President Obama's repudiation of the Bush administration's keystone
counterterrorism policies on detention, torture and blanket
surveillance has been neither consistent nor complete. To the contrary,
the new administration's actions and statements in its first week in
office hint at a clear ordering of priorities when it comes to rolling
back its predecessor's most troubling decisions. While opponents of
torture have cause for celebration, those worried about excessive
electronic surveillance should be especially concerned.
Evidence of the new president's views on key national security issues
emerged in four
executive orders issued on January 22 concerning torture and
detention issues. Obama's selection of Eric Holder as attorney general,
and Holder's ensuing confirmation hearings, cast new light on where
those policies will go. Furthermore, the administration will soon be
forced to put more cards on the table because of pending litigation.
Fast-approaching filing deadlines will force the new attorney general,
once confirmed, to determine whether or not to sustain Bush
administration positions.
The Obama White House's priority so far has been torture, where it has
made a significant and substantive pivot. This was followed by subtle,
yet still important, changes on detention policy. By contrast, the early
signs are that Obama will stick with positions on privacy and electronic
surveillance adopted by the Bush administration in its final
years.
Start with torture. Emblematic of the Bush administration's dogma that
force alone could resolve national security problems and that laws
limiting force should be shunted aside was the Bush-Cheney commitment to
torture, which endured until their last days in office.
One of Obama's four executive orders revokes all Bush-era executive
instructions on interrogations and warns against any reliance on
legal opinions issued by Bush administration lawyers. It compels
uniform compliance, throughout the government, with a set of tactics limited
and defined by a 2006 Army Field Manual, which, as I have argued,
is a necessary benchmark.
As important as Obama's new ban on torture is, the new and unequivocal
prohibition on "cruel treatment," "outrages upon personal dignity" and
"humiliating and degrading treatment," all of which are forbidden by
Common Article 3 of the Geneva Conventions,
is also critical. An important strategy during the Bush administration
was to insist that it did not torture, even as it found ways to
undermine these other
important rules for lesser forms of coercive conduct. By eliminating
any legal gray area, the Obama administration has dramatically reduced
the likelihood of any interrogation slipping into coercion.
Yet while Obama's rejection of torture is more absolute that his
position on other civil liberties issues, it is not without caveats and
ambiguities.
As a threshold matter, it is unclear whether the interrogation order
covers the entire universe of detainees. It applies to "individuals
detained in any armed conflicts." However, another executive order
envisions detention operations occurring in both
"armed conflict" and "counterterrorism operations." These reforms thereby leave a
loophole--"counterterrorism operations"--in which the new anti-torture
regime might not apply.
Perhaps this loophole is unintentional. But given the history of the
past eight years, any loophole is deeply problematic.
For advocates of a comprehensive reckoning with the previous
administration's possibly criminal acts, Obama's executive order is bad
news: its repudiation of past Justice Departments for future acts is an
implicit concession that such reliance in the past was reasonable, and
hence not amenable to prosecution--a
position Attorney General Eric Holder may apparently have
echoed in some form in private discussions with Senate Republicans.
Moreover, Obama's January 22 order establishes a "special interagency
task force" to review interrogation measures, possibly to recommend the
renewal of certain interrogation measures. While I would hope this could be a
device for Obama to assemble an expert consensus that torture is not
effective, thus shielding himself from criticism an absolute ban on
torture would surely provoke, one cannot be sure until the task force's
results are out.
If the news on torture is an almost unalloyed good, the January 22 orders on detention and
Guantanamo are a mixed bag. Although
they commit the nation to the closing of Guantanamo, the orders do not
free any of the known innocent and establish a special
"interagency review" to deliberate on detention policy. Unlike his views on
interrogation policy, Obama's approach to detention remains a work in
progress. The major question of whether he will resist pressure to
create some new kind of
preventive detention (Guantanamo Lite?) is something
that still needs to be resolved.
Notable by its absence from the initial executive orders, however, was
any change in electronic surveillance policy. Indeed, initial signals
suggest more continuity than change on this front. Not only did Senator
Obama vote for the FISA Amendments Act of
2008, which stripped away the individualized warrant rule for a significant slice of
surveillance, but Holder has expressed his support for the
USA Patriot Act, with minor reservations about the degree of
oversight. In his confirmation hearings, he expressed seemingly
unreserved support for those expanded powers under FISA.
Yet uncertainty cannot persist for long. The government will soon be forced
to file a reply in a lawsuit in the Northern District of California
challenging the use of warrantless wiretapping to build a case against the Islamic
charity Al-Haramain. The new attorney general will have to decide
whether to reject or continue Michael Mukasey's defense of the
warrantless wiretapping program.
Moreover, other pending cases challenge, respectively, the immunity draped
over the telecom giants for their involvement in Bush's illegal
terrorist-surveillance program and the expanded
surveillance power granted by Congress in June 2008. Admiral Dennis
Blair, who is Obama's director of national intelligence, has already
indicated that he intends to stand by the concept of the telecoms'
immunity.
Of course, the last word on that matter lies with the attorney general,
who must consider whether the retroactive-immunity provision is even
constitutional. On the 2008 FISA law, however, the odds are that Obama will
stand behind it in the courts.
Torture, detention and surveillance: Obama's priority of bodily
integrity over the less intrusive harms involved in electronic surveillance is not
indefensible. But it creates a difficult choice for progressives:
Should they provide their support for Obama as he comes under
fire from the right on interrogation policy? Or should they lean
on him to shift on surveillance and privacy issues?
In the end, criticism, rather than praise, is more valuable. The new
administration, after all, can point to the flak it gets from the
progressive community when attacked from the right, and use such
criticism as evidence that it is charting a moderate course. Hence,
pressure not only serves the useful end of holding the administration's
feet to the fire; it also provides a useful form of political cover.
That means keeping the pressure on--not only with respect to
surveillance, where we will see the least immediate change, but also on
the issues of both detention and torture.
