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.
During his time at the ACLU, Jaffer led litigation against the Obama administration on a number of national-security and transparency issues, and he recently wrote a book on the legal memos that enabled the administration’s policy on drone strikes. Jaffer currently leads the Knight First Amendment Institute at Columbia University and is an executive editor for the blog Just Security.
Our conversation has been edited and condensed for clarity.
Emma Green: Let’s go through each of Obama’s claims. Here’s the first: His administration “put the fight against terrorism on a firm legal footing.” That’s kind of hard to parse, but seems to be a reference to policies put in place during the Bush administration. It’s broad, but how well do you think this claim holds up?
Jameel Jaffer: The administration has a mixed record. They deserve credit for the disavowal of torture, the shuttering of the CIA’s black sites, and the commitment to close Guantanamo and the significant progress they made toward that goal. They deserve credit for the transparency decisions they made very early on in 2009 relating to the interrogation of prisoners.
They also abandoned, or at least downplayed, arguments relating to the president’s authority as commander in chief. The Bush administration argued that the president had the authority to ignore statutory law with respect to surveillance, interrogation, and torture. Their argument was that the president gets to decide what our national-security policies are, and if Congress has legislated in the area of national security, the president has the authority as commander in chief to ignore that legislation. That was an extremely dangerous argument, and one that the courts ultimately rejected. The Obama administration was right to abandon those arguments.
But I do think it’s important to recognize that in abandoning those constitutional arguments, the Obama administration ended up interpreting statutes very broadly. Obama didn’t argue that the president had the authority to ignore the Authorization for the Use of Military Force. He interpreted it to give him all the authority that he wanted. It was the same as Section 215 of the Patriot Act: The administration interpreted that provision so broadly that they didn’t have to rely on constitutional authority. They didn’t have to make the argument that the president, as commander in chief, has the authority to collect everybody’s call records because they were interpreting the federal statute so broadly that it allowed whatever they wanted it to.
“It would have been possible, eight years ago, to think of the Bush administration’s policies as aberrational. It’s no longer possible.”
Green: Here’s another claim: The Obama administration “ended torture.” Does that stand, as a categorical statement?
Jaffer: He’s right about that. This is an important thing that his administration did on the first day, which is to expressly disavow torture, withdraw the legal memos that were the basis of the torture program, close the CIA’s black sites permanently. Those were important decisions and the administration deserves credit for them.
The caveat, which is an important one, is that after having done all of those things on day one, the administration invoked the state-secrets privilege over and over to prevent those who had been the victims of these policies from having their day in court. People who sought accountability for their torture in CIA custody or in military custody were kicked out of court because the administration argued that those cases were too sensitive to litigate.
Green: Another claim he made was that his administration worked to “reform our laws governing surveillance to protect privacy and civil liberties.” To what extent do you think that holds up?
Jaffer: There were some changes made by Congress in the summer of 2015, which the administration supported. The changes were modest, and came about only because Snowden disclosed what he disclosed. But for those disclosures, none of those reforms would have taken place.
The administration still characterizes Snowden as a criminal. There’s an irony in the Obama administration trying to take credit for these positive changes in the law while also trying to prosecute the person who is most responsible for bringing these changes about.
Green: The Obama administration’s aggressive prosecution of whistleblowers stands in contrast to some of the claims he made in his speech about protecting civil liberties. How does that policy connect to some of these issues?
Jaffer: This administration came in saying this would be the most transparent administration in the history of the United States. Over time, they became more closed and less forthcoming. They withheld many of the most crucial documents related to national-security policy, including the drone memos, until courts ordered them to release them, and information about government surveillance, until Snowden disclosed that information.
And they brought more prosecutions against government whistleblowers than all previous administrations combined.
“We’ve invested all this power in the presidency, and all that power will be available to President Trump.”
Green: How does the administration’s drone policy fit into Obama’s legacy on national security and transparency?
Jaffer: The phrase Obama used was putting “the fight against terrorism on a firm legal footing.” The other way to look at it is that this administration has normalized and entrenched many of the policies of the last administration. It would have been possible, eight years ago, to think of the Bush administration’s policies as aberrational—to see them as a reaction, and an overreaction, to the events of 9/11. It’s no longer possible to see these policies that way because the Obama administration has endorsed so many of them.
With respect to the drone campaign, that’s especially true: The Obama administration built a bureaucratic infrastructure to support this practice of targeted killing. It expanded the program dramatically. It now carries out, routinely, strikes in seven different countries; most of those countries are not conventional battlefields. I don’t think President Bush would have been able to expand the drone campaign in the way that Obama eventually did. Now we’ve invested all this power in the presidency, and all that power will be available to President Trump and whoever comes after President Trump.
Green: What’s the outlook for some of these issues, in your view, with the incoming administration?
Jaffer: Given the some of the statements of candidate Trump during the campaign, and given the track records of some of the people who are advising him at the highest levels, I think there are a lot of reasons to worry about how the new administration will use the powers that President Obama created or put on a relatively sound legal footing: the power to detain, the power to surveil, the power to kill. The president-elect has already made clear that he wants to use some of these powers even more aggressively: He wants to step up surveillance inside the United States, especially of Muslims. He wants to expand the war on terror. He has proposed resurrecting the torture policies. [In November, Trump told The New York Times that he has changed his view on this issue after consulting with his now-nominee for Secretary of Defense, the retired U.S. Marine Corps General James Mattis.]
It’s difficult to know which of these promises will translate into actual policy, but there’s certainly reason to worry that these powers will be used even more aggressively and in an even less discriminating way than they’ve been used until now.