Trump is why you need limits on executive power Fifth 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.
In November 2017, the New York Times Magazine ran an extraordinary piece of reportage by Azmat Khan and Anand Gopal, called “The Uncounted.” Khan and Gopal found that casualties from air strikes had been underreported by the U.S. government, possibly by a factor of 31.
The story prompted a solemn and pained response from two Obama officials who had been involved in the program: Robert Malley and Stephen Pomper. Unlike other colleagues, they acknowledged that profound, structural change is necessary:
The Times story is one of faulty intelligence driving wrong-headed assumptions that decimate innocent lives and embitter survivors. It is a story about how a legal and bureaucratic fog can make it almost impossible for tragic mistakes to come to light, too often leaving instead a false sense of comfort that such mistakes never happened at all. And it is a story about a policy that warrants honest discussion, and change. We both worked with that policy up close. In the Obama White House, one of us was responsible for human rights, the other for coordinating the counter-isis campaign. In this respect, we were part of an administration that fell short.
Malley and Pomper identified serious structural problems with the U.S. air strikes:
Broad criteria for who or what could be targeted were superimposed upon imperfect systems for identifying those targets, which were exacerbated by the opacity of after-action verification and reparation procedures. All of this was compounded by a natural tendency to give U.S. military operators the benefit of the doubt.
There were safeguards put in place to avoid civilian casualties. But “both of us believe that these steps did not do enough,” Malley and Pomper wrote.
What they recommend is tougher standards to “ensure we err more often on the side of caution” and “acknowledging error” and radical transparency about policy and post-strike assessments.
But even they didn’t call for effective restraints on this power through congressional legislation or judicial oversight. The closest they came was this:
[I]t’s at least worth pondering whether someone from outside the chain of command — possibly from outside the executive branch altogether — should be able to check the Pentagon’s work, bringing the kind of perspective that only comes with distance.
The “honest discussion” they called for never happened. Other Obama officials remained silent.
In fact, the only regret I’ve heard other former officials express about Obama’s drone policy is about transparency.
For instance, Ryan Goodman, who served as special counsel to the general counsel of the Department of Defense, has written that transparency as regards the number of civilian casualties was lacking, and should be improved. But he doesn’t explain why it wasn’t under Obama.
Harold Koh, the noted legal scholar who served as Obama’s first State Department legal adviser, briefly discusses drone policy in his new book. He acknowledges the obvious reason he and his colleagues didn’t feel obliged to strengthen oversight on drones: “The Obama administration anticipated that its work would be carried on by a Hillary Clinton administration.”
He further acknowledges that the rules now appear to be “up for grabs” instead:
It remains unclear how scrupulously these legal and policy rules—particularly the “near-certainty” rules to ensure that civilians are not targeted by drone strikes or other military action—are now being followed by the Trump administration.
But there are apparently no lessons learned. When it comes to reform proposals, Koh simply repeats the same call for more transparency that he issued upon upon leaving the administration in 2013. He writes:
The Obama administration [was not] sufficiently transparent—to the media, to Congress, and to our allies—about the legal standards and decision-making process that it applied to its use of drones. The inevitable release of necessary pieces of the administration’s public legal defense came too little and too late. This spurred a left-right coalition—running from Code Pink to Rand Paul—to speak out against the drone program, fostering the perception that the program was illegal, unnecessary, and out of control. The public lost track of the real issue, which was never drone technology per se, but rather the need for transparent, agreed-upon domestic and international legal process and standards.
So if Obama had just done a better job of explaining himself, Koh argues, the easily confused public would have been fully satisfied. Beyond that, nothing to see here. Move along.
Next in my series on drones: Democrats aren’t even trying to rein Trump in.