When Donald Trump takes the oath of office in January, he will assume extraordinary powers used by the last two presidents to wage a global war on terrorism.
For the next president’s critics, this is a recipe for rule-of-law disaster. After all, Trump proposed a ban on all Muslims entering the country after last year’s rampage in San Bernardino, California. He has pledged, with profane enthusiasm, to bomb the Islamic State out of existence. Trump has at times said he would bring back torture for detainees, and that he would create a national database for all American Muslims.
Such promises led the American Civil Liberties Union in July to conclude in a paper that Trump represented “a one man Constitutional Crisis.”
How can someone who wants to bring back waterboarding and ban Muslims be trusted with the expansive power to wage a war without end?
The answer may be that Trump has no interest in waging it in the first place. Despite his bluster, he has also signalled distaste for foreign engagements. A Trump campaign slogan was “America First,” which he told the New York Times in July meant “we are going to take care of this country first before we worry about everybody else in the world.”
Trump has also questioned America’s participation in its traditional alliances, calling on allies to pay more their fair share.
Then there is the strange politics of the election itself. The mandarins of the national security state, people like former CIA deputy director Michael Morell and former NSA director Michael Hayden, were vocal critics of Trump. The one exception, former Defence Intelligence Agency director Michael Flynn, has been a gadfly in this community. While Flynn has called for a more robust war against the Islamic State, he has also questioned the efficacy of the drone programme. Flynn made his reputation by trashing the CIA’s analysis of terror networks in an unclassified policy essay.
All of this is important. For groups like the ACLU, one of the primary concerns about the war on terrorism has been the deference Congress and presidents paid to guys like Morell and Hayden. Ben Wizner, a senior lawyer at the group, told me on Wednesday, “The danger in the developments of the last decades of such a powerful executive, coupled with doctrines of deference to the executive, is that we may not always trust that executive.”
Then there is the fact that Trump has said so many outrageous things that at least some in his party don’t think he means them. Representative Devin Nunes, the chairman of the House Permanent Select Committee on Intelligence, told me on Wednesday that “it’s ridiculous to think Trump would bring back torture.” Nunes said Trump said such outbursts can be chalked up to the fact that he was a first-time politician.
Even if Trump does step over the line, there are many checks in the US system that would stop him. Jack Goldsmith, the Justice Department lawyer who wrote the legal opinions during George W. Bush’s first term that revoked the legal justification for enhanced interrogation, told me the bureaucracy would not allow him to bring waterboarding back.
“To the extent that he has threatened to take actions like a return to waterboarding that are clearly unlawful and that the bureaucracy opposes, the government will not let him exercise that order,” Goldsmith said.
Yet he had a caution: “For other things, the president has enormous discretionary authority to act unilaterally in ways that are lawful by unwise. For many of those things -- like deciding to ramp up or ramp down the drone program, or deciding which prosecutions to bring and how -- he does have a lot of power.”
Goldsmith said it was a mistake to view checks on a president’s power in a static way. “The bureaucracy, the press, the courts and Congress rose up against Bush to stop his interrogation practices,” he said. “On that issue, Bush wasn’t trusted and the American people did not like what they saw.”
By comparison, Obama did not get the same kinds of pushback from these institutions for his expansion of the drone war. “On many of Trump’s aggressive executive actions, he will be trusted less and get much less deference than Obama did,” Goldsmith said.
For now, Trump is reaching out to his intraparty opponents. In his victory speech Wednesday morning, he said, “For those who have chosen not to support me in the past, of which there were a few people, I am reaching out to you for your guidance and your help so that we can work together and unify our great country.”
Kori Schake, who served in the National Security Council under George W. Bush and signed a “NeverTrump” letter with other Republican foreign policy experts, told me she was willing to help.
“I think there are a lot of principled conservatives who were unwilling to help Trump get elected,” she said. “Now that the American public has elected him, they will feel a sense of obligation to make the policies he ran on into government policies that will not damage the republic.”
There was a time, not so long ago, when liberal Democrats said the administration Schake served in had done great damage to the republic. Today, I imagine they hope people like Schake will save the republic from Trump. Bloomberg