There are many things unprecedented about the incoming Trump presidency, not the least of which being the fact that the United States has never before been led by a billionaire with business interests spanning the globe. Only time will tell how Donald Trump ultimately ends up balancing his global business empire with running the U.S. government – but so far it is not looking promising.
In fact, as Richard Painter, former ethics lawyer in the George W. Bush administration, has pointed out, he may be in violation of the U.S. Constitution’s emoluments clause on day one of his presidency. This clause is one of the most critical conflict of interest provisions for all U.S. government officials. Basically, it is intended to ensure that nobody holding a position of trust with the United States government can receive payments from foreign governments, whether gifts or a salary or profits.
As Painter explained recently on Democracy Now:
If you have somebody who’s making profits from dealing with foreign governments or companies controlled by foreign governments, that person must dispense with those profits, cannot receive that money, while holding any position of trust with the United States government. That applies to every U.S. government employee, including the president. And so, what this means is that, for Donald Trump, if he’s going to hold onto these business enterprises, which present a whole range of other conflict of interest problems, to satisfy the Constitution, at a bare minimum, what he’s going to have to do is get the foreign government money and money from foreign government-controlled corporations out of his business enterprise. And this includes foreign diplomats staying at the hotels at government expense, foreign governments having big parties in his hotels and canceling reservations at the Four Seasons, going over to the Trump Hotel, to curry favor. All of that is unconstitutional.
Trump has responded to these criticisms by assuring the public that he would donate hotel profits from foreign governments to the United States Treasury and let his children manage all operations. This however isn’t enough to keep him on the right side of the Constitution, as law professor Erwin Chemerinsky explains:
In a word, Trump’s proposed solutions are laughable. So what if he donates “profits” from foreign governments to the United States Treasury? All he has to do is accept money from a foreign government and he’s already in violation of the emoluments clause – it doesn’t matter whether it constitutes a profit, or where the money ultimately ends up.
Focusing on profits, moreover, ignores the countless ways that his businesses can benefit from foreign governments that would never show up on a balance sheet. For example, it was widely reported that Trump lobbied a British political ally to oppose a wind farm project because it might ruin the view from his golf course in Aberdeen, Scotland.
Besides, Trump on Wednesday again refused to reveal his tax returns and declared that the American people do not care about them. A pledge to turn over profits is meaningless without detailed accounting.
While his global business holdings may render his conduct as president unconstitutional, his incoming administration’s nepotism and conflicts of interests also pose serious challenges to international norms, and may render the United States in violation of the United Nations Convention against Corruption. As a state party to this convention, the United States has agreed to prevent conflicts of interest and corruption – including through “revolving-door practices,” such as placing corporate chieftains in charge of government regulatory agencies.
In particular, according to the convention:
Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.
Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. …
Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.
The United States has long flouted these international obligations by allowing the corporate-government revolving door to swing freely and lucratively, but the violations of international norms will likely reach extraordinary new levels under Trump.
The advocacy group Transparency International, for one, is raising concerns that the practices that Trump is pursuing are exactly what “leaders in highly corrupt countries do.” As the organization recently tweeted out, “#Trump appointing his son-in-law as senior adviser looks a lot like #NEPOTISM to us!”
The group produced a video driving the point home in dramatic fashion:
Another Transparency International video outlines the conflicts of interest of his top cabinet picks and the likely corruption that will ensue:
While there is nothing new about conflicts of interest and corruption in the U.S. government (as reported by Compliance Campaign among others for years) the graft will likely dramatically worsen under Trump. In the past, the corruption has always been obscured by a veneer of legitimacy that masks the profiteering by the oligarchy running the government, but that mask is about to be removed.
But with the sleaze, fraud and vice about to be unleashed on the world, the United States may become more internationally isolated, possibly hastening the end of U.S. hegemony around the world. This might not ultimately be such a bad thing, as opening the global system to a more multilateral balance of power could end up being a net positive for the world, and U.S. isolation could help bring this about.
President Barack Obama’s human rights record is under criticism once again as he prepares to step down after eight years leading the United States government. His record has been a major disappointment to many in the human rights community, who now genuinely worry how much worse U.S. policies will become under President Donald J. Trump.
