Sadly, Trump’s ability to disregard human rights norms will be made easier by President Obama’s inability to fully roll back and confront President George W. Bush’s abuses.
Obama took office with great promise, announcing on his second day that he would immediately stop CIA torture and secret detention, and close the military prison at Guantanamo Bay, Cuba, within a year. Torture and secret detention stopped, but Obama refused to prosecute those responsible for sanctioning torture and released only a summary of a comprehensive Senate Intelligence Committee report documenting what had taken place. The ramifications? Instead of reaffirming the criminality of torture enshrined in U.S. and international law, Obama leaves office having sent the lingering message that, should future officials resort to torture, there is little chance they will be held to account — paving the way for Trump to campaign on the idea of reinstating waterboarding, a form of torture, or “a hell of a lot worse.”
The president’s effort to prosecute the Sept. 11 plotters was similarly flawed. Attorney General Eric H. Holder Jr. announced early in Obama’s tenure that the administration intended to move five detainees from Guantanamo Bay to federal court in New York for prosecution. But the administration eventually capitulated to political resistance, and Congress later enacted legislation, which Obama did not veto, blocking the transfer of Guantanamo Bay detainees to the United States for detention or trial. The result, Holder said, was that he had no choice but to place the suspects before military commissions at Guantanamo Bay. These made-from-scratch tribunals, replete with procedural problems, were designed in part to avoid public revelation of the details of the suspects’ torture. They have made virtually no progress toward an actual trial.
Obama has made progress reducing Guantanamo Bay’s detainee population through transfers overseas — just last week, four Yemenis were transferred to the custody of Saudi officials, and more transfers are expected before Obama leaves office — but to this day he insists on holding about two dozen detainees indefinitely whom the administration claims, on the basis of little if any public evidence, are too dangerous to release but against whom there is insufficient evidence for criminal charges. The failure to close Guantanamo Bay makes it more likely that Trump will start to repopulate it, as he has threatened.
Then there’s Obama’s reliance on drone warfare. He stepped up the use of aerial drones — far beyond their use during his predecessor’s administration — without sufficient clarity about the legal framework for their use, let alone adequate transparency about compliance with international law. The problem is not so much places where the United States is clearly involved in an armed conflict — Afghanistan against the Taliban, or Iraq and Syria against the Islamic State — where drones used to target combatants can reduce the chances of civilian casualties because they are more accurate than conventional weapons, have a relatively small blast radius and can safely linger before firing until no or few civilians are nearby. They also decrease American troops’ exposure to combat.
However, the justification for their use outside conventional war zones is more problematic. There, under international human rights law, lethal force may be used only as a last resort to stop an imminent threat to human life. In a 2013 speech at the National Defense University, Obama seemed to embrace such a standard for areas outside combat zones, but because drone strikes are frequently carried out in secret, it is often impossible to tell whether his administration is adhering to this standard. In a number of instances, the administration appears to have defined an “imminent” lethal threat so broadly as to effectively render the standard meaningless.
Obama’s counterterrorism approach also stressed reliance on foreign security forces, aided by U.S. air support and Special Operations Forces. Such partnerships and local buy-in are essential for counterterrorism efforts to succeed, but the existing human rights vetting programs either did not apply to the CIA — a key funder of such partnerships — or were insufficiently robust to address the widespread or entrenched abuse of many U.S. partners, such as Afghan and Iraqi security forces. So while the U.S. government often insisted rhetorically that its local partners respect international norms, there was little consequence in practice for those who committed abuses. Based on Trump’s campaign rhetoric, there is little reason to think he will proceed differently.
With respect to surveillance, Obama appears to have largely continued programs that lead to massive invasions of privacy and threaten freedom of expression and media freedom. Once Edward Snowden alerted the public to these programs, the president did announce modest reforms to the National Security Agency’s bulk collection of domestic telephone records and issued a policy that gestured at the importance of foreigners’ privacy. However, most of the mass privacy violations that Snowden disclosed remain unaddressed.
Notably, the Obama administration maintains that when it comes to noncitizens abroad, the U.S. government is free to sweep up not only records of their email and telephone communications, but also the content of those communications — as if the United States owes no protection at all to their right of privacy. Moreover, an unknown but likely large number of people in the U.S. are caught in the “foreign” surveillance dragnet every year, and the government may be using some of this surveillance data as evidence in a manner that undermines fair-trial rights in U.S. courts — including, potentially, in cases having nothing to do with terrorism.
There’s no question that Obama has been personally more concerned than Bush with human rights constraints to fighting terrorism and has taken steps to curb some of the worst excesses. But the danger of his failure to institutionalize his approach becomes apparent as we contemplate a Trump presidency. Going forward, Obama’s implicit “trust me” simply will not provide the long-term defense of rights that we need.