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.

2 thoughts on “The argument that the president can be trusted with extreme unilateral powers is no longer credible, right?”

  1. Harold Koh was a huge disappointment, whose betrayal of principle was never better illustrated than during the Honduras coup. With many nations in entire world opposing it, including almost every nation in the OAS, he was the unapologetic apologist.

    As for formation of the imperial presidency, it is the consequence of congressional abandonment of their duties, especially with respect to the War Powers Act. A specific authorization should be voted on for action in any country. True, it’s cumbersome when dealing with an enemy like the Salafists (Al Qaida, ISIS, etc), but requiring hearings and a vote ensures that the country is kept informed of which countries we’re potentially offending. The problem is not so much presidents asserting improper powers, but Congress failing to assert its own.

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