The argument that the president can be trusted with extreme unilateral powers is no longer credible, right?

Hellfire missiles and a guided bomb unit under the wing of a Reaper drone.
Hellfire missiles and a guided bomb unit under the wing of a Reaper drone.
Trump is why you need limits on executive power Fourth in a series: Donald Trump’s use and abuse of powers bequeathed him by Barack Obama – particularly the power to unilaterally kill people abroad – vividly demonstrates what a mistake it was for Democrats to continue George W. Bush’s expansion of executive power rather than rein it in. But they still don’t seem to get it. See the other articles in the series here.

The fact that Donald Trump can unilaterally, extra-judicially, and in complete secrecy send drones to kill people abroad who pose no immediate risk to anyone is the single clearest example of the extreme and excessive expansion of executive power in the United States.

It’s not the only one. Other leading examples including the widespread use of bulk surveillance with no oversight and the (until recently) completely unchallenged appropriation of Congress’s war powers. But I focus on drones because they are such a concrete manifestation, they give presidents such an easy and sanitized way to kill, and their rampant and secretive use is the legacy of Democrats every bit as much as Republicans.  

The argument that extraordinary powers like these would never be abused because the president could always be trusted was never particularly persuasive to begin with.

And now, after the 2016 election, it is no longer even vaguely credible.

So you might think that Trump’s rise would have changed the political calculus — and that, outside of Trump dead-enders, there would be a pretty strong consensus that new checks on presidential power are necessary.

You might think that Democrats would recognize that while Trump is in many ways an aberration, he represents precisely the kind of monarchical, tyrannical threat that our system of checks and balances should be able to handle; and that the constant accretion of executive power from one president to the next is dangerous; and that it’s not enough to say the Democrats will handle it responsibly — you have to give some of it up next time you’re in power.

And yet it seems like it’s only the old, familiar voices we hear calling for stronger checks and balances. Top Democrats, national security hawks and neocons alike are largely treating it like a personnel issue that will be solved once Trump is gone.

New and newly energized democracy reform groups are doing marvelous work — but excessive executive power in the area of national security is not on their radar.

Perhaps some would-be critics brushed these concerns aside because, up until Thursday, there was at least one “adult” in the room. But he’s gone. 

What about the architects?

I’ve wondered, specifically, about the former Obama officials who helped craft targeted killing policies that involved no consultation with Congress, no oversight, and nothing like due process as we commonly understand it – and then memorialized their rules in a form that was not in any way binding over future presidents.

I’m not suggesting that they should realistically have been prepared for a Trump presidency. But now that they know such a thing is possible, do they wish they had done anything at all differently? Or have they at least changed their minds going forward?

It appears not.

“I haven’t seen too many of them reckon with their own role in providing these opportunities,” said Brett Max Kaufman, a staff attorney in the ACLU’s Center for Democracy.

National security officials who suddenly got alarmed after the election at the power that President Trump was going to have — and who have taken issue with his decision-making since then — nevertheless are not advocating for a restructuring as much as they are waiting to feel confident about the president again, Kaufman said.

Luke Hartig, a former senior director for counterterrorism in the Obama White House, expressed satisfaction with the fact that Trump didn’t actually throw away every single bit of Obama’s drone policy.

Trump’s new policy lowers the needed threat threshold set by Obama, expands the universe of targets set by Obama, eliminates layers of review created by Obama, and requires no direct White House involvement. But (at least officially) it retains a requirement of “near certainty” that no civilian bystanders will be killed before launching an operation outside a war zone.

Hartig, writing in Just Security, called that “a huge vindication of the Obama approach to overseeing drone operations.”

Practically speaking, however, Trump has made an end-run around the “near certainty” standard outside war zones – by expanding the war zones.

Harold Koh, the noted legal scholar and who was a skeptic about unilateral executive power until he served as Obama’s first State Department legal adviser, recently published a book titled The Trump Administration and International Law, in which he writes at some length about Obama’s attempts to bring what he calls the “Forever War” to an end.

The International law blog Opinio Juris held an online symposium about Koh’s book after it came out — and some progressives expressed profound disappointment about the policies Koh and Obama crafted, and Koh’s excuses for them.

