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From torture to drone strikes: the disturbing legal legacy Obama is leaving for Trump

President Barack Obama delivers a farewell speech to the nation on January 10, 2017, in Chicago, Illinois.
Scott Olson/Getty Images

In his farewell speech Tuesday night, President Obama warned that Americans “must guard against a weakening of the values that make us who we are.”

“That’s why, for the past eight years, I’ve worked to put the fight against terrorism on a firmer legal footing,” Obama said. “That’s why we’ve ended torture, worked to close Gitmo, and reformed our laws governing surveillance to protect privacy and civil liberties.”

But while that makes for a nice sound bite, it’s not entirely accurate.

Using drones to kill American citizens without trial, collecting the email and phone records of millions of Americans on a daily basis, and grabbing militants off of the streets of foreign cities and imprisoning them indefinitely — these are all powers that Obama has bequeathed to his successor.

Presidents George W. Bush and Obama both dramatically expanded the power and authority of the executive branch, particularly in the realm of national security. In addition to having nearly unlimited power to start wars without Congress’s approval, presidents now have the power to order drone strikes on US citizens abroad without charges or trial, gather millions of Americans’ emails and phone records with minimal judicial oversight, and radically redefine what does and does not constitute “torture” without fear of ever being prosecuted for war crimes.

That any president has this kind of power is concerning on its own, but it’s even more alarming now that Donald Trump, who has praised repressive dictators like Vladimir Putin and shown little respect for things like international law and the Geneva Conventions, is going to be in the White House.

Civil libertarians, human rights activists, and even some members of the military and intelligence services have expressed worry over how the self-described “law and order candidate” will wield this power once he takes office.

Here is a closer look at the three most worrisome areas of the new president’s power — torture, drone strikes, and mass surveillance — and what President-elect Trump can, and cannot, legally do once he takes office. It’s not a pretty picture.

Torture

Trump said during the campaign that he would not only “bring back waterboarding,” which he considers a “minor form” of torture, but that he’d also bring back “a hell of a lot worse than waterboarding."

"We have an enemy that doesn't play by the laws. You could say laws, and they're laughing. They're laughing at us right now,” Trump said, referring to ISIS, during an appearance on CBS’s Face the Nation. “I would like to strengthen the laws so that we can better compete.”

Could he do that? The answer is complicated, but the short answer, unfortunately, is yes.

When President Obama took office in 2009, he put in place an executive order designed to prevent the abuses that took place during the Bush administration, which used waterboarding, extended sleep deprivation, standing in painful “stress positions” on broken feet or legs, and the forced “rectal feeding” of detainees carrying out hunger strikes over their conditions.

The executive order barred any “officer, employee, or other agent” of the US government (whether military, CIA, FBI, or any other agency) from using any interrogation method that is not among those methods listed in US Army Field Manual, which contains detailed rules and guidelines for a wide range of procedures important to soldiers serving in the field. Since waterboarding and other “enhanced interrogation techniques” favored by the Bush administration are not part of the Army Field Manual, they could no longer be used.

The problem is that those restrictions were part of an executive order, not an actual law passed by Congress, which means they could easily be overturned by the next president with an executive order of his own.

To prevent that from happening, the Obama administration worked with the Republican-controlled Congress in 2015 on legislation to make the rule about following the Army Field Manual part of actual US law. The legislation had strong bipartisan support, passing the Senate in an overwhelming vote of 91-3. It was meant to ensure that future presidents couldn’t change the rules without going through Congress — but it contained a major loophole.

Robert Chesney, professor and associate dean at the University of Texas School of Law, explains on the Lawfare blog that there’s nothing explicitly stopping the secretary of defense, who is appointed by the president, from changing what’s in the Army Field Manual. Indeed, the law actually requires the Defense Department to "complete a thorough review" of the field manual every three years.

This means that the new secretary of defense could potentially push the Army to alter the Field Manual to include things like waterboarding in its list of approved interrogation techniques, thereby making all the safeguards President Obama put in place essentially meaningless.

Now, to be clear, this doesn’t mean the US military or the CIA would actually be willing to use waterboarding, even if ordered to do so. Former top military brass and national security officials rejected Trump’s comments during the campaign about potentially ordering the military to torture people and kill the families of suspected terrorists. (Trump later backed away from the latter idea, which would be a war crime.)

Current senior officers have been careful not to comment about Trump specifically to avoid wading into US domestic politics. But they've made clear that they're just as opposed to waterboarding or targeting the families of terrorists.

