Liberty Blitzkrieg – by Michael Krieger
More disappointing than the Obama administration itself (which was very disappointing), were the seemingly endless hordes of fake liberals constantly justifying and making excuses for his well documented litany of civil liberties abuses. Naturally, I likewise expect countless Trump supporters to instinctively make similar excuses for Trump if he should end up naming former Goldman Sachs Partner, and overall finance miscreant, Steve Mnuchin as Treasury Secretary. This is a huge part of our problem as a nation. Rather than having well defined principles and defending them, we tend to pick personalities we like and then cheer them on as uncritically as our favorite sports teams.
Moving along, a New York Times article published yesterday highlighted some of the extremely illiberal policies perpetrated by so-called “liberal” champion, Barack Obama.
Here are a few key excerpts:
Over and over, Mr. Obama has imposed limits on his use of such powers but has not closed the door on them — a flexible approach premised on the idea that he and his successors could be trusted to use them prudently. Mr. Trump can now sweep away those limits and open the throttle on policies that Mr. Obama endorsed as lawful and legitimate for sparing use, like targeted killings in drone strikes and the use of indefinite detention and military tribunals for terrorism suspects.
And even in areas where Mr. Obama tried to terminate policies from the George W. Bush era — like torture and the detention of Americans and other people arrested on domestic soil as “enemy combatants” — his administration fought in court to prevent any ruling that the defunct practices had been illegal. The absence of a definitive repudiation could make it easier for Trump administration lawyers to revive the policies by invoking the same sweeping theories of executive power that were the basis for them in the Bush years.
Two decisions by Mr. Obama in 2009 set the tone for his leave-it-on-the-table approach. They involved whether to keep indefinite wartime detentions without trial and to continue using military commission prosecutions — if not at the Guantánamo prison, which he had resolved to close, then at a replacement wartime prison.
Told that several dozen detainees could not be tried for any crime but would be particularly risky to release, and that a handful might be prosecutable only under the looser rules governing evidence in a military commission, Mr. Obama decided that the responsible policy was to keep both the tribunals and the indefinite detentions available.
The president refused to use either power on newly captured terrorism suspects, instead prosecuting them in civilian court. But by leaving the options open, he helped normalize them and left them on a firmer legal basis.
Mr. Obama followed a similar course with several national security practices that became controversial during his first term. After his use of drones to kill terrorism suspects away from war zones led to mounting concerns over civilian casualties and other matters, he issued a “presidential policy guidance” in May 2013 that set stricter limits. They included a requirement that the target pose a threat to Americans — not just to American interests — and that there would be near certainty of no bystander deaths.
But the Obama administration also successfully fought in court to establish that judges would not review the legality of such killing operations, even if an American citizen was the target. Mr. Trump — who has said he would “bomb the hell out of ISIS,” beyond what Mr. Obama is doing, and go after civilian relatives of terrorists, prevailing over any military commanders who balked — could scrap the internal limits while invoking those precedents to shield his acts from judicial review.
Similarly, after a surge of criminal prosecutions against people who leaked secret information to the news media and bipartisan outrage at aggressive investigative tactics targeting journalists, the Obama Justice Department issued new guidelines for leak investigations intended to make it harder for investigators to subpoena reporters’ testimony or phone records. It also decided not to force a reporter for The New York Times to testify in a leak trial or face prison for contempt.
But the Obama administration also successfully fought in court to establish that the First Amendment offers no protection to journalists whom the executive branch chooses to subpoena to testify against confidential sources. Mr. Trump, who has proposed changing libel laws to make it easier to sue news organizations, could abandon the Obama-era internal restraints and invoke the Obama-era court precedent to adopt more aggressive policies in leak investigations.
Well done Obama.
In Liberty,
Michael Krieger
“Mr. Trump, who has proposed changing libel laws to make it easier to sue news organizations, could abandon the Obama-era internal restraints and invoke the Obama-era court precedent to adopt more aggressive policies in leak investigations.”
He could at that.
But he won’t.