Rita Siemion, legal counsel at Human Rights First, wrote that Koh’s expressed desire to bringing the Forever War to an end was belied by his support of the view that the president can unilaterally declare which geographic regions are war zones — in which looser, wartime targeting rules can be applied. (Trump has done precisely that with Yemen and Somalia.)

Amnesty International’s Daphne Eviatar wrote that Obama ultimately “didn’t narrow the field of conflict at all”:

On the contrary, the conflict has spread to more countries, so that the US under the Trump administration has employed lethal force in at least eight different countries, and there is no end in sight for what Koh himself laments has become a “Forever War.”

In Koh’s response to his critics, he didn’t suggest any new checks and balances, writing only that he would have preferred for Obama’s drone policy guidelines to have been “cast more firmly as executive or presidential orders” rather than memos. And, while grudgingly acknowledging that “many of the international law issues… were not perfectly resolved during the Obama administration,” Koh bristled at criticism. He complained:  

[I]t seems strangely counterproductive and mistimed — amid Trump’s daily radical and pervasive attack on the international legal institutions of our postwar legal order — for rule-of-law commentators to join in Trump’s attack on Obama and Clinton and remain fixated on critiquing the flaws of the Obama Administration.

But fixing Trumpism is about more than simply getting past him and fixing what he broke. It’s also about fixing the flaws in our system that Trump was able to exploit — and restoring the checks and balances that were allowed to get out of whack based on the assumption that future presidents could be trusted to use their enormous unilateral powers responsibly.

Happy Holidays to all of you. Posting will be light during the next two weeks. And please consider making a donation to White House Watch.

Next: A rare regret about hubris.

With Mattis gone, what’s stopping Bolton and Trump from sending drones into Iran?

Trump is why you need limits on executive power Third in a series: Donald Trump’s use and abuse of powers bequeathed him by Barack Obama – particularly the power to unilaterally kill people abroad – vividly demonstrates what a mistake it was for Democrats to continue George W. Bush’s expansion of executive power rather than rein it in. But they still don’t seem to get it. See the other articles in the series here.

Despite Donald Trump’s authoritarian tendencies and impulsive personality, there’s been remarkably little public concern about his possible abuse of his great powers as Commander in Chief.

That’s likely because there has been, at least in theory,  at least one “adult” in the way: Defense Secretary Jim Mattis.

Jim Mattis
Jim Mattis

But with Mattis gone, the vast, unchecked powers that the presidency has accumulated over the years suddenly seem a lot more dangerous.

The timing of the departure – coming right as Trump ordered the withdrawal of troops from Syria, and maybe even Afghanistan – suggests that Mattis left because he felt Trump was being too dovish. But keep in mind that Trump a few months back called Mattis “sort of a Democrat, if you want to know the truth.” So the bigger concern is that Trump will now feel unfettered about intervening elsewhere.

Mattis’s departure has been predicted for months. And back in September, the New York Times published some speculation about what kind of person Trump would choose to replace him.

Helene Cooper quoted “aides” who “said Mr. Trump was pondering whether he wanted someone running the Pentagon who would be more vocally supportive than Mr. Mattis, who is vehemently protective of the American military against perceptions it could be used for political purposes.” (My italics.)

Matttis notably gave in when Trump ordered him to send thousands of active-duty troops to the Mexican border in a crassly political use of the military just before the midterm elections. But there was still a sense that he would only let Trump go so far. 

With Mattis gone, what’s the worst  that could happen? Look no further than Mattis’s arch-enemy John Bolton, the uber-hawk whose growing influence as national security adviser will now be essentially unchecked.

Bolton has long advocated for bombing Iran and pushing for regime change there.

At the United Nations in September, Bolton declared that “The days of impunity for Tehran and its enablers are over. The murderous regime and its supporters will face significant consequences if they do not change their behavior. Let my message today be clear: We are watching, and we will come after you.”

He specifically targeted Qassem Soleimani, the commander of the external arm of the Islamic Revolutionary Guard Corps. “We will use every tool available to pursue Soleimani and others like him,” Bolton said. “Iran’s leadership will no longer enjoy a life of security and luxury while their people suffer and starve.”

I’ve been writing lately about the danger of unchecked power in the hands of any president — and this president in particular. It hasn’t exactly gotten people riled up like I thought it should.

Well, this is when it matters that George W. Bush, and then Barack Obama, vested the presidency with the authority to send drones to kill people of their choosing around the world.