As this blog has documented since 2011, the U.S. government’s human rights record has been dismal under Obama, with troubling policies including his lack of prosecutions of torturers – effectively institutionalizing a system of legal impunity for war crimes – his utter failure to follow through on closing the travesty of justice known as Guantanamo Bay, waging a “war on whistleblowers” and suppressing freedom of information, codifying illegal policies of extrajudicial assassinations, expanding mass surveillance programs in violation of individual privacy, and failing to take effective action to ensure accountability for a nationwide epidemic of police brutality.
In terms of promoting fundamental freedoms abroad, his administration has “treated human rights as a secondary interest – nice to support when the cost was not too high, but nothing like a top priority,” according to Human Rights Watch’s Kenneth Roth.
In a recent article for Foreign Policy, Roth writes:
Obama took office with great promise, announcing on his second day that he would stop CIA torture immediately and close the military prison at Guantánamo Bay, Cuba, within a year. By all accounts, the torture did stop. But Obama has steadfastly refused to prosecute those responsible or even to allow the release of much more than the summary of a comprehensive Senate Intelligence Committee report that documented it. As a result, rather than reaffirming the criminality of torture, Obama leaves office sending the lingering message that, should future policymakers resort to it, prosecution is unlikely. Given Trump’s campaign rhetoric about reinstating waterboarding (“or worse”), this is hardly an academic point, even considering the opposition of his nominee for defense secretary.
With respect to surveillance, Roth notes that “Obama seems to have continued and expanded programs begun by George W. Bush that lead to massive invasions of privacy.” When whistleblower Edward Snowden alerted the public to these programs, Obama supported legislation to limit the National Security Agency’s ability to collect phone records in bulk under one program, but “most of the mass privacy violations that Snowden disclosed remain unaddressed,” Roth notes.
When it comes to closing Guantanamo, Roth says the president’s efforts have been halfhearted:
Early in his tenure, he moved slowly, enabling Congress to adopt legislation — which he refused to veto — imposing various obstacles to transferring detainees overseas and barring their transfer to the United States even for trial. Facing political resistance, he reversed early plans to try the accused 9/11 plotters in a federal district court in New York, where their trials would long ago have been completed. Instead, the suspects were placed before Guantánamo’s military commissions — made-from-scratch tribunals replete with procedural problems. Seemingly designed to avoid public revelation of the details of the suspects’ torture, the commissions have made virtually no progress toward actual trials, which will not begin until long after Obama leaves office, if ever.
Roth notes that Obama has slowly reduced the number of prisoners held at Guantanamo by transferring many abroad, but “his insistence on holding some two dozen detainees indefinitely without charge makes it easier for Trump to repopulate Guantánamo, as he has threatened.”
When it comes to Guantanamo, Amnesty International is imploring Obama to do whatever he can in his last days in office to close the legal abomination before Trump – who has threatened to repopulate the prison and reinstate a torture regime – takes over as president on January 20. In an open letter to Obama, Amnesty International USA Executive Director Margaret Huang begs the president, “Don’t Leave Guantánamo to Trump.”
“Dear President Obama,” she writes:
On behalf of Amnesty International’s 1.2 million supporters in the United States, I write to make a final plea that you use all the powers of your office to close the detention camp at Guantánamo Bay. We are gravely concerned that if you fail to do so, President-elect Trump may attempt to bring dozens or even hundreds of people there, to be held in unlawful detention for decades and possibly subjected to torture and other forms of cruel treatment.
Despite your positive actions to date, your legacy will include failing to cure this corruption of our country’s ideals of justice and fairness. You will leave behind Guantánamo as a system of injustice that—having survived for 15 years, two political parties and four presidential terms of office—may remain open for the foreseeable future.
Our concern is heightened by the sharp rise in anti-Muslim and anti-immigrant rhetoric during the election. Proposals for large-scale detention without charge, which once seemed inconceivable, are now on the table as options your successor may pursue. Guantánamo, with its shameful tradition of secrecy and insularity from legal process, would be all too convenient a location for mass imprisonment without charge, returning the United States to one of its grimmest chapters.