Chair of the Joint Chiefs of Staff Gen. Joseph Dunford, while explicitly refraining from discussing Trump directly, told the Senate Armed Services Committee in March that “Those kinds of activities that you described are inconsistent with the values of our nation.” Former CIA director Michael Hayden, who also led the National Security Agency from 1999 to 2005, told HBO’s Bill Maher in February that if Trump were to order such actions once in office, “the American armed forces would refuse to act.”

Current CIA director John Brennan, speaking at an event at the Brookings Institution think tank back in April, stated, “If a president were to order the agency to carry out waterboarding or something else, it’ll be up to the director of CIA and others within CIA to decide whether or not that direction and order is something that they can carry out in good conscience,” he said.

“As long as I’m director of CIA, irrespective of what the president says, I’m not going to be the director of CIA who gives that order. They’ll have to find another director,” he added.

Trump also said on the campaign trail that he would keep open the US detention facility at Guantanamo Bay, Cuba — one of the places where detainees tortured by the CIA were held — and “load it up with bad guys.” That's a stark reversal from the positions of both George W. Bush, who several times toward the end of his tenure said he’d like to see the prison closed, and Obama, who on his second day in office issued an executive order directing that the controversial prison be shut down within a year.

Obama's efforts have been stymied by fierce Congressional opposition, and the prison contained 60 detainees as of October 21, 2016, according to Human Rights First. The advocacy group says 56 of the detainees have been imprisoned there for more than 10 years. Their fate, as well as that of the prison itself, will soon be in the hands of President-elect Trump.

Drone strikes/targeted killing

Although the US “drone program” — that is, the covert CIA program involving the targeted killing of “suspected terrorists” by unmanned aerial vehicles often far outside of immediate war zones — began under President George W. Bush, it was dramatically expanded under President Obama.

According to the Obama administration’s official numbers, the US has killed 2,436 people in 473 counterterrorism strikes in Pakistan, Yemen, Somalia, and Libya between January 2009 and the end of 2015. Of those, between 64 and 116 were “non-combatants” (that is, civilians).

The independent, nonprofit Bureau of Investigative Journalism puts the total number of people killed at roughly the same number, 2,753, but its estimate of how many of them were civilians six times higher than the Obama administration’s estimate.

Even more chilling from a constitutional perspective is that the Obama administration has — with little to no complaint from the American people or the other two branches of government — deliberately targeted and killed US citizens in drone strikes, without those individuals ever having been given their constitutional right to due process of law.

The Obama administration justifies this by arguing that “when an American has made the decision to affiliate himself with al-Qaeda and target fellow Americans, that there is a legal justification for us to try and stop them from carrying out plots.”

Though Obama acknowledges that US citizens are subject to due process under the Constitution, his attorney general, Eric Holder, has argued that “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” Apparently, the administration believes that its own internal processes for determining if a US citizen can be killed in a drone strike are sufficient enough to count as giving someone “due process.”

All of that is what President-elect Trump will inherit when he takes office.

But what, exactly, are people so worried that Trump will do with this power that Obama hasn’t already done?

The concern seems to stem from the perception — much of which seems to come from the Obama administration’s own efforts to push this narrative — of President Obama as a deeply moral man who engages in serious, conscientious deliberations on each individual case before deciding to target someone, and especially a US citizen, in a drone strike.

Indeed, the Obama administration, after years of refusing to disclose any information about the internal deliberation process involved in targeted killings, finally in August decided to release a (heavily redacted) memo detailing that process, in part to further the perception that the administration wasn’t just killing Americans willy-nilly.

The worry, then, seems to be that Trump lacks Obama’s strong moral compass and penchant for cautious deliberation, and thus will be much more frivolous about who we do and don’t target with drone strikes. And since the Obama administration’s internal guidelines for determining who can be killed in a drone strike are just that — the administration’s own internal guidelines — and not actual law, Trump could absolutely throw them out and do basically whatever he wants.

But the real question is this: Will anyone really care if Trump expands the drone war even further, and kills other US civilians along the way?

Despite its memos and statements about its super-careful deliberative process, the Obama administration still regularly kills people without even being completely sure who it is they’re actually killing.

Yet no one really cares. There has been no real outcry from Congress, no moves by the judicial branch to curb the president’s power or declare his actions unconstitutional, and no massive, nationwide demonstrations by concerned Americans. Will anyone really care if Trump were to kill 6,000 people in drone strikes instead of 2,000?

The families of the people killed will certainly care, the governments of the countries where we carry out strikes may occasionally protest, and international human rights organizations will probably make a fuss — but all of those things already happen now.

