To Combat Trump's Attacks on Democracy, We Must Understand Precedents Set by ObamaSaturday, August 12, 2017 By Zak Witus, Truthout | Op-Ed
Seven months into the Trump presidency, many people still deny how some of Donald Trump's most regressive and harmful policies directly continue the legacy of Barack Obama. Yes, Trump is demonstrably worse than Obama. The nasty rhetoric that Trump spews from his bully pulpit does real harm to marginalized communities, especially Muslims and immigrants. Under Trump's watch, US airstrikes have killed innocent civilians at a much higher rate than under Obama, with horrifying numbers of people killed in Syria and Iraq. Meanwhile Stephen Bannon is overseeing the "destruction of the administrative state," including the attempted rollback of environmental regulations and federal rules protecting internet freedom; and Attorney General Jeff Sessions has rekindled the racist, classist "war on drugs," reversing Obama's policy of prosecutorial leniency for low-level drug offenders. And the Republicans' attempts to gut Medicaid and sabotage Obamacare could do unconscionable violence to millions of Americans.
Nonetheless, we do ourselves a disservice by fixating solely on the overt discontinuities while ignoring the major continuities between the two administrations. Even Bernie Sanders, the champion of the democratic socialist left in this country, fails to adequately acknowledge that Obama committed many of the offenses that he now accuses Trump of committing. In a recent speech at the People's Summit in Chicago, Sanders condemned Trump for his major constitutional violations and disregard for democracy. He spoke about Trump's "unprecedented attack against the media," calling it an effort to "undermine respect for dissent and free press." Sanders criticized Trump's outlook and treatment toward the judiciary, charging the president with "seek[ing] to diminish the separation of powers that our Constitution outlined." And Sanders lamented the fact that Trump appears "to be more comfortable with autocrats and authoritarian politicians than with leaders of democratic nations." But has he (and have we) honestly reckoned with how Obama was guilty of the same kinds of undemocratic acts -- that Obama undermined the free press, violated the separation of powers, and aided and abetted dictatorships and war criminals abroad?
Everyone who opposes Trump agrees that he treats the press as his adversary. The Trump administration on numerous occasions has explicitly branded the news media "the enemy of the people." In recent weeks, the White House has banned TV cameras from press briefings with greater and greater frequency. Trump even singles out specific journalists that he doesn't like for bullying on Twitter. But if we really want to defend the First Amendment, the public's right to know, the free press and the right to dissent, then we have to understand how the Obama administration laid much of the groundwork for Trump’s anti-free speech agenda.
One person to ask about Obama’s disappointing record on free speech is James Risen, the two-time Pulitzer Prize-winning New York Times journalist who helped reveal Bush's program of warrantless wiretapping, and who the Obama administration prosecuted for seven years, threatening him with jail time. Led by Attorney General Eric Holder, the Obama Justice Department called on Risen to testify in a criminal case against one of Risen's alleged sources, former CIA agent Jeffrey Sterling, charged with leaking classified documents to Risen that Risen published in his book, State of War. But Risen refused to testify, arguing that forcing journalists to identify confidential sources infringes their ability to do their jobs. The work of journalists being instrumental in fulfilling the purposes of the First Amendment, this infringement constitutes a constitutional violation, Risen argued.
But Holder and Obama would not relent and prosecuted the case all the way up to the Supreme Court, and the Supreme Court ruled against Risen. The Justice Department ultimately did not call on Risen to testify, as it would've effectively meant that the Obama administration was imprisoning a Pulitzer Prize-winning New York Times journalist, which would've created a major publicity scandal for the administration. Nonetheless, Obama succeeded in establishing a highly problematic precedent with the nation's top court: According to the Supreme Court, there is no such thing as journalist-source confidentiality in the way that there is doctor-patient confidentiality or lawyer-client privileges. Hence, according to our country's highest court, journalists' communications with government whistleblowers are not, under the First Amendment, protected from state surveillance.
Six weeks after Donald Trump's election and on the eve of the New Year, Risen published a prescient op-ed in The New York Times, headlined, "If Donald Trump Targets Journalists, Thank Obama." Risen wrote: "If Donald J. Trump decides as president to throw a whistle-blower in jail for trying to talk to a reporter, or gets the F.B.I. to spy on a journalist, he will have one man to thank for bequeathing him such expansive power: Barack Obama."
