Last fall, I attempted to get Donald Trump to answer some questions about his understanding of executive power. Like most candidates this cycle, he declined to answer my questions. That was particularly notable given his vow to bring back torture:
DONALD J. TRUMP has declared that as president, he would bring back waterboarding “and more” as options for interrogating terrorism suspects. But anti-torture laws forbid that. Does he believe the Constitution would empower him, as commander in chief, to override those limits? …
As the Iowa caucuses and New Hampshire primary approach, voters appear unlikely to know the answers to such questions. Both Mr. Trump and Mrs. Clinton — the leading candidates for the Republican and Democratic nominations — declined to answer questions submitted by The New York Times about their understanding of the scope and limits of the powers they would wield if elected.
Trump has continued to raise eyebrows in this area, including with his vow to commit another war crime: ordering the military to kill the children and other family members of terrorists in reprisal strikes. General Michael Hayden, the former NSA and CIA director* has said that the armed forces would refuse to obey such an order. At the Fox News debate last night, Bret Baier asked about the idea that the military would refuse to obey his “illegal” orders, but Trump insisted they would do as he said.
They won’t refuse. They’re not going to refuse me. Believe me. … I’m a leader. I’m a leader. I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it. That’s what leadership is all about.
Today, the Trump campaign released a statement in which he seemed to back off:
I feel very, very strongly about the need to attack and kill those terrorists who attack and kill our people. I know people who died on 9/11. I will never forget those events. I will use every legal power that I have to stop these terrorist enemies. I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters. I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.
I think it’s important to note that, for reasons unrelated to Trump, there may still be some wiggle room lurking here. During the Bush-Cheney administration, government lawyers repeatedly made the argument that the president, when acting as commander-in-chief, has constitutional power to lawfully disregard laws and treaties — including a torture ban and the international laws of war. If you take that view, then the president has a “legal power” to fight terrorist enemies in a way that contradicts a statute or a treaty without it meaning that they are disobeying it or violating it exactly — that is to say, those are binding rules under normal circumstances, but can be, er, trumped, in which case they are no longer binding. By acting on those theories, the Bush administration converted them into historical precedents that will be available to all future presidents to cite, no matter who they may turn out to be and what they may choose to do with those powers.
This was the thesis of my first book, Takeover, which concluded:
The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history — not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Sooner or later, there will always be another urgent need.
By the way, I think Trump’s overt argument that torture a) works and b) is justified in the war on terrorism, without hiding behind euphemisms, is perversely salutary. It’s yet another example of him saying what a certain group of people clearly think but won’t say out loud or directly. He’s lifting a veil and enabling us to get more directly at what the real issues are.
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* I’m reading Hayden’s new book, Playing to the Edge: American Intelligence in the Age of Terror, which is interesting so far. Perhaps because he had to submit the manuscript to the pre-publication review board to avoid discussing classified information, there are places where I think its readers would not understand what he is dancing around without also having read the first surveillance chapter in Power Wars. Of course, I would say that, wouldn’t I!