On October 2, 2007, trailing far behind then–Sen. Hillary Clinton in the polls, Obama delivered a major campaign address at DePaul University in Chicago, timed to mark the fifth anniversary of the “dumb wars” speech. “Five years ago today, I was asked to speak at a rally against going to war in Iraq,” Obama told the students. Yet Congress voted “to give the president a blank check” that left America “mired in an endless war.”
“We all know what Iraq has cost us abroad,” Obama declaimed at DePaul, “but these last few years we’ve seen an unacceptable abuse of power at home.…We’ve paid a heavy price for having a president whose priority is expanding his own power.” If elected, he pledged, he’d “turn the page on a growing empire of classified information” and “turn the page on the imperial presidency.” “It’s easy to be cynical” about politicians’ promises, Obama closed, but “I’m running for the presidency of the United States of America so that together we can do the hard work to seek a new dawn of peace.”
As a presidential candidate, Obama made clear that, along with “dumb wars,” he firmly opposed unauthorized wars. That December, in a candidate survey on executive power conducted by reporter Charlie Savage, Sen. Obama stated plainly: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
As Obama gained on Clinton in the following months, she was reduced to carping: “I have a lifetime of experience that I will bring to the White House.…Sen. Obama has a speech he gave in 2002.” And yet that speech turned out to be instrumental to Obama’s winning the nomination, and thus the presidency.
Obama’s unlikely ascendancy culminated at Chicago’s Grant Park on election night 2008. The National’s “Half Awake in a Fake Empire,” the campaign’s semi‐official hipster anthem, thrummed out over an ecstatic crowd of 125,000 as the president‐elect prepared to take the stage. “If there is anyone out there who still doubts that America is a place where all things are possible, who still wonders if the dream of our founders is alive in our time…tonight is your answer,” Obama proclaimed. “Change has come to America.”
The ‘Forever War’ President
“Shut the fuck up!” Obama reportedly exclaimed on the early morning of October 9, 2009, when press secretary Robert Gibbs woke him with the news he’d won the Nobel Peace Prize. In retrospect, it might have spared everyone a lot of embarrassment had Obama pulled a Bob Dylan and gone AWOL on the Committee. A week before the announcement, after all, Obama had ordered 30,000 additional troops to Afghanistan, and by the time he hit the podium at Oslo to acknowledge the “considerable controversy” the award had caused, he’d already launched more drone strikes than George W. Bush managed in his two full terms.
In the years to come, the U.S. military’s “operational tempo” would grow steadily more frantic, as Obama surged troop levels to 100,000 in Afghanistan, launched two undeclared wars, deployed U.S. Special Forces to 85 countries around the globe, and tallied 10 times as many drone attacks as his predecessor. Over Labor Day weekend this year, while Americans stocked up on Bud Limes and burger rolls, their government launched nearly 70 airstrikes across six countries: Iraq, Syria, Afghanistan, Yemen, Somalia, and Libya. As the end of Obama’s tenure approached, The New York Times noted, he was poised to become “the first two‐term president to have presided over a nation at war for every day of his presidency.”
One fears he won’t be the last. Having knocked flat the remaining legal restrictions on presidential warmaking, Obama has cleared the way for all the “dumb,” “rash” wars future presidents might choose to wage.
Tomahawk Humanitarianism in Libya
Less than a year after his Nobel speech, Obama launched his first “war of choice,” against the Muammar Gaddafi regime in Libya. To wage it, Obama advanced the extraordinary argument that seven months of regime‐change bombing was neither a “war” for constitutional purposes, nor did it even rise to the level of “hostilities.”
The Libyan war—or “kinetic military action,” in the administration’s preferred euphemism—would last “days, not weeks,” Obama assured Congress. But as weeks turned into months, it became obvious that America’s North Atlantic Treaty Organization allies couldn’t finish the job without U.S. airpower. The Pentagon’s top lawyer, the attorney general, and the Office of Legal Counsel all told the president they saw no way around the looming deadline under the War Powers Resolution (WPR), which requires the president to terminate U.S. engagement in “hostilities” after 60 days in the absence of congressional authorization. So the president went to the State Department’s top lawyer, who came up with the legal cover he wanted.
In a report to Congress submitted 90 days after the war began, Obama asserted that since U.S. airstrikes didn’t involve “the presence of U.S. ground troops, U.S. casualties or a serious threat thereof,” the WPR’s limits didn’t apply. In plainer language: If you’re bombing a country that can’t hit you back, you’re not engaged in “hostilities.”
It’s a bizarre doctrine for a putatively humanitarian, internationalist president to advance: It’s not war if you’re only killing foreigners. But as U.S. remote‐warfare capabilities increase, the precedent Obama set will prove useful to future presidents of any stripe.