Though Risen's own story is a case in point, Obama accumulated a long and illustrious record of going after journalists and news agencies, which Risen recounts in the piece. For example, in May 2013, Obama's Justice Department informed The Associated Press that over a two-month period, it had seized records for more than 20 phone lines associated with the agency's staff. That same year, the Justice Department also seized phone records and emails between a Fox News reporter and a State Department contractor. In 2014, at the near end of his tenure as Obama's Attorney General, Eric Holder signed off on a subpoena request on a "60 Minutes" producer.
In addition to journalists, Obama has also executed an unprecedented crackdown on whistleblowers and leakers. As Risen highlights in the op-ed, the administration's signature practice for responding to leaks was to charge the leakers/whistleblowers under the 1917 Espionage Act, a vestige of World War I-era red-baiting. Obama's Justice Department prosecuted nine such cases during its eight years -- three times as many as all past administrations combined. Never mind the fact that the people who Obama was prosecuting weren't spies but government officials who talked to journalists.
Trump's actions have proved Risen's prediction to be correct. In June, Trump's Justice Department announced its first leak case, charging intelligence contractor Reality Winner with spying under the Espionage Act for leaking a highly classified document to The Intercept. The document that Winner leaked reveals a Russian intelligence cyberattack just days before the 2016 presidential election aimed at voting software and local election officials. The document is no doubt newsworthy, especially to Democrats, who have been alleging Russian interference in the election for months. Unfortunately, because of Obama's pattern of prosecution, Trump and Sessions now have a strong legal precedent for pursuing these bogus charges against Winner and other leakers. Moreover, Sessions's recently pledged to clamp down harder via subpoenas and prosecution on journalists who report on leaks, extending the problematic practices employed by Obama and Holder.
So, while Trump's attacks on the media may indeed be "unprecedented" in a sense, we have to clarify what specific actions are new to the presidency. Obama did not openly attack specific news outlets, TV anchors or reporters in the manner that Trump now does flippantly (e.g., Obama didn't tweet a video of himself beating up someone with the CNN logo on their head). But the Obama administration did search through and seize journalists' notes and records, and prosecuted journalists, whistleblowers and leakers for informing the public of the nefarious business that our government does in the shadows. The long-term damage of the Supreme Court ruling in Risen's case will potentially be felt for decades. As of now, Trump has not succeeded in undermining the free press at its foundations. But Obama may have permanently hindered the ability of journalists to do their job without fear of governmental repression.
Senator Sanders, in the aforementioned speech, channeled mainstream liberal opinion when he pointed out Trump's second nascent constitutional violation: that is, violating the separations of powers by disrespecting and demeaning the judiciary. To his point, Trump has called judges he disagrees with "so-called judges." He has made racist remarks about a judge presiding over the lawsuit against Trump University. And, as with the media, Trump appears to resent the checks that the courts impose on his authority.
But how did Obama, the constitutional law professor, regard the separation of powers in this country? In terms of civil liberties, we might also ask: How did Obama regard the constitutional right to due process?
Perhaps Obama's most flagrant violation of the Constitution occurred when he ordered the assassination of Anwar al-Awlaki. Awlaki was a US-born imam whose sermons and lectures became widely popular throughout the English-speaking Muslim world during the 1990s and 2000s. For much of his life, Awlaki opposed terrorism and violent jihad. After 9/11, President George W. Bush even called upon Awlaki to join a coalition of American imams publicly opposing terrorism. But as the "war on terror" dragged on, and with the disastrous and criminal US/UK invasion and occupation of Iraq, Awlaki became more and more radicalized, eventually calling for violent jihad against the United States. Awlaki moved to Yemen and continued sermonizing, praising groups like Al Qaeda for their bloody resistance to US hegemony in the region.
It's worth noting that praising Al Qaeda publicly is not itself a crime. In fact, it is protected free speech under the First Amendment. One can, of course, morally disagree, but as a legal matter, a president cannot legally arrest -- much less assassinate -- someone for praising Al Qaeda, ISIS or any other group, no matter how violent that group may be.
All of this notwithstanding, in a one-month span in 2011, Obama ordered a series of drone strikes that killed not only Awlaki, but also Awlaki's 16-year-old son Abdulrahman, who was, by all accounts, totally innocent.