This is when it matters that there are no rules about targeting people for death. (Obama adopted some for himself, but they have no authority over Trump.)

This is when it matters that modern presidents have successfully established the precedent that they can attack sovereign nations from the air on their say-so without notifying Congress or getting its approval.

What, now, is stopping John Bolton, like John Brennan before him, from deciding that someone is a threat and putting him on a kill list? 

Who thinks Trump would stop him?

And what happens if that leads to war?

Tomorrow: The argument that the president can be trusted with extreme unilateral powers is no longer credible, right?

Trump sends in the drones

An airstrike in Afghanistan in February 2018. U.S. Army video.
An airstrike in Afghanistan in February 2018. (U.S. Army video)

Trump is why you need limits on executive power
Second in a series: Donald Trump’s use and abuse of powers bequeathed him by Barack Obama – particularly the power to unilaterally kill people abroad – vividly demonstrates what a mistake it was for Democrats to continue George W. Bush’s expansion of executive power rather than rein it in. But they still don’t seem to get it. See Part 1: The loaded gun

Since taking office, Donald Trump has loosened or eliminated many of the self-imposed constraints that Barack Obama instituted to manage the process of sentencing people to death from the air. 

He eliminated the high threshold for taking lethal action – that the person represent a “continuing, imminent threat to U.S. persons” — and replaced it with, well, we’re not really sure how they pick their targets at this point. 

He scrapped the extensive interagency review process that Obama had created to give administration officials a chance to examine the evidence and raise concerns before putting someone to death.

He effectively relaxed Obama’s rules for preventing civilian casualties in Somalia and Yemen by declaring parts of those countries to be war zones — “areas of active hostilities” – despite the lack of an actual war.

What little movement there was under Obama to increase transparency has been reversed. There is, in effect, no accountability.  Most notably, where Obama eventually cooled on covert CIA drone operations in favor of somewhat more transparent Pentagon strikes, Trump has put the CIA back in business – going so far as to give the CIA its own drone base in Niger to supplement its facilities in Afghanistan and Saudi Arabia.

“We weren’t fighting to win, we were fighting to be politically correct,” Trump said on talk radio in October 2017. “The White House used to get calls, ‘Can we do this? Can we do that?’ to places and in places that they’ve never even heard of,” he said. “It was ridiculous, so I totally changed rules of engagement.”

In Somalia and Yemen, that has meant huge increases in drone strikes. 

  • The Bureau of Investigative Journalism, a British non-profit that meticulously tracks the drone wars, calculates that U.S. forces have launched 78 air strikes in Somalia since Trump became president – 43 of them this past year – compared to 33 during the eight years of the Obama presidency. Africa Command confirmed six air strikes just this month in what appears to be a failing campaign against al-Shabaab, an al Qaeda affiliate.

In countries that are more recognizably war zones, airstrikes also surged, along with civilian casualties.

  • In Afghanistan, the Bureau reported at the end of 2017 that “the number of weapons dropped is now approaching levels last seen during the 2009-2012 surge.” The U.S. military refused to release information on air strikes during most of 2018, but the UN reported that the number of U.S. air strikes leading to civilian casualties more than doubled in the first nine months of 2018, with the U.S. responsible for about 160 civilian deaths. A new Bureau analysis this month found that the U.S. had bombed over 60 buildings during the course of over 392 air strikes in Afghanistan in October alone.
  • In Syria, despite Trump’s announcement that ISIS has been defeated, U.S.-led air strikes have continued: there were 208 air strikes last week alone. The worst bombing took place in Raqqa last year. Rescue workers still digging through the wreckage have found more than 2,600 bodies, most of which they say were civilians killed in air strikes by the U.S.-led coalition between June and October 2017.

American University professor Stephen Tankel’s article about “Donald Trump’s Shadow War” in Politico in May 2018 bore a telling subhead: “The administration has quietly expanded how the U.S. uses military force around the world. The consequences are grave. Why is no one paying attention?”

Tankel notes, for instance, that “civilian casualties in areas outside of active war zones do appear to have risen under Trump’s watch, although it is not clear whether the proportion of bystanders killed per strike is higher or if this is mainly a function of conducting more operations. It’s hard to tell because the White House has ignored an Obama-era executive order, which is still in place, requiring it to issue an annual report on the number of civilians and enemy fighters killed by counterterrorism strikes.”

