January 9, 2017
President-elect Donald Trump will face pervasive doubts about his legitimacy from the day he takes office. Trump’s opponents will assert that he is governing in unprecedented and reckless ways. The best response to that charge is to open the books to reveal how the Obama administration stretched its power far beyond what most Americans realized.
Trump should follow the excellent precedent set by Barack Obama. In 2009, shortly after he took office, Obama released many of the secret Bush administration legal memos that explained why the president was supposedly entitled to order torture, deploy troops in American towns and cities, and ignore the Fourth Amendment’s prohibition on warrantless, unreasonable searches. Those revelations proved that the Bush administration was far more of an elective dictatorship than most people suspected. The disclosures signaled a new era and helped give Obama – at least temporarily – a reputation as a champion of civil liberties.
Turnabout is fair play. Trump should quickly reveal the secret memos underlying Obama’s “targeted killing” drone assassination program. Administration lawyers defeated lawsuits by the ACLU and New York Times seeking disclosure of key legal papers on how the president became judge, jury, and executioner. Obama sought to codify a presidential right to kill that would have mortified earlier generations of Americans. His program has been cloaked in secrecy and sanctimony from the start and most of the media have shown little curiosity and no outrage even when the feds admitted that innocent civilians were killed. A Trump administration could disclose the memos and legal rationales of the program without endangering anything other than the reputation of the soon-to-be former president and his policymakers.
At the end of Obama’s presidency, the United States is bombing seven foreign nations – but most of the actions have been cloaked in secrecy, often supplemented by deceit. Opening the files at the Pentagon, CIA, and State Department on U.S. intervention in the Syrian Civil War might explain why the U.S. plunged deeper into that morass. Pentagon-backed Syrian rebels have openly battled CIA-backed rebels. The U.S. has armed and bankrolled Al Qaeda-linked groups in Syria despite federal law prohibiting providing material support to terrorist groups. The U.S. dropped 12,192 bombs on Syria last year – at a time when much of the Washington establishment and media was vilifying Obama for not intervening. We need the bureaucratic smoking guns on this policy.
Likewise, revealing the paper trail behind the U.S. bombing of Libya in 2011 – which Secretary of State Hillary Clinton labeled “smart power at its best” – could preempt cheerleading for similar follies in the future. The purported rationales for this debacle have never passed the laugh test. Obama told Americans that “the democratic values that we stand for would be overrun” if the U.S. did not join the French and British assault on the Libyan government. Obama asserted that one goal of the U.S. attack was “the transition to a legitimate government that is responsive to the Libyan people.” But there was no sober reason to expect a happy ending from blasting that regime. What did the U.S. government know and when did it know it regarding the likely effects of toppling Libyan dictator Muammar Gaddafi?
It is naive to assume that “truth will out” from federal bureaucracies. It is vital for a Trump White House to compel disclosures because the Freedom of Information Act (FOIA) has become largely a mirage in recent years. While Obama boasted of “the most transparent administration in history,” federal agencies slammed the door on routine requests – especially from the media. The Associated Press reported last year that the Obama administration “set a record again for censoring government files or outright denying access to them” under FOIA. Federal agencies were also hit by a record number of lawsuits contesting FOIA denials in 2015.
If Hillary Clinton had won the presidency, some people would have blamed the State Department’s “slow walking” of FOIA requests for her emails (which she improperly kept on a private server). The FBI worked through 650,000 emails from Anthony Weiner’s computer in eight days but the State Department claimed it needed 75 years to fully answer a FOIA request on Hillary Clinton’s aides’ emails. The State Department delayed for more than five years answering a simple request from the Associated Press for the schedule and meetings attended by Ms. Clinton. A federal judge and the agency’s Inspector General slammed its FOIA stonewalling.
The Department of Homeland Security also has a dreadful FOIA record. That agency permitted political appointees to stifle FOIA responses in a process that “reeks of a Nixonian enemies list,” according to House Oversight and Government Reform Committee chairman Darrell Issa (R-Cal.) Under Obama, the Transportation Security Administration, part of DHS, became far more intrusive and abusive. TSA launched “enhanced patdowns” that, as USA Today noted, “require screeners to touch passengers’ breasts and genitals.” Millions of butts and boobs have been squeezed but no terrorists have been caught. *(Not even the one this past week who shot fellow travelers after they had landed in Florida) TSA conceals almost all information over its groping with a “sensitive security information” FOIA designation that justifies perpetual secrecy. Congress has been utterly feckless at exposing the excuses behind TSA abuses. Ending TSA coverups and reining in the agency would create a bounty of early good will for the Trump administration. (TSA is foot-dragging on a FOIA request I filed in 2015 to see the agency’s files on me.)
Similar coverups and rascality permeated a number of areas of domestic policy. The Obama administration endlessly revised the Affordable Care Act – often based on closed-door calculations that could not have survived sunlight. For instance, a vanload of senior IRS financial managers were summoned in 2014 to the Old Executive Office Building and only permitted a peek at a secret Office of Management and Budget memo explaining why the Obama administration was entitled to spend $4 billion on subsidies for consumer health insurance. As the New York Times reported last year, the IRS officials “were told they could read it but could not take notes or make copies. The O.M.B. officials left the room to allow their visitors a moment to absorb the document, and then returned to answer a few questions.” The Obama administration acted as if its rationales for spending tax dollars deserved the same level of secrecy as a handy-dandy guide to building nuclear warheads. Federal judge Rosemary Collyer recently slammed the administration’s Obamacare consumer subsidies as unconstitutional.
Recent polls show that fewer than 20% of Americans now trust the federal government. As Attorney General Ramsey Clark warned in 1968, “Nothing so diminishes democracy as secrecy.” Regardless of the policies that Trump pursues, it would be a booster shot for democracy for Americans to learn the back story of the Obama era.