Donald Trump today enters the most powerful office in the United States, and probably the world. Just how powerful, however, is an area of much dispute. Despite early promises to curtail executive authority in areas of national security, foreign policy, and warmaking, some argue that President Obama has actually expanded those authorities, leaving a "loaded gun" in the Oval Office. The Cipher Brief talked with Harvard Professor and former Assistant Attorney-General in the Office of Legal Counsel, Jack Goldsmith, to find out just how much authority resides in the presidency and how checks and balances on presidential power have changed in the past 15 years.
The Cipher Brief: How have the national security powers of the presidency changed since 2001?
Jack Goldsmith: We have been at war since Congress authorized the president to use force a few days after the 9/11 attacks, and presidential power always grows significantly during wartime. What is novel about this war is that it has lasted over 15 years across three presidencies, and it shows no sign of abating. So presidential war powers, which the Constitution contemplated would swell temporarily during war, now seem to have swelled permanently. For nearly 15½ years, presidents have done things—extensive military force, expanded surveillance at home and abroad, detention without trial, and much more—that they never could have done absent the post-9/11 “forever war.”
TCB: Focusing on the Obama presidency, what kind of a legacy has he left concerning presidential restraint or expansion of presidential power on national security issues?
JG: Obama’s legacy has three parts: he legitimated most of the national security powers exercised by former President George W. Bush; he narrowed a few of these powers; and he broke new ground in expanding the president’s unilateral power to initiate war.
TCB: What legal areas has he expanded, where has he built new restrictions, and are those restrictions binding on the next president?
JG: Obama embraced a light footprint approach to war that emphasizes airpower (especially drones), cyberattacks, and special forces. In the process, he expanded unilateral presidential war powers along four dimensions. First, the 2011 bombing of Libya, unauthorized by Congress, solidified the legal basis for unilateral presidential power to conduct a humanitarian intervention. Second, the administration blew a hole in the main congressional restraint on war, the War Powers Resolution, when it concluded that the extensive aerial bombardment in Libya did not implicate the resolution’s restrictions because it did not amount to “hostilities.” Third, the administration unilaterally extended the 9/11 authority to use force against al Qaeda to include the Islamic State, which is not affiliated with al Qaeda. Fourth, it embraced arguments for narrower international law restrictions on war powers—restrictions that were controversial under Bush, but that under Obama’s leadership became more settled, at home and abroad. All of these legal precedents can be exploited by Obama’s successors when the time and need arise. Obama’s one major push-back on the use of force abroad was a policy to restrict the circumstances in which the United States could use force outside areas of active hostilities. These restrictions are not law, however, and can be reversed by a successor president.
Obama has also altered presidential powers in national security and war in other ways. He eliminated Bush’s CIA interrogation and black site program. In conjunction with Congress and the secretive Foreign Intelligence Surveillance Court, he in some respects expanded and in other respects contracted surveillance authorities. He cut back a bit on the president’s powers to try belligerents by military commission but pressed ahead in prosecuting the 9/11 conspirators in those commissions. He aggressively and successfully used federal criminal law to put many terrorists and terrorist supporters away. He had a mixed record on transparency. He tried and failed to close the Guantanamo Bay detention facility, but he cleared out almost all of the detainees.
TCB: Is there credence to the fear that checks on executive power, specifically in national security context, have eroded to the point where Trump might be able implement some of his more extreme campaign promises?
JG: I don’t think so. For example, Trump pledged to bring back waterboarding as U.S. policy, but there is no realistic chance of that happening. Congress has in the last 11 years tightened legal constraints on interrogation in a fashion that clearly prohibits waterboarding and other aggressive interrogation tactics. Just as important, the Pentagon and especially the CIA are still living with the fallout from interrogation practices from over a decade ago, and won’t do them again. It is noteworthy that many of Trump’s nominees last week acknowledged that waterboarding was unlawful and would not be re-implemented.
For similar reasons, I doubt Trump can implement his threats to target civilians with drones, criminally punish journalists, censor the Internet, create a Muslim registry, and the like. Trump can threaten these illegal things but he won’t be able to implement them. I wouldn’t take too much solace from this point, however, since a president can do many things that are lawful but awful. We’ll see.
TCB: Which are the most resilient currently existing checks on his power, and which need to be bolstered?
JG: There are many, both inside and outside the Executive branch. On the inside, a bevy of lawyers, ethics monitors, inspectors general, and bureaucrats in the intelligence and defense communities have expertise, interests and values, and infighting skills that enable them to check and narrow the options for even the most aggressive presidents. On the outside, the press, which did such an extraordinary job of holding Bush, and to a lesser extent Obama, to account, is more motivated than ever to hold Trump accountable. The same goes for civil society groups like the ACLU, which have used lawsuits, reports, and Freedom of Information Act requests to expose government operations and misdeeds since 9/11, and whose coffers have ballooned since Trump’s election. Spurred on by the press and civil society, the judiciary, which often stood up to Bush, will stand up even more to Trump if he engages in excessive behavior. Finally, Congress has been more consequential in constraining the national security president since 9/11 than people realize. And as we have already seen in some pushback from Senators John McCain (R-AZ), Lindsey Graham (R-SC), and Rand Paul (R-KY), it will stand up to Trump on many issues, even though his party nominally controls Congress.
None of these institutions are perfect. They are especially ill-suited to prevent the President from using military force as he sees fit, which is why the Obama Administration’s precedents in this context are so troubling. But the institutions do a much better job in other national security contexts than they have been given credit for, and they will be watching president Trump with a very skeptical eye and an array of powers to push back.