A June 2018 report from the Stimson Center summarized the state of play this way: “U.S. drone policy under the Trump administration has thus far been defined by uncertainty coupled with less oversight and less transparency.”

“Obama’s rules, as we’ve said from the start, were really only as good as the president’s commitment to stand by them,” said Brett Max Kaufman, a staff attorney in the ACLU’s Center for Democracy. “We said that as soon as they came out.”

No more fussing over civilian casualties

Trump telegraphed his lack of Obama-like scruples on his very first full day in office. After delivering a bizarre, campaign-style, stream-of-consciousness airing of grievances (the first of many as president) at the CIA — with the CIA memorial wall as a backdrop — he got a special briefing on drone usage.

As the Washington Post reported more than a year later:

[W]hen the agency’s head of drone operations explained that the CIA had developed special munitions to limit civilian casualties, the president seemed unimpressed. Watching a previously recorded strike in which the agency held off on firing until the target had wandered away from a house with his family inside, Trump asked, “Why did you wait?” one participant in the meeting recalled.

A July 2018 report from the Center for a New American Security describes how Trump aides received Obama’s drone policies, but had “little of the prior administration’s familiarity and comfort with any of them.”

Obama’s “intensive oversight had thoughtful rationales,” Loren DeJonge Schulman wrote for CNAS; some Obama officials “described their micromanagement as an alternative to external transparency and oversight.”

But members of Trump’s team had no interest in spending the time that micromanagement required, even if they were capable of it. They instead farmed out the decisions once made in the Situation Room to lower level commanders.

Chas Freeman, a senior fellow at Brown University’s Watson Institute for International and Public Affairs, criticized Trump for having “delegated a whole series of decisions to the military that traditionally have been decided by the president.” That’s a blow to the U.S. tradition of civilian control of the military, he said. And under Obama, “at least there was a chain of accountability. I don’t know what the chain is now, nobody does.”

Tomorrow: The argument that the president can be trusted with extreme unilateral powers is no longer credible, right?.

Donald Trump is why you need limits on executive power

First in a series: Donald Trump’s use and abuse of powers bequeathed him by Barack Obama – particularly the power to unilaterally kill people abroad – vividly demonstrates what a mistake it was for Democrats to continue George W. Bush’s expansion of executive power rather than rein it in. But they still don’t seem to get it.

Part 1: The loaded gun

Early in his presidency, Barack Obama met with senior advisors to discuss some of the extraordinary, extrajudicial powers that George W. Bush had claimed for himself after 9/11. Obama would need to either embrace them, or reject them.

The specific matter at hand that day was indefinite detention of terror suspects without trial. Obama faced similar conundrums in regards to other Bush policies, including the use of airstrikes – particularly from drones – to unilaterally target specific people abroad for death.

Obama expressed his worries out loud.

“To give that kind of power to the president is like giving him a loaded weapon,” he said, according to Daniel Klaidman’s 2012 book, “Kill or Capture: The War onTerror and the Soul of the Obama Presidency

“You never know who is going to be president four years from now,” Obama continued.

“I have to think about how Mitt Romney would use that power.”

Little did he know

Obama could not reasonably have anticipated that eight years later he would be handing absolute power to mark people for death from the air to Donald Trump, an unstable reality TV star who had promised on the campaign trail to “bomb the shit” out of terrorists and “take out their families.”

But it couldn’t be clearer now that Obama’s conviction that he was up to handling these awesome responsibilities without external review of any kind — and that his successors would be as well – was unjustified.

Let’s look at the drone program in particular. Rather than rein in the nascent program he inherited from Bush, Obama decided to dramatically expand it. Where Bush had used drones on an ad hoc basis, Obama standardized their use with a secret “kill chain” process, with the president himself as the top link.

Obama liked that drones — along with other kinds of air strikes –  enabled him to take military action without the high political and financial costs of sending in troops.

He was confident in his personal ability to micromanage away any significant risk of civilian casualties or moral ambiguity.

He developed a wonky targeting guideline in secret, without involving Congress or the judicial branch, assuming that they would be treated as gospel by his successor, Hillary Clinton.