“It is past time to shut down the detention facility at Guantánamo,” you said recently at MacDill Air Base, and not for the first time. You emphasized that Congress would be “judged harshly by history” due to restrictions it placed on your ability to transfer detainees. However, despite your concerted efforts, it is your presidency that will be judged harshly — by history, the international community and human rights supporters across the United States and the rest of the world — if you fail to take all possible measures to transfer those remaining out of Guantánamo.
Your actions now will impact this country’s decisions on detention without charge, torture and human rights for decades to come by informing the way young people understand the injustice of Guantánamo. People under the age of 25 have spent all or much of their lives with Guantánamo open. Most are too young to remember the photos of torture at Abu Ghraib, or of men at Camp X-Ray kneeling next to their cages. They do not know the collective shock and moral outrage that millions of Americans felt then, which led political figures from Colin Powell to John McCain to call for the closure of Guantánamo. Through your actions now, you can ensure new generations learn this history—and do not repeat it.
We also urge your administration, in closing Guantánamo, to abandon the military commissions. These ill-conceived tribunals simultaneously fail to respect human rights principles or achieve justice. To be sure, anyone responsible for the crimes against humanity committed on September 11, 2001 should be brought to justice in fair trials. Guantánamo and the military commissions have not—and cannot—provide that justice. The 15th anniversary of the 9/11 attacks recently passed, and those who lost loved ones in the attacks have a right to see justice in their lifetime. However, not only do the military commission trials seem unlikely to begin—much less conclude—for years to come, when they do take place they will fail to meet international fair trial standards.
You began your presidency with an executive order to end the Guantánamo detentions and to close the detention camp there. We urge you to end it with bold action to realize your promise.
The human rights group urges supporters to send messages to Obama urging him to close this travesty of justice once and for all, and to prioritize other human rights matters in the waning days of his presidency.
It is not clear, however, how much stock Obama places in the concerns of the human rights community. He spoke rather dismissively of “activist organizations” in a recent interview with The Atlantic, in which he defended his drone assassination program, which has killed hundreds of innocent people including U.S. citizens.
“I think right now we probably have the balance about right,” he told The Atlantic, referring to the ratio of killed terrorists and innocent civilians. “Now, you wouldn’t know that if you talked to Human Rights Watch or Amnesty International or some of the international activist organizations.”
He further asserted that “the internal reforms we put in place had less to do with what the left or Human Rights Watch or Amnesty International or other organizations were saying and had more to do with me looking at sort of the way in which the number of drone strikes was going up and the routineness with which, early in my presidency, you were seeing both DOD and CIA and our intelligence teams think about this.”
It troubled him, he said, because the drone strikes could enable “a president who can carry on perpetual wars all over the world, and a lot of them covert, without any accountability or democratic debate.” Of course, this is exactly what Obama has done, as has been repeatedly pointed out.
As Naureen Shah of Amnesty International told The Intercept last year, “What’s so interesting is that President Obama acknowledges this problem – that future presidents will be empowered to kill globally, and in secret. What he doesn’t acknowledge is how much of a role his administration had in making that a bizarre normal.”
Another legacy that Obama is leaving behind is torture impunity, which he has instituted by failing to launch prosecutions of gross human rights violations during the Bush administration. By shielding torturers from criminal justice, Obama has done more than any other president in history in establishing torture as little more than a “policy option” for presidents to utilize or not depending on the political whims of the day.
To prevent torture from being reinstituted by the incoming Trump administration, the National Religious Campaign Against Torture is calling on Obama to release in full the Senate’s torture report and force “appropriate officials” to read it in order to ensure that they “learn from the past.” Although White House Counsel Neil Eggleston recently announced that Obama will archive one copy of the torture report, it will remain classified for at least 12 years. “At this time, we are not pursuing declassification of the full Study,” he wrote recently in a letter to Sen. Feinstein.
In an action alert, the online advocacy group Roots Action is urging supporters to sign a petition to President Obama urging him to release the full report.
Obama is also being urged by a range of organizations to free the U.S. government’s political prisoners, including Chelsea Manning, Jeffrey Sterling and Leonard Peltier. For more on those cases, click here.