President Obama’s belated attempt at limiting executive abuse


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.

Comments

  1. sonofrojblake says

    “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.

    I think he meant to say “After 2008 you ended up with a president who could carry on perpetual wars all over the world, and a lot of them covert, without any accountability or democratic debate,.”

    Even now, knowing history will probably remember him as “Drone-bama”, it’s hard to hate him for it, isn’t it?

    [Trump] 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

    And the annoying thing is, he will be right.

  2. Randall Lee says

    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.

    .
    All government is at its very core “executive power”, no matter if it is described as legislative or judicial or otherwise. This is because without the actions of the executive, legislative acts and judicial fiats lay dormant.

    But 99.9% of people are superstitious (including those who frequent this blog, myself excluded) and will never require everyone to act on “general principles of morality”. If that were done then they would be forced by their own morals to give up their childish superstition that government is necessary.
    This 99.9% are quick to admit ( or should be) that the principle of doing no harm to another human is not to be violated, while at the same time indirectly engaging in every sort of murder and thievery possible in order to sustain the manner of life and supposed security they so superstitiously hold dear.
    No government can exist, or ever did exist, without grand thievery and murder. This is the price the 99.9% pay to hold to their superstition and ignore the very basic principles of morality. So, yes, it seems you are right, people, at least not very many, never do learn (at least not so far) to follow general principles of morality, choosing to follow antiquated superstitions instead. But those same people expect even a 3 year old to recognize and conduct himself or herself according to this simple principle as they interact with other children.

    No one should wonder even once why the youth perceive the adults as hypocrites and their cultural establishment as plastic.

  3. Randall Lee says

    sonofrojblake points out the OP comment

    [Trump] 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.

    Then sonofrojblake states,

    And the annoying thing is, he will be right.

    But this is not “right” in terms of being correct. Just because Obama was a murdering despot does not grant Trump any right to follow in his footsteps. And just because Trump may think he “has every right to use all those powers, and more if he feels like it” does not create the right.

  4. says

    Mano, have you not been paying attention this whole year?

    Principles are for privileged hipsters.
    Don’t let perfect be the enemy of good.
    Checking for destructive policy in a candidate is a purity test and it’s wrong.

    In any case, since Obama is black, criticizing him is racist. You wouldn’t be upset at his power abuses and short-sightedness if he were white. Black politicians have it hard enough as it is without you being all justifiably concerned and shit.

  5. Mobius says

    It is Obama himself who has opened the door to widespread abuse even as he continued to increase those unchecked powers.

    I would say it was Bush-Cheney that opened that door, but that Obama failed to close it, and even pushed it a bit wider ajar. Yes, Obama has failed in bringing back a more limited presidency and Trump will likely use that precedent to expand presidential power even more. Given his authoritarian statements and what seems to be his personality, this is almost inevitable. Sad, but true.

  6. Mobius says

    …an autocrat like Trump…

    My reading of Trump’s rhetoric is that he thinks of the president as king, someone that everyone else, including Congress and SCOTUS, must bow down to. His statement about Putin being a strong leader and Obama a weak leader, IMHO, come from this opinion. In Trump’s view, Obama let Congress push him around rather than putting his foot down and forcing Congress to toe the line. I think Trump has very little understanding of the separation of powers between the three branches of government.

  7. Holms says

    I like the fact that he cited the Nuremburg Trials, in which the only nation to nuke a not one but two civilian population centers gave themselves a free pass. Winner’s prerogative, I guess.

  8. sonofrojblake says

    Funny you should mention Nuremburg. Over and over I see references from self-righteous “not in my name” lefties referring to either George W. Bush or Tony Blair, or both, as “war criminals”. And yet oddly, I am yet to see Obama referred to in those terms, although he is at least as deserving of the label. To paraphrase Ali G – is it because he be black?

  9. sonofrojblake says

    @Randall Lee, 3:

    this is not “right” in terms of being correct

    On the contrary, it is precisely that.
    Trump will have those powers. He will have the right (in the sense of legal privilege) to use them. He’s not creating the precedent about what the president can do – he’s just potential using powers Obama and others have made sure the President has. He may even (worst case) extend those powers – but again, that’s nothing previous presidents, Obama included, haven’t already done with little or no opposition.
    And if you didn’t oppose the holding and/or exercise of those powers by previous Presidents, including and especially Obama, then you have no moral standing to oppose the use of those powers by Trump – on that he will be right as in correct.

  10. John Morales says

    sonofrojblake:

    Over and over I see references from self-righteous “not in my name” lefties referring to either George W. Bush or Tony Blair, or both, as “war criminals”. And yet oddly, I am yet to see Obama referred to in those terms, although he is at least as deserving of the label. To paraphrase Ali G – is it because he be black?

    Blair and Bush invaded Iraq and Afghanistan; what countries did Obama invade?

  11. sonofrojblake says

    what countries did Obama invade?

    Interesting question. It depends on your definition of “invade”.

    You might mean “apply lethal military force inside a sovereign nation’s boundaries without their cooperation or permission to advance the interests of the USA”. In which case, people have died in US incursions into Somali, Libya and Yemen, and probably as a result of military “advisers” dispatched to Nigeria.

    If it’s actual boots on the ground you need, rather than sudden and unaccountable death from above, then I’m not clear whether the US has the full cooperation of President Assad of Syria in its deployments of special forces units there to help rebel groups fight IS. And then most obviously there’s probably the single most famous military operation of the last twenty years – an incursion into a sovereign state by heavily armed special forces troops with a mission to carry out an assassination. I amazed you’d forget that. Helis in the sky, boots on the ground, and bullets into bodies on the territory of a supposed ally – the US invaded Pakistan, for as long as it suited them, then bugged out.

    I’d concede that Obama hasn’t AFAIK caused anything on the scale of Bagram or Abu Graihb to be built, but I’d put that down to a difference in style. Bush and Blair were the big aggressive drunks outside the pub swinging their fists in the open. Obama’s more of an alleyway mugger. Chacun a son gout, I guess.

  12. Holms says

    ^ The position of the US government appear to be that unless they explicitly declare war, no action America does constitutes an act of war no matter how closely it resembles such.

  13. sonofrojblake says

    Indeed. I remember being a bit confused as a kid in 1982 why the news only ever referred to the Falklands as a “conflict”, rather than what it obviously was, i.e. a war. But no war was ever declared by either side, so technically…

  14. John Morales says

    John Morales@#10:
    what countries did Obama invade?
    Libya, Syria, Yemen, and Iraq.
    … Also Pakistan. But only briefly, to assassinate someone.

    OK, I meant conquered, not invaded.

    I feel there’s a qualitative difference between the full defeat of a State’s armed forces and rulers and military occupation in contrast to acts of aggression in the pursuit of geopolitical goals which fall short of the former.

  15. Holms says

    #16
    I agree that there is a difference, yet any nation having either ‘type’ of action done against them would certainly consider it an act of aggression, a breach of sovereignty, and perhaps even causus belli.

  16. Holms says

    Or in other words, America would assuredly not tolerate any other nation doing to it what America does to other nations. But then, American leaders seem to specialise in geopolitical hypocrisy.

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