But the Obama rule book, in the end, had no authority over Trump, who essentially threw it away.

And it turns out that amid the daily deluge of spectacles from the Trump presidency — the metastatic damage to key institutions and the rule of law, the almost comlcal dysfunction, the terrifying lack of competence, the pathological lying, and the relentless tick-tock of scandal — something very serious has been happening that is getting almost no attention.

Donald Trump is, just like he promised, bombing the shit out of alleged terror suspects, and killing their families.

Tomorrow: Trump sends in the drones.

Unnatural Russian confidence in Trump victory quickly turned to fear of impeachment

Behind Trump, Pence.
Behind Trump, Pence.

The Russian government — which laid plans for a Trump presidency when almost no one else seriously considered the possibility – started worrying about impeachment the minute he was elected.

That’s one of the findings in a report produced for the Senate Intelligence Committee on the Russian influence campaign on social media in the 2016 election.

The report tracked the Russian-government Internet Research Agency’s social media campaign and found a sudden shift after Trump’s surprise victory:

“There were extremely immediate posts that attempted to pre-empt calls for impeachment,” the report found. In the one example provided, this was achieved “by framing Vice President Mike Pence as an even worse option.”

According to the report, a post by the fake Facebook group LGBT United on November 10th read (sic): “In case anyone forgot, Mike Pence in the White House would mean disaster for queer people!! I heavily disagree with his policies regarding church and state and his lgbtq policy. I see alot of leftist calling for impeachment or assassination on trump but truely Trump is worlds better than Pence when talking about equal rights for all…”

The concern that Pence would be worse than Trump on LGBTQ issues is, in fact, quite legitimate — but not coming from pro-Trump Russian hacker trolls.

The report, released on Monday, was produced by New Knowledge, a cybersecurity company based in Austin, Tex., with researchers from the Tow Center for Digital Journalism at Columbia University and Canfield Research LLC.

Criminal complaints from special counsel Robert Mueller and the U.S. Attorney’s Office for the Eastern District of Virginia have previously documented that the Russian social media campaign continued well after the election.

The Washington Post on Tuesday described the report’s conclusions that Russian operatives also turned their sites on special counsel Robert Mueller, using fake accounts on Facebook, and Twitter calling him corrupt proclaiming that allegations of Russian interference were conspiracy theories.

See the White House Watch Impeachment Watch archive.

Not ready for impeachment proceedings? Then set up a select committee.

John Dean before the Senate Watergate Committee, May 1973.
John Dean before the Senate Watergate Committee, May 1973.

House Democrats who aren’t politically ready to begin impeachment proceedings against Donald Trump quite yet — but worry that none of the various oversight committees have the means or the clout to build the strongest public case – have a third alternative.

They could follow the Watergate model, and establish a select committee.

The Select Committee on Presidential Campaign Activities, better known as the Senate Watergate Committee, was established in 1973, by S. Res. 60 (here’s the full text, in case anyone wants to use it as a model.)

As the Senate website explains:

The resolution empowered four Democrats and three Republicans to subpoena witnesses and materials, provided them with a $500,000 budget, and required them to submit a final report by February 28, 1974. The resolution granted the committee the power to investigate the break-in and any subsequent cover-up of criminal activity, as well as “all other illegal, improper, or unethical conduct occurring during the Presidential campaign of 1972, including political espionage and campaign finance practices.”

It was a different, less poisonous time, of course. The vote in the Senate was unanimous (with 23 abstentions), something quite inconceivable today when the parties can’t agree on basic facts and the stink of the House Select Committee of Benghazi still persists.

But the precedent is a mighty one. The Watergate Committee, headed by North Carolina Democratic Sen. Sam Ervin, famously held two weeks of riveting, televised hearings in May 1973, whose educational value to the public can not be overstated. The fact-finding continued, dovetailing with criminal and special counsel investigations, and it was fully a year later that the House Judiciary Committee began its impeachment proceedings.

Just one month after the 2016 election, prompted by the first news reports on the CIA’s analysis of Russian interference with the 2016 election, four powerful senators called for a select committee. Republicans John McCain and Lindsey Graham, and Democrats Chuck Schumer and Jack Reed issued a joint statement that the appropriate response to the new information was beyond any one existing committee’s ability. “Democrats and Republicans must work together, and across the jurisdictional lines of the Congress, to examine these recent incidents thoroughly and devise comprehensive solutions to deter and defend against further cyberattacks,” they wrote.

