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.