President Obama’s farewell speech was an exercise in marking norms. Offering a clear message to his successor, he spoke about the importance of civil liberties and rejecting discrimination against Muslims. He argued that protecting the American “way of life” means “[guarding] against a weakening of the values that make us who we are,” highlighting his administration’s work “to put the fight against terrorism on a firm legal footing.” He went on: “That’s why we’ve ended torture, worked to close Gitmo, and reform our laws governing surveillance to protect privacy and civil liberties.” He used forms of the word “democracy” 27 times.
Surveillance, indefinite detention, counterterrorism, and torture have emerged as prominent issues during the Senate hearings about Donald Trump’s administration picks. It is not yet clear what Trump’s policies on these issues will be, although his comments on the campaign trail suggest he supports the use of torture, keeping Guantanamo Bay open, and surveilling mosques and certain American citizens, among other things.
But anything Trump does will be built on legal “infrastructure” created by the Obama administration, argues Jameel Jaffer, the former deputy legal director of the American Civil Liberties Union. It may be true that Obama worked to create a sound legal basis for his administration’s national-security and surveillance policies, Jaffer said. But in doing so, he also gave his policies, many of which were extensions of the Bush era, a sense of permanence and legitimacy. Now, Trump will inherit the “firm legal footing” Obama helped created.