Senate Majority Leader Mitch McConnell quickly rejected the suggestion, saying the Senate Intelligence Committee could handle it. But McCain continued to argue for a select committee as long as he lived. Former vice president Joe Biden cheered him on in a tweet.

Talking to MSNBC in May 2017, McCain said, “we have to, in my view, have this select committee. There are different committees in the House and the Senate, different jurisdictions, … but I think it has reached the size and scope … that it requires a select committee.”

All that said, shifting the investigation of any — not to mention all – impeachable offenses to a select committee would be a major change of plans for the Democrats, and in particular for the committee leaders who have already announced their oversight plans.

The New York Times Magazine on Sunday describes a key meeting in September between Majority-leader-to-be Nancy Pelosi and three investigative committee chairmen-in-waiting: Maryland’s Elijah Cummings, of the Oversight and Government Reform Committee, New York’s Jerrold Nadler, of the Judiciary Committee, and California’s Adam Schiff, of the Intelligence Committee. “At that September meeting and at multiple gatherings of members and their staffs over the subsequent weeks and months, an initial strategy — and a division of labor — began to take shape,” Jason Zengerle reported.

But those committee chairman’s to-do lists also include a number of terrifically important investigations with major policy implications that are not directly related to a possible impeachment inquiry.

And could any of them alone gather an audience and meet the need for public education like the Watergate Committee did?

Politico’s article today on the likelihood and timing of impeachment proceedings says Pelosi’s goal is: “Give Mueller space and time to finish his work before considering impeachment proceedings while satisfying the Democrats’ burning desire to aggressively investigate Trump in the meantime.”

A select committee could do that.

It could also satisfy the needs of those who are more eager.

“It becomes harder and harder to make the case that this president hasn’t committed impeachable offenses. However, that information still has to get out to the American people,” Rep. Pramila Jayapal, one of 58 Democrats who voted to begin impeachment proceedings last year, told Politico. “You really stand to lose something if you try to move impeachment before you have everything on the table,” she said. “We don’t have everything on the table yet.”

In related impeachment news

Liberal and progressive lawyers continue to debate over methods and timing.

Bob Bauer and Quinta Jurecic, who last week argued that Trump’s evident criminal violations of campaign finance law constitute an impeachable offense, this week respond to pushback from those who say it’s not quite enough. They say lowering the bar would be a bad precedent:

Whether Congress treats the prosecution and investigation in question as material fit for examination in an impeachment inquiry will determine how, in the future, the norms governing initiation of the impeachment process are construed.

Robert Kuttner, writing in the American Prospect, argues for a slow but determined approach. “[W]e need to let the process unfold with all deliberate speed. Public opinion is not there yet, but it will come. Conversely, given the grossly impeachable offenses of President Trump, it would be a dereliction of constitutional duty not to eventually impeach him.”

Democratic activist James Carroll writes in USA Today that there’s no need to wait for Mueller. “We don’t need proof of Russia collusion to hold Trump accountable for refusing to call Russia to account for its cyberattacks during the 2016 election and since then and his role in the illegal payment of hush money to two women in order to influence the 2016 election,” Carroll writes. He calls for “a thorough House impeachment inquiry (eventually including Mueller’s findings), which will play nonstop for months on national television.”

Michael Conway, a counsel for the House Judiciary Committee during the Nixon impeachment proceedings, writes that Trump’s hush money payments “sabotaged an informed electorate” and are “part of a background mosaic of lawlessness by Trump” – but that more needs to emerge to make the case for “high crimes and misdemeanors.”

“Russian collusion, the firing of FBI Director James Comey, the false testimony of Trump associates (proven and possibly yet to be proven) to FBI agents and congressional committees, Trump’s dangling of pardons and his public lies will be at the heart of any impeachment inquiry. The criminal campaign finance violations will simply corroborate the corrupt intent behind it all,” he writes.

Meanwhile, two New York Times graphics editors neatly make an overwhelming case that Trump is guilty of multiple violations of the Constitution through his acceptance of payments from foreign and domestic governments. Some word editor, presumably, added an entirely unnecessary question mark to the headline.

See the White House Watch Impeachment Watch archive.