One Congress, One Vote, One Time
So too will Obama’s extralegal expansion of the 2001 Authorization for the Use of Military Force (AUMF), passed three days after 9/11 and aimed at Al Qaeda and the Taliban. In the drone campaign and the war with ISIS, Obama completed a process begun in the Bush administration—the transformation of the 2001 AUMF into a blank check for globe‐spanning presidential war.
By the spring of 2013, senior Obama administration officials were telling The Washington Post they were becoming “increasingly concerned that the law is being stretched to its legal breaking point.” That was before the administration stretched it still further, to provide legal cover for the war against ISIS that Obama launched in August 2014.
Given that the core group the AUMF targeted, Al Qaeda, had denounced and excommunicated ISIS, and given that the two were at war with each other, it was hard to see how a 15‐year‐old authorization could cover both. Still, “Congress in 2001 did give the executive branch the authority to take this action. There’s no debating that,” White House Press Secretary Josh Earnest insisted in October 2015, as the administration put boots on the ground in Syria. Even so, the proliferation of headlines like “ISIS Beheads a Dozen Men Accused of Fighting for Al Qaeda” or “Petraeus: Use Al Qaeda Fighters to Beat ISIS” might give one cause to wonder whether ISIS is the same enemy Congress authorized President Bush to wage war against in September 2001, back before Steve Jobs unveiled the first iPod.
The Droning Will Continue Until Morale Improves
“Ten to 20 years” is the standard, recurring answer administration officials give whenever they’re asked how long the various wars on terror will go on. It’s “going to be a generational struggle,” the Army chief of staff affirmed in 2015.
Get used to “ever‐morphing enemies, an uncertain though expanding geographical scope, and an indefinite duration unlike any war in previous eras in U.S. History,” former Bush administration lawyers Jack Goldsmith and Matthew Waxman advise in a recent essay for The Washington Quarterly. By forging this “remarkable legacy of presidential power to use military force,” the Obama administration will empower future presidents to start wars at will and continue them beyond the WPR’s limits, at least in situations where few American body bags are expected.
The sort of military actions the administration prefers “take place largely in secret, largely from a distance, and largely without threat to U.S. personnel,” Goldsmith and Waxman write, which means they receive vanishingly little public debate or congressional scrutiny. But “light‐footprint warfare” nonetheless has “large foreign policy, strategic, and reputational consequences for the United States, akin to much heavier deployments.”
Resentment stoked by the U.S. drone program is “much greater than the average American appreciates,” retired General Stanley McChrystal, former U.S. commander in Afghanistan, told Reuters in 2013. “They are hated on a visceral level, even by people who’ve never seen one,” feeding a “perception of American arrogance that says, ‘We can shoot where we want, because we can.’ ”
The Intercept recently reported on a classified FBI study acknowledging that homegrown jihadists “frequently believe the U.S. military is committing atrocities in Muslim countries, thereby justifying their violent aspirations.” A number of Obama‐era domestic terrorists, including Faisal Shahzad, the would‐be Times Square bomber, and Orlando shooter Omar Mateen, seem to fit that pattern.
The open‐ended war on emerging jihadist groups that Obama’s legal innovations have enabled may in turn generate its own political justification, as the attacks it helps inspire spur a more aggressive response abroad. “The global war on terror has acquired a life of its own,” says intelligence analyst Patrick Lang: “It’s a self‐licking ice cream cone.”
Institutionalizing ‘the War Mentality’
In a now‐forgotten birtherism side‐project, Donald Trump used to insist that Obama couldn’t possibly have gone to Columbia University: His classmates “never saw him…it’s crazy.” In fact, the future president’s first published article, in 1983, was for the Sundial, a Columbia student weekly. In the piece, entitled “Breaking the War Mentality,” college senior Barry Obama praised a pair of local nuclear freeze groups for resisting “the relentless, often silent spread of militarism in the country.”
“Most students at Columbia do not have first hand knowledge of war,” Obama wrote: “military violence has been a vicarious experience…the sounds and chill, the dead bodies—are remote and far removed. We know that wars have occurred, are occurring, but bringing such experience down into our hearts, and taking continual, tangible steps to prevent war, becomes a difficult task.”
“It was his first expression of his views on any foreign policy subject,” journalist James Mann writes, “and years later, his aides felt it was deeply felt and lasting.” And yet, what other president has done as much to make war at once so pervasive, and yet so “remote and far removed”?
