Tyrant-Proof the White House—Before It's Too Late

Bush and Obama ran roughshod over Madisonian checks and balances, but there's still time to restore them.

Gretchen Ertl / Reuters

An op-ed in Tuesday’s New York Times points out that, thanks to precedents set by President Obama, “whoever prevails in November will inherit a sweeping power to use lethal force against suspected terrorists and militants, including Americans.”

Let me put things more starkly: Under current precedent, the commander in chief can give a secret order to kill an American citizen with a drone strike without charges or trial.

Should Donald Trump have that power?

The ACLU’s Jameel Jaffer and Brett Max Kaufman don’t think so, and propose several specific reforms that would limit the next president’s ability to wage drone warfare. Obama should be transparent about the rules that govern drone strikes, “release the legal memos that purport to justify drone strikes away from battlefields,” and “make it the country’s default practice to acknowledge all drone strikes — not just those carried out on conventional battlefields, as in Iraq and Syria.”

He should  “withdraw the C.I.A.’s authority to carry out drone strikes and provide that any future strikes will be authorized and carried out by the Department of Defense.” And he should establish a policy of investigating and publicly explaining strikes that kill innocent civilians, and of compensating those victims’ families.”

Reforms of that sort would do more to limit abuses under the next president than the status quo. But as I’m sure the ACLU co-authors would agree, even more steps are necessary, and Congress should reassert itself and fulfill its role as a coequal branch.

Back in 2013, I argued that the U.S. has been building “all the infrastructure a tyrant would need, courtesy of Bush and Obama,” adding, “More and more, we're counting on having angels in office and making ourselves vulnerable to devils.” With Trump and Hillary Clinton leading in the primaries, let’s revisit some particulars:

Bush and Obama have built infrastructure any devil would lust after. Behold the items on an aspiring tyrant's checklist that they've provided their successors:

  • A precedent that allows the president to kill citizens in secret without prior judicial or legislative review
  • The power to detain prisoners indefinitely without charges or trial
  • Ongoing warrantless surveillance on millions of Americans accused of no wrongdoing, converted into a permanent database so that data of innocents spied upon in 2007 can be accessed in 2027
  • Using ethnic profiling to choose the targets of secret spying, as the NYPD did with John Brennan's blessing
  • Normalizing situations in which the law itself is secret -- and whatever mischief is hiding in those secret interpretations
  • The ability to collect DNA swabs of people who have been arrested even if they haven't been convicted of anything
  • A torture program that could be restarted with an executive order

Even if you think Bush and Obama exercised those extraordinary powers responsibly, what makes you think every president would? How can anyone fail to see the huge potential for abuses?

Before moving into a new house, parents of small children engage in child-proofing. Before leaving the White House, Obama should engage in tyrant-proofing. For eight years, he has evinced a high opinion of his own ability to exercise power morally, even in situations where Senator Obama thought that the president should be restrained. At this point, better to flatter his ego than to resist it. You’ll be gone soon, Mr. President, and for all our disagreements, I think your successor is highly likely to be less trustworthy and more corruptible than you were.

Insofar as you can, limit his or her ability to violate liberties or hide atrocities before you go. It may be the most significant step you can take to safeguard your legacy.

Republicans in the House and Senate, it’s your responsibility to act, too. Many of you are horrified by the idea of a Trump Administration or a Clinton Administration. With a high likelihood that one of those two outcomes will be reality in a matter of months, why not begin reining in the power of the executive branch now, when the possibility of bipartisan cooperation on such a project is at its height?

This is a no-brainer.