magazine, Obama noted that his executive reforms to the drone program were motivated by concern he would hand off a killing program with no oversight or controls. “You end up with a president who can carry on perpetual wars all over the world, and a lot of them covert, without any accountability or democratic debate,” said Obama.
But more quietly, Obama has continued to expand the power of the president to wage covert war. The Washington Post reported last month that Obama was elevating Joint Special Operations Command – the government’s high-level team for global killing missions – into a “ new multiagency intelligence and action force,” with expanded power to launch attacks on terrorist groups around the world.
With this document, Obama has begin the process of trying to protect his reputation and himself from any responsibility for what Trump will do with the powers that he has bestowed on him. In the opening lines of the document, Obama laughably tries to claim that he and the nation have always been driven by high principles.
From President Lincoln’s issuance of the Lieber Code during the Civil War to our nation’s leadership at the Nuremberg Trials following World War II, the United States has a long history of emphasizing the development and enforcement of a framework under which war can be waged lawfully and effectively, with due regard for humanitarian considerations, and consistent with our national interests and values.
Consistent with this long tradition, since my first days in office I have underscored the importance of adhering to standards—including international legal standards—that govern the use of force. Far from eroding our nation’s influence, I have argued, adherence to these standards strengthens us, just as it isolates those nations who do not follow such standards. Indeed, as I have consistently emphasized, what makes America truly remarkable is not the strength of our arms or our economy, but rather our founding values, which include respect for the rule of law and universal rights.
It is only within the US that such things can be said with a straight face. The last sentence is actually the opposite of the truth. It is only the strength of its military and economy that makes the US remarkable, not its commitment to the rule of law and universal rights. The US record of violating international law and human rights is so blatant and extensive that it is hardly worthwhile to list all the counter-examples.
As Emmons writes, this is part of a belated Obama propaganda offensive that is belied by its actions.
As for its discussion of the drone program, Monday’s report repackages many of the Obama administration’s favorite propaganda lines for the next president: The report refers to assassinations with the hazy phrase “targeted lethal force”; It adamantly maintains that the U.S. has a preference for capturing terrorists over killing them, while it has routinely demonstrated the opposite; and the report celebrates the clandestine killing program for its “transparency,” despite the fact that the president did not publicly discuss the program until 2013. In addition, most of the documents made public from the program were released due to leaks, Congressional pressure, and lawsuits.
The report also adopts the administration’s practice of whitewashing civilian death tolls, arguing that the administration’s record on civilian casualties exceeds “the safeguards that apply as a matter of law in the course of an armed conflict.” Earlier in the summer, the administration released a ludicrously conservative estimate of the number of civilians killed by U.S. drones in Pakistan, Yemen, and Somalia. The administration claimed that they had killed between 64 and 116 civilians, while independent estimates say the number could be as high as nine times that.
In outlining standards “for the use of lethal force,” the report advocates a “near certainty” standard that the target is present, and that innocent people not be injured or killed. In doing so, the Obama administration is advocating a policy that they have appeared to repeatedly violate – including when U.S. drones struck a Yemeni wedding party in December 2013, and in January 2015, when the CIA killed two aid workers held hostage in Pakistan.
The report outlines additional legal safeguards the Obama administration claims it applied before it killed American citizen Anwar al-Awlaki – the only American citizen who it says was hit by a “specific, targeted strike.” The report does not mention the other seven U.S. citizens who were killed by drones.
The report boasts that American citizens have due process rights under the Fourth and Fifth Amendment no matter where they are, and cautions the Trump administration to take Constitutional rights into consideration when “assessing whether it is lawful to target the individual.”
But the Obama administration has consistently fought to undermine those Constitutional protections. For instance, it has argued that citizens cannot go to court to challenge their place on a government kill list, and courts have no role to play in oversight after a strike has taken place.
It is madness to think that an autocrat like Trump is going to pay any attention to any restrictions left behind by Obama and follow the finely-tuned distinctions that this document lays out. He will think that he has every right to use all those powers and more if he feels like it, and all those Democrats and liberals who excused Obama’s actions because they thought Obama is a good guy will have no moral standing to oppose him. Many of them even condemned whistleblowers like Edward Snowden and others because they revealed abuses that were done during the Obama administration. What will they say about any future whistleblowers who reveal unsavory things about the Trump administration?
People never learn that if one does not act on the general principles of morality, human rights, and domestic and international law, and instead approves or disapproves actions on the basis of whether one likes or dislikes who does them, then you open the door to the worst excesses of narcissistic autocrats who will not hesitate to use the powers that you so casually gave away to your ‘friends’. Executive power tends to go only in the direction of increasing them. Lord Acton’s quote that “Power tends to corrupt and absolute power corrupts absolutely” is more than a cliché and has been shown to repeatedly apply in practice.