Awlaki had links to Al Qaeda, expressed despicable views and glorified violence. But Awlaki was nonetheless an American citizen, and as such, he was legally entitled to due process, including the right to a trial in which he could respond to evidence against him. With his assassination of Awlaki, Obama assumed the role of judge, jury and executioner. Despite the president's assertion that "Awlaki was the leader of external operations for Al Qaeda in the Arabian Peninsula," and "In that role, [Awlaki] took the lead in planning and directing efforts to murder innocent Americans," his administration steadfastly refused to make its evidence for these claims public.
So, what precedent does the killing of Awlaki set for President Trump? If President Obama killed multiple US citizens with impunity, what should we fear from President Trump, who is, by all signs, more belligerent and indifferent to the lives of Muslims? We know that Trump is already continuing (and expanding) Obama's terroristic drone wars in the Middle East. Hence Trump has already conferred upon himself the same authority as judge, jury and executioner that Obama did when it came to foreigners and, in the Awlaki family's case, US citizens. But will Trump go so far as to violate the constitutional rights of his own citizens as Obama did? This remains to be seen.
Lastly, there is Trump's affinity for dictators and his support for their repressive regimes abroad. Trump has openly embraced authoritarian rulers such as President Recep Tayyip Erdoğan of Turkey and Prime Minister Abdel Fattah el-Sisi of Egypt, both of whom have visited the White House and shook hands with the president in the Oval Office. But that's just it: What is criticized is the openness of the embrace. Where were these critics when Obama more quietly aided and abetted repressive regimes the world over, particularly in the Middle East?
Take an especially horrifying example from the final years of the Obama presidency, the period that many of his supporters celebrate as the highest point of his tenure. In the spring of 2015, Saudi Arabia, unprovoked, began bombing Yemen, supposedly targeting the Houthi rebels, which Saudi Arabia and the United States claim to be Iranian proxies. The Saudi bombing has continued up to this day with more than 10,000 civilians dead directly at the hands of the Saudis. Using US weapons and fighter jets, Saudi Arabia has committed serious war crimes according to human rights groups, hence making the US complicit in war crimes. Due to the devastation of Yemen's health, water and sanitation systems by Saudi bombing, a cholera outbreak has killed more than 1,600 people, and the Red Cross reports that there are over 300,000 more suspected cases. The UN is warning that about 19 million people are on the brink of famine. Meanwhile, the Saudis maintain their vicious, total blockade of the country, which depends on imports for 90 percent of its food.
There can be no serious debate over the fact that the US has given Saudi Arabia support that makes it possible for it to starve and slaughter the people of Yemen in the face of the entire world. In the course of his presidency, Barack Obama approved an estimated $115 billion in arms sales to the Saudis, including the sale of cluster munitions, which are considered illegal by most countries on the planet. And Obama continued to approve weapons sales to Saudi Arabia even after its act of open aggression in Yemen. The flow of arms, the refueling of Saudi jets and the sharing of intelligence continued over the course of the next 18 months as the civilian death toll mounted and human rights groups were alleging more and more war crimes committed by the Saudis.
All of us on the left have heard how openly the Trump administration has disregarded human rights concerns. Trump literally did the war dance with the Saudi leadership. Obama, in contrast, made the politically correct rhetorical flourishes. Hence, former White House press secretary Josh Earnest was quite correct when he said, apropos his blocking some weapon sales to Saudi Arabia, that Obama had "long expressed some very significant concerns about the high rate of civilian casualties" in the Yemeni conflict. Yes, in fact Obama had expressed concerns, just as he expressed opposition to Israeli settlement development in the West Bank, and promised us that he would only authorize drone strikes when there was a "near certainty" of avoiding civilian casualties. Contrary to this rhetoric, though, none of the above statements turned out to be true in fact: The billions of dollars of military aid continued to flow to Israel even though Israel, like Saudi Arabia, is a known violator of international law; and US drone strikes continued to take the lives of scores of innocent civilians.
We cannot exonerate Obama for the same crimes that we upbraid Trump for committing. We must recognize Obama's major infringement on the freedom of the press, denial of citizens' right to due process, and alliances with dictators and waging of endless war -- crimes that Trump is already (or will likely soon be) guilty of as well. Forgetting and/or forgiving these crimes of the past invites their reincarnation in the present, and that's not something we can afford.