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 Guantánamo are a mixed bag. Although they commit the nation to the closing of Guantánamo, 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 (Guantánamo 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.