Half Awake in the Fake Empire
If the public debate over the war on terror seems stunted, that’s in part the result of deliberate policy. When Robert Gibbs floated the “most transparent administration in history” line again in 2010, Politico reported that “laughter broke out in the briefing room.” And for good reason: Among other things, Obama has conducted more Espionage Act prosecutions against leakers than all of his predecessors combined. He’s taken state secrecy to new heights of absurdity, denying Americans information about the legal standards under which the government can spy on them or even kill them.
Obama’s legal team has fought doggedly to prevent the public from seeing Justice Department memoranda containing, not intelligence sources and methods, but the legal arguments undergirding the president’s claim that he has the authority to put American citizens on a “kill list.” In Freedom of Information Act litigation on that point, the administration’s position has been that “the very fact of the existence or nonexistence of such documents is itself classified.”
The administration waged a similar battle to prevent Americans from discovering what Senate Intelligence Committee member Ron Wyden was referring to when he began warning in 2011 about the executive branch’s “secret interpretation” of the PATRIOT Act, one far broader than “what most Americans think the law allows.” Only in summer 2013, thanks to former National Security Agency (NSA) contractor Edward Snowden, did the public learn the administration had been vacuuming up Americans’ phone data under the theory that “essentially the entire nation’s calling records are ‘relevant’ ” to counterterrorism investigations.
The dangers of dragnet data collection are, by now, widely understood: The digital trails we leave are a window into our private lives and can be used to ferret out information that authoritarian governments historically used to blackmail and control dissenters. In the NSA’s quest to “collect it all,” the agency had built what Snowden termed a “turnkey tyranny.”
“I welcome this debate and I think it’s healthy for our democracy,” Obama declared when the story broke, even while his administration filed Espionage Act charges against Snowden. “It’s a sign of maturity,” Obama said, because just a few years ago, “we might not have been having this debate.” True enough: If you’ve been deliberately kept in the dark about your government’s surveillance policies, it’s hard to get a proper debate going. But now, armed with better information, surely we could fix the problem by petitioning our elected representatives to address our grievances.
In early 2014, John Napier Tye, then a State Department official with a top‐secret security clearance, prepared a speech making that very point: Citizens who object to mass data mining “have the opportunity to change the policy through our democratic process.” But when Tye sent the draft over to the White House Counsel’s office for approval, the president’s lawyers told him to take out that line, on the grounds that it wasn’t true. Even after Snowden’s disclosures, Tye later explained in The Washington Post, “some intelligence practices remain so secret, even from members of Congress, there is no opportunity for our democracy to change them.”
Some of those practices, Tye hinted, go beyond “metadata” and involve bulk collection of the content of citizens’ personal communications. The rules for “incidental” collection of domestic content that transits abroad are far weaker, and vast amounts of Americans’ private communications—email, texts, Skype chats, and Facebook messages—can potentially be funneled through that loophole onto the NSA’s servers and shared with federal law enforcement agencies, free from judicial oversight. “Americans deserve an honest answer to the simple question,” Tye wrote: “What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?”
Royal Dispensations on the Home Front
Presidents typically have an easier time expanding their powers in areas like surveillance and war, where appeals to national security have greater sway. Even so, Obama also forged new frontiers in the use of executive power at home, in areas where no specter of foreign danger could be invoked.
“The biggest problems we’re facing right now,” Obama intoned on the campaign trail in 2008, involve the “president trying to bring more power into the executive branch and not go through Congress at all.” By 2011, frustrated by inaction on the Hill, the Obama team formally and unabashedly announced that “We Can’t Wait” any longer for Congress to pass laws.
The centerpiece of the “We Can’t Wait” campaign was a 2012 “homeland security directive,” “Deferred Action for Childhood Arrivals” (DACA), creating a path to lawful residency for over a million unauthorized immigrants who came to the United States as minors. DACA’s eligibility criteria closely tracked an immigration reform bill that Congress had rejected. A mere technicality, the president insisted; it’s “the right thing to do for the American people.”
That directive, together with a 2014 order expanding the program, represented a massive restructuring of U.S. immigration law, unilaterally granting lawful status and eligibility for federal benefits to nearly half of the 11 million undocumented immigrants in the country. As Justice Anthony Kennedy put it during oral argument in United States v. Texas, a 2016 challenge to Obama’s edicts: “It’s as if the President is setting the policy and the Congress is executing it. That’s just upside down.”
The president’s “royal dispensation” for millions of immigrants was hardly his most disturbing abuse of executive authority. Halting deportation in these cases was a humane and prudent policy, and it’s no surprise that most liberals and many libertarians viewed it as “the right thing to do.”
But as George Washington law professor Jonathan Turley observed in December 2015, that ignores the “obvious danger” of rule by decree: The policies one favors “may not carry over to the next president, [but] the powers will.”
