The executive orders President Barack Obama signed on Thursday are the beginning of a long battle by human rights defenders to reign in an executive branch bloated with power. In conducting his War on Terror, George W. Bush established a shadow network of spies and covert detention sites, one governed by its own secret laws promulgated largely through confidential memos. The prison at Guantanamo Bay was only the most visible part of this network. To thoroughly dismantle this terrible executive inheritance, Obama’s legal team in the Department of Justice will need to do much more. And even though the Obama administration has taken the initiative here, it is unlikely that substantive reforms will occur without pressure from Congress.
The person most significant in bringing our wayward executive branch under the rule of law will be incoming Attorney General Eric Holder. Alongside Dawn Johsen, the incoming head of the Office of Legal Counsel, and Obama himself, the heap of memos, executive orders, and other documents authorizing Bush’s excesses will be his to confront. Holder will decide, for example, if Gitmo’s closure becomes more than a symbolic victory. If his office declares that the enemy combatants detained by the Bush administration were entitled to protection under the Geneva Conventions, Obama’s defense and justice departments will have to radically revise the Bush strategy for holding and prosecuting enemy combatants. But that’s unlikely. Obama’s Department of Justice hasn’t yet decided how to go about prosecuting these prisoners, as evidenced in their request that all habeus corpus hearings be delayed while a system is put into place. As to whether the detentions were illegal in the first place, Holder has already stated that he does not believe the prisoners in Gitmo were entitled to Geneva protections to begin with. Fighting to have Geneva applied to Gitmo’s enemy combatants won’t win Obama any further political favor, but having to recognize stricter due process standards for enemy detainees will create headaches for the Department of Justice later on—principally, by forcing the administration to accord enemy combatants the legal privileges and rights enjoyed by prisoners of war.
It’s also up to Holder to decide what happens to the Gitmo detainees. One of the options left open by Obama’s order is that prisoners be “transferred to another United States detention facility.” The intense scrutiny that Gitmo has been subject to has prompted officials to release prisoners and permanently close sections of the prison, but the Bagram Air Force base in Afghanistan has only seen more prisoners extradited. For suspects imprisoned there, access and oversight are even scanter than they would have been in Guantanamo Bay.
The order also specifies that untried detainees may be “transferred to a third country,” as clear an indicator as any that Obama and Holder intend to continue the controversial renditions program. This is the same program by which the Bush administration oversaw extradition of suspected terrorists: to have their spines extended in Syria, to be electrocuted in Egypt, to be executed in Pakistan. While this program ballooned under Bush, it began quietly during the Clinton administration, and it’s likely that Holder and Obama will continue this program. But worse than that, it’s going to be almost impossible for anyone to find out whether they do continue the program or not. In this respect, the extent to which Obama’s order to end torture makes a practical difference in the way prisoners are interrogated hinges on Holder’s future decisions.
If there’s a bright spot in all of this, it’s Johnsen’s appointment to the OLC. Her recent work has thoughtfully confronted the excesses of the “unitary executive” argued for by Bush’s legal counsel and, more importantly, has gestured at a way forward. In 2007 she published the article “Faithfully Executing the Laws: Internal Legal Constraints on Executive Power,” in which she argued that “enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance” were both illegal and unwise. More importantly, she spent time arguing for a set of constraints that could inhibit future abuses from being authorized in the same fashion. Some on the left have already hailed Johnsen as the “anti-Yoo,” referring to the head of the OLC under Bush. John Yoo’s infamous “torture memos” provided the justifications for the Bush administration’s most egregious crimes. But even an anti-Yoo won’t be able to undo all of his handiwork.
Among those who will be most disappointed with Obama’s ascendancy are those who are hoping to see the lawyers and executive officials responsible for the Bush excesses punished. The problems with trying to hold justice, defense, and White House officials accountable were articulated with disturbing clarity in Jane Myer’s The Dark Side, last year’s unsettling investigation of the War on Terror. What Myers makes clear in her analysis is that the question of whether Obama’s administration wants—or is obligated—to prosecute those who oversaw torture and illegal spying exists quite apart from the question of whether or not he can do so with any success. Even if Obama wanted to take a strict, prosecutorial stance, the fact that torture and detention took place with the blessing of the OLC essentially immunizes the perpetrators. A Supreme Court decision establishing the unconstitutionality of Yoo’s interpretations would not place them in any further legal jeopardy, so long as they can claim to have made a good faith effort to follow the OLC’s advice. That is, even if Yoo’s “laws” turn out to have been illegal, it’s unlikely that anyone can be prosecuted for following them.
A better approach, which Jack Balkin of Yale Law School has advocated, would use congressional inquiries to gather information on what exactly occurred inside the Department of Justice, the C.I.A., and the Department of Defense, then develop reforms and improved constraints on that basis. It’s an approach that’s more forward-looking in its pursuit of accountability, but it’s also more realistic for it. Trying to prosecute executives who have a near-airtight defense would yield few results, and much of the information the public would hope to gain would be confidential or inadmissible.
Holder and Johnsen’s best chance to do good—and allay a lot of justified fears—is to work publicly with congressional leaders on the development of new rules to govern, for example, the outlawing of cruel, inhuman, and degrading interrogation tactics, or the future use of FISA-approved surveillance powers. In terms of jurisdiction and oversight, though, Congress can do little if Holder and Johnsen don’t take the initiative.
Congress can step forward in revising the most extreme sections of the Patriot Act and the Military Commissions Act. The former bill became infamous in the aftermath of 9/11 for drastically increasing the federal government’s ability to gather information from telephone and email databases, to detain immigrants and terror suspects, and to widen the scope of executive power within the U.S. But it’s the latter law that truly demands attention. Parts of the Military Commissions Act, passed in 2006, utterly removed the ability of designated terror suspects to contest their detentions under habeas corpus, allowing them to be kept in an endless legal hell for years at a time. Other sections of the bill allow coerced confessions to be admitted in trials, so that admissions literally beaten out of suspects can be used against them. This kind of barbarism has stayed on the books for too long, and Congress should act swiftly to amend those bills without cue or coordination from the Department of Justice.
This blog entry was originally published on Slant Magazine on the date above.