Following the victory of President-elect Donald Trump, many commentators (including yours truly) argued that his win offers a valuable opportunity to reform the executive branch. Simply imagining Trump in the White House was enough to make many people understand what we libertarians have been saying for years, namely that the presidency is way too powerful.

But instead of “tyrant-proofing” the Oval Office, President Obama decided to end his term by expanding the NSA’s ability to share the information it collects via mass surveillance. “The New York Times” reports:

In its final days, the Obama administration has expanded the power of the National Security Agency to share globally intercepted personal communications with the government’s 16 other intelligence agencies before applying privacy protections. The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws. These include collecting satellite transmissions, phone calls and emails that cross network switches abroad, and messages between people abroad that cross domestic network switches. The change means that far more officials will be searching through raw data…increasing the risk that officials will see private information about innocent people.

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As civil libertarian Conor Friedersdorf remarks of this decision over at The Atlantic, the rule change “would seem to significantly increase the chance of mischief.”

“Even if 15 of those agencies are filled with patriots who’d never dream of misusing data or metadata gathered on Americans, and who protect that data from being hacked with best practices, one agency might be corrupted by the president, or have poor information security,” he adds. “Bad actors at the top would seem to have more avenues for successful abuse, and innocents at the bottom would seem to have a higher risk of being subject to it.”

In short, instead of taking steps to rein in the executive branch — even for shallow, partisan reasons, which at this point I’d happily accept — President Obama has approved one last expansion of the federal government’s encroachment on our privacy.


As for Trump, it looks like he’s ready to pick up where Obama leaves off. Jameel Jaffer, a civil liberties litigator and author, summarizes the situation in an interview with Friedersdorf’s Atlantic colleague, Emma Green:

Green: What’s the outlook for some of these issues, in your view, with the incoming administration? Jaffer: Given the some of the statements of candidate Trump during the campaign, and given the track records of some of the people who are advising him at the highest levels, I think there are a lot of reasons to worry about how the new administration will use the powers that President Obama created or put on a relatively sound legal footing: the power to detain, the power to surveil, the power to kill. The president-elect has already made clear that he wants to use some of these powers even more aggressively: He wants to step up surveillance inside the United States, especially of Muslims. He wants to expand the war on terror. He has proposed resurrecting the torture policies. [In November, Trump told ‘The New York Times‘ that he has changed his view on this issue after consulting with his now-nominee for Secretary of Defense, the retired U.S. Marine Corps General James Mattis.] It’s difficult to know which of these promises will translate into actual policy, but there’s certainly reason to worry that these powers will be used even more aggressively and in an even less discriminating way than they’ve been used until now. Advertisement

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One thing is sure: Trump’s announcement at the end of last week that he has chosen former New York City Mayor Rudy Giuliani — who is about as far from a civil libertarian as it gets — to handle cybersecurity issues is not a good sign in my book. (Actual Giuliani quote: “Freedom is not a concept in which people can do anything they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.”)


There is still plenty of time, of course, for Congress to cut the executive branch down to its proper constitutional size. A Republican majority that actually values small government paired with a Democratic minority that just doesn’t trust Donald Trump could easily override any vetoes and end the imperial presidency.

But, if recent history is any indication of the near future, I won’t get my hopes up.