“Energy in the executive,” Alexander Hamilton argued in the Federalist, is “essential to the steady administration of the laws.” Today it has the opposite effect: the “law” can change radically from administration to administration, depending on the policy preferences of the president. “The problem with allowing a person in office to become a government unto himself,” Turley warned, “is that you cannot guarantee who the next president might be.”
Gridlock as a Grant of Power
Throughout his second term, Obama increasingly governed by executive fiat. “I’ve got a pen, and I’ve got a phone,” he bragged, and he proceeded to use them to, among other things: pressure schools throughout the country to adopt national curriculum requirements Congress never authorized; promulgate new rules that nearly quadruple the number of workers eligible for overtime pay; force American power plants and, ultimately, electricity consumers to bear billions of dollars of costs in reducing greenhouse gas emissions, despite the fact that Congress has never voted to treat CO2as a pollutant; issue regulatory “guidance” documents purporting to make the rules for nearly every school and workplace bathroom in the United States; and unilaterally amend the Affordable Care Act by ignoring clear statutory mandates and deadlines.
During his efforts to rewrite the Affordable Care Act on the fly, Obama even invented a presidential “power of the purse” and ordered the disbursement of billions of dollars in “cost‐sharing” subsidies that Congress never appropriated. When IRS officials voiced doubt about the legality of those payments, they got the kind of strong‐arm briefing David Addington, “Cheney’s Cheney,” specialized in during the Bush years. The dissenters were handed a secret memo rationalizing the move, told they “could not take notes or make copies,” and informed that the attorney general had declared the expenditures legal. Whatever the source of that authority might be, Obama officials couldn’t specifically identify it under questioning at a congressional hearing last July, though a top Treasury official volunteered: “If Congress doesn’t want the money appropriated, they could pass a law that specifically says don’t appropriate the money from that account.”
More than any recent president, Obama has embraced and, to some extent, legitimized the anti‐constitutional theory that congressional inaction is a legitimate source of presidential power. It’s a theory future presidents will build upon. In the words of the University of North Carolina legal scholar William P. Marshall, “The genies of unilateral executive action are not easily returned to the bottle.”
A ‘Loaded Weapon’
Some 30 years ago, the distinguished political scientist Theodore Lowi coined a mordant Law of Succession, which holds that each new president enhances the reputation of his predecessors. (Corollary: “This is the only certain contribution each president will make.”)
Obama has left a ghastly legacy, yet it’s likely that even his harshest critics will grow to miss him. He made for a spectacularly lousy demagogue, and was visibly uncomfortable with the role when he tried. Though he was never in practice a “reluctant warrior,” he could play one on TV, doing the requisite public hand wringing and soul searching about the expansive new powers he’d forged.
For whatever it’s worth, those qualms seem to be sincere. In discussions with his advisors, Obama has been heard to worry about “leaving a loaded weapon lying around” for future presidents to wield. If only he—and the rest of us—had worried more.
You wouldn’t call Donald Trump a gracious man, but he seems genuinely appreciative of the expanded executive arsenal Obama leaves him. The president‐elect intends to “do a lot of right things” with those powers: “I mean, [Obama’s] led the way, to be honest with you.”
It hardly taxes the imagination to envision Trump gleefully abusing all the weapons of the modern presidency: the pen, the phone, and the drone. In fact, he’s essentially admitted he will, with gobsmacking candor: “If I become president, oh do they have problems,” he’s said of Amazon’s Jeff Bezos and the paper he owns, The Washington Post. Riffing on the speculation that Russia hacked Hillary Clinton’s email, he told a crowd in Scranton, Pennsylvania, last summer: “I wish I had that power. Man, that would be power.”
Ironically, Obama’s executive unilateralism on immigration may end up facilitating Trump’s plan for mass deportations. As Cato Institute immigration scholar Alex Nowrasteh notes, the Trump administration will “now have access to the identities of all the beneficiaries of DACA who had to submit their personal information to benefit, a source of information that could be used to more efficiently deport them.” Other “right things” Trump envisions doing as president include hammering his critics with antitrust prosecutions; creating a database to track Muslim citizens; “bomb[ing] the shit” out of the Middle East; and ordering the U.S. military to commit war crimes.
For most of the 2016 campaign, the very idea of “President Trump” seemed like a thought experiment a libertarian might have invented to get a liberal friend to focus on the dangers of concentrated power. Now it’s an experiment we’re going to run in real life, starting January 20, 2017.
If you introduce a gun in the first act, the old dramatic principle holds, it needs to be fired in the second. We seem determined to play out that script.