Yet it hasn’t made a single bit of difference when it comes to stopping or even curbing the targeting killing program. Americans — even those Americans whose job is to make sure the executive branch doesn’t exceed its powers or violate the Constitution — just don’t seem to mind if the president kills people, even US citizens, as long as they’re told the people being killed are terrorists.

“Americans are very pragmatic as to how a President exercises his War Powers,” writes Charles Dunlap, executive director of Duke University’s Center on Law, Ethics and National Security. “[T]hey are less concerned about the technical legal basis as they are about success against authentic threats. Moreover, Americans are largely unmoved by foreign disapproval — even from allies — where they perceive the Nation’s security to be threatened.”

NSA surveillance

During his campaign, Trump “jokingly” encouraged Russia to hack Hillary Clinton and publish her deleted emails; said he’d consider allowing the surveillance of “certain mosques” in the US, as New York City did after the 9/11 attacks; and stated he would be open to restoring the NSA’s program of collecting Americans’ phone records in bulk from telephone companies.

Denying any involvement with the email hack of the Democratic National Committee, Trump lamented to a crowd of supporters, “I wish I had that power. Man, that would be power.” Now he’s going to have that power — and far, far more. When Trump takes office in January, he will have access to the massive, awesome spying and data collection capabilities of the NSA.

That terrifies many civil libertarians who worry that he will expand controversial NSA surveillance programs in the name of law and order.

But it’s not just a few privacy-obsessed civil libertarian types who are afraid of what President Trump could do. NSA insiders are worried, too. Former NSA lawyer Susan Hennessey told Wired that the NSA’s regulations don’t entirely protect it from a president who wants to abuse its capabilities. “No one should kid themselves about the idea that in the wrong hands, it couldn’t do quite a bit that’s very scary,” she said.

So what, specifically, could Trump do?

First, Trump could rescind various executive actions and directives issued by President Obama aimed at reforming the NSA in the wake of Edward Snowden’s revelations about the agency’s mass surveillance programs. Take, for instance, Presidential Policy Directive 28, which Obama issued in 2014.

PPD 28 laid out guidelines for what the government could and couldn’t use the NSA’s powerful spying capabilities for. It said the government could use intelligence gathered by the NSA overseas for legitimate “national security” purposes, but it couldn’t use it to give US companies a competitive advantage over their foreign competitors, for example, or to suppress political dissent abroad.

But Trump could rescind that directive easily, just by issuing his own executive order, and he would essentially be able to use the intelligence gathered by the NSA overseas for whatever he and his administration wanted.

Trump also said back in December that he would be “fine” with restoring provisions of the USA Patriot Act to allow the NSA to once again collect data on millions of Americans’ phone calls. Under the Patriot Act, which was enacted in the wake of the 9/11 attacks, the NSA was allowed to collect information from Americans’ phone records such as who called whom, the time the call was placed, and how long the conversation lasted (so-called “metadata”).

This practice was banned with the passage of the USA Freedom Act in 2015. But Trump says he’d be okay with bringing that program back. “As far as I'm concerned, that would be fine,” Trump said. “When you have the world looking at us and would like to destroy us as quickly as possible, I err on the side of security.”

Again, President Trump couldn’t just change the law on his own — he’d need Congress to repeal the USA Freedom Act. But unlike with the torture question, getting a GOP-held Congress to do that probably wouldn’t be too difficult.

A September 2016 Pew survey found that 58 percent of Republicans believe terrorists today are better able to launch a major strike on America than they were on 9/11, and 68 percent of Republicans say they are more concerned that government policies have done too little to protect the country against terrorism rather than that those policies have infringed on civil liberties.

Thus, a GOP-dominated Congress would likely feel comfortable passing a law to allow more invasive NSA surveillance in the name of preventing terrorism, knowing Republican constituents would overwhelmingly support it.

The NSA’s surveillance of Americans is theoretically constrained by the Foreign Intelligence Surveillance Court and congressional oversight. But in practice, the FISC has often acted more as a rubber stamp for NSA surveillance requests than a robust check on overreach or abuse.

Jennifer Granick, director of civil liberties at Stanford Law’s Center for Internet and Society, writes on Just Security that “History tells us that up against a determined adversary from within the most powerful office in the world, America’s surveillance safeguards are anemic, barely bumps in the road.”

And if his various statements on the campaign trail are an accurate indication of how Trump plans to govern, he is almost certainly going to be “a determined adversary.”

In an interview with Yahoo News in November 2015, Trump was asked whether his push for increased surveillance of American Muslims could include warrantless searches: “We’re going to have to do things that we never did before,” Trump responded. “And some people are going to be upset about it, but I think that now everybody is feeling that security is going to rule.”