WASHINGTON ― President Barack Obama entered office in 2009 with the promise of reining in his predecessor’s freewheeling use of military force abroad. But rather than rolling back the authorities former President George W. Bush exercised, Obama has expanded some of his most controversial national security programs ― such as the drone program and conducting warfare without specific congressional authorization.
While there were cases where Obama reversed Bush-era policies, critics say he often did so with minimal transparency and accountability. Obama has set a precedent for the next commander-in-chief to claim even greater unilateral authority on the use of force. In two months, he will hand off an empowered executive branch to Donald Trump, a man he has described as lacking the temperament, experience and values to lead the country.
Here are some of the ways he has expanded the presidential prerogative to wage war:
A key part of the Bush administration’s “war on terror” involved using unmanned aerial vehicles equipped with Hellfire missiles to quietly kill suspected enemies without formally going to war with the country they inhabited. Obama inherited that ability and greatly expanded its use during his first term.
When it appeared that Obama might not win re-election in 2012, the White House scrambled to lay out rules governing the use of drones for targeted killings abroad, the New York Times reported. Administration officials feared Obama’s possible Republican successor might use the sweeping authority to kill suspected terrorists based on classified determinations by the president about who is a legitimate target. That effort lost some of its urgency when Obama was re-elected, but the White House did eventually finalize its classified guidance on the use of lethal drone strikes in May 2013. The administration released a redacted version of the guidance earlier this year, after a Freedom of Information Act lawsuit by the American Civil Liberties Union.
The rules require only “near certainty” that a terrorist target is present at the site of the strike, that the target can’t be captured by other means and that innocents won’t be injured or killed. “Near certainty” is, of course, entirely subjective ― and without meaningful congressional or judicial oversight of the process, it’s up to the executive branch to make that decision behind closed doors.
The Obama administration hoped that the 2013 guidance would set a standard going forward, but because it is policy not law, Trump is not obligated to adhere to it. And even if Trump opted to follow the guidance, it is worded vaguely enough that it wouldn’t in any practical way be able to restrain his ability to kill suspected terrorists abroad. Furthermore, the Obama administration has indicated that it is not planning to narrow the rules around targeted killings before leaving office, the Guardian reported Tuesday.
That guidance “is riddled with ambiguities and loopholes,” said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, who wrote a book on the Obama administration’s legal justification for the targeted killing program. “Trump is inheriting sweeping power to use lethal force against people he perceives to be threats to the U.S.”
Obama also set a low standard for disclosing information about civilians killed in U.S. airstrikes. His administration declined to publicly release the number of innocents killed by strikes in countries where the U.S. is not officially at war until July 2016. The White House says that between 64 and 116 civilians have been killed since 2009, in airstrikes in Pakistan, Yemen, Somalia and Libya. The Bureau of Investigative Journalism, a London-based nonprofit news organization that closely monitors U.S. airstrikes, says the number of civilian casualties in those countries is most likely somewhere in the range of 380 to 801, based on reports from journalists and NGO investigators, as well as leaked government documents and court papers.
Some of the blame falls to Congress and the courts, says Jaffer, for failing to exercise meaningful oversight on the drone program. “It’s not the executive branch’s job to police itself,” he said.
OUTDATED WAR AUTHORIZATION
Obama has overseen bombings in Afghanistan, Pakistan, Yemen, Somalia, Libya, Iraq and Syria. In each country, the administration relied, in part, on legislation Congress passed in 2001 to authorize the use of force against those who plotted the Sept. 11 attacks. The wording of that authorization was vague ― it didn’t limit the war to a specific country or timeframe ― and the Obama administration’s lawyers have presented a complicated legal justification to defend its ongoing use in countries that Congress never even considered in 2001. That means a future president could continue to rely on the 15-year-old law to wage new wars in additional countries without asking Congress for approval.
There is near unanimous agreement that the 2001 AUMF is outdated. It’s a “stretch” to use it as legal justification to fight the current war against the so-called Islamic State, multiple national security law experts say. “The ways it was invoked have been stretched to a breaking point,” said Hina Shamsi, head of the ACLU’s national security project.
With regard to using military force abroad, Obama has been more unilateralist than Bush. Matthew Waxman, former Bush administration official
Obama asked Congress to pass a new AUMF in 2015, one tailored to the war against ISIS ― after he had already started bombing the group in Iraq and Syria. Lawmakers briefly debated a new war authorization, but they were divided on how restrictive or expansive the new law should be, and ultimately dropped the issue. There wasn’t much pressure on lawmakers to take a politically risky vote, since the Obama administration had signaled it would fight ISIS with or without Congressional action.
“With regard to using military force abroad, Obama has been more unilateralist than Bush,” said Matthew Waxman, a former Bush administration official.
Congress, of course, bears much of the blame ― but regardless of who is at fault, the over-reliance on the 2001 AUMF sets a precedent for the Trump administration to make decisions about where and when to go to war with little input from lawmakers.
Obama signed an executive order outlawing torture immediately after entering the White House, and then worked with Congress to pass anti-torture legislation. But the president also said he wanted to “look forward as opposed to looking backwards,” and none of the Bush-era officials who were responsible for the torture program were punished.
Then-Attorney General Eric Holder appointed a prosecutor to investigate the CIA program, but the investigator recommended against filing charges. The findings of his investigation were kept secret.
The Senate Intelligence Committee embarked on its own exhaustive review of the torture program, and the White House sometimes sided with the CIA in its efforts to keep that review secret as well. In several instances, the Obama administration pressed Senate investigators to redact some episodes that reflected poorly on the government, the Guardian reported in September.
Torture works. President-elect Donald Trump
The Senate released a redacted summary of its findings in 2014, which revealed that the CIA’s “interrogation” tactics were far more brutal than they had acknowledged and that the spy agency had misled the White House about the efficacy of using torture to get information. CIA detainees were beaten, anally raped, waterboarded, threatened with a power drill, deprived of sleep and confined in coffin-sized boxes. In one case, an interrogator threatened to sexually assault a detainee’s mother.
The ACLU pushed the Obama administration to open a criminal investigation into the CIA program, based on the Senate committee’s findings, but the administration ignored the request.
A year later, Trump began making promises on the campaign trail to bring back waterboarding “and a hell of a lot worse.”
“Torture works,” he said at a campaign rally in February.
Some are skeptical that any president could compel subordinates to reinstate tactics like waterboarding, “The military and intelligence agencies will resist it,” Waxman said. “I’d expect any administration lawyers to be very cautious about future criminal liability for reinstating it.”
At the same time, Shamsi said, if there had been accountability for Bush-era use of torture, it would be far less likely that a presidential candidate would promise to bring it back.
If Trump does try to reinstate torture, he’ll likely face hefty opposition from inside government and from civil liberties watchdogs.
“The fact remains, that torture has always been unlawful and it is still unlawful,” Shamsi said. “No amount of attempted legal shenanigans will change that.”