Even the extreme legal theories of the George W Bush administration were mild compared to some of the "compromise" positions Obama's DoJ argued for, and now Donald J Trump gets to use those positions to further its own terrifying agenda of mass deportations, reprisals against the press, torture and assassination, and surveillance based on religious affiliation or ethnic origin.
When it came to things like closing Guantanamo, Obama argued for limits on establishing offshore black-sites and military tribunals, but refused to shut the door on them. So maybe Trump won't be able to use Gitmo to house the people he has kidnapped by his CIA, but he can use the legal authority that Obama argued for to set up lots of other Guantanamos wherever he likes.
Likewise torture: Obama decided that it was better to move and and bury the CIA torture report, and had his DoJ block any attempt to have torture declared illegal, which would have given people opposing Trump's torture agenda with a potent legal weapon that is now unavailable to them.
Obama argued that the president should be able to create kill lists of Americans and foreigners who could be assassinated with impunity, and argued against even judicial review of these lists.
Then there's Obama's war on whistleblowers — his administration invoked federal law against more whistleblowers than all the other presidents in US history, combined — and his aggressive assertion that journalists have no right to protect their confidential sources. These will be of enormous use to the Trump presidency, which has already promised to use executive powers to persecute hostile journalists who try to hold it to account.
Add to this the power of the president to declare war without Congressional approval and a host of other policies that give the president the power to proceed without checks on his authority and whims.
The litany of authoritarian powers that Obama asserted, and that his supporters excused (because they trusted their man not to abuse them) is more proof that the Democratic party needs to be remade as a force for progressive change, and not as an arm of the establishment. We have two years until the midterms, two years to come up with a slate of progressives who'll fight tirelessly for a rule of law, not a rule of man, especially given the man who's about to start making the rules.
But the Obama administration also successfully fought in court to establish that judges would not review the legality of such killing operations, even if an American citizen was the target. Mr. Trump — who has said he would "bomb the hell out of ISIS," beyond what Mr. Obama is doing, and go after civilian relatives of terrorists, prevailing over any military commanders who balked — could scrap the internal limits while invoking those precedents to shield his acts from judicial review.
Similarly, after a surge of criminal prosecutions against people who leaked secret information to the news media and bipartisan outrage at aggressive investigative tactics targeting journalists, the Obama Justice Department issued new guidelines for leak investigations intended to make it harder for investigators to subpoena reporters' testimony or phone records. It also decided not to force a reporter for The New York Times to testify in a leak trial or face prison for contempt.
But the Obama administration also successfully fought in court to establish that the First Amendment offers no protection to journalists whom the executive branch chooses to subpoena to testify against confidential sources. Mr. Trump, who has proposed changing libel laws to make it easier to sue news organizations, could abandon the Obama-era internal restraints and invoke the Obama-era court precedent to adopt more aggressive policies in leak investigations.
Harsher Security Tactics? Obama Left Door Ajar, and Donald Trump Is Knocking [Charlie Savage/New York Times]
(via Naked Capitalism)