When Barack Obama becomes president in January, he will confront the controversial legal legacy of the Bush administration.
From expansive executive privilege to hard-line tactics in the war on terrorism, Obama must decide what he’ll undo and what he’ll embrace.
The stakes couldn’t be higher.
On one hand, civil libertarians and other critics of the Bush administration may feel betrayed if Obama doesn’t move aggressively to reverse legal policies that they believe have violated the Constitution and international law. On the other hand, Obama risks alienating some conservative Americans and some – but by no means all – military and intelligence officials if he seeks to hold officials accountable for those expansive policies.
These are some of the legal issues confronting him:
-How does he close the Guantanamo Bay prison in Cuba? He’s pledged to shutter it, but how quickly can he do so when it holds some detainees whom no administration would want to release?
-Obama has declared coercive interrogation methods such as waterboarding unconstitutional and illegal, but will his Justice Department investigate or prosecute Bush administration officials who ordered or condoned such techniques?
-Will the new administration press to learn the full extent of the Bush administration’s electronic eavesdropping and data-mining activities, and will it curtail or halt some of them?
-The Bush administration exerted tight control over the Justice Department by hiring more Republican-leaning political appointees and ousting those who were viewed as disloyal. Will Obama give the department more ideological independence?
Undoing some policies will take time.
With 316 conservative appointments to the federal courts during the past eight years, Obama could attempt to tilt the courts back to the center or even to the left with his nominees. He could alter the Supreme Court’s bent by replacing two or three justices who will probably retire soon.
Civil libertarians, who feel emboldened by a Democrat in the White House, tick off a long list of what they think Obama should do as soon as he takes office. Not only should Guantanamo be closed, they say, Obama should revoke the immunity for telecommunications companies that cooperated with secret eavesdropping, ban the use of secret prisons by the CIA, and investigate and perhaps prosecute administration officials for authorizing controversial interrogation methods.
Anthony D. Romero, the executive director of the American Civil Liberties Union, which has led many of the challenges to the Bush administration’s terrorism policies, said Obama could take action on most of these fronts “on day one” by issuing executive orders, such as closing Guantanamo.
“Unless he acts quickly, he runs the risk of showing the American people that their hope and optimism may have been misplaced, and reinforcing people’s deep-seated cynicism that it’s politics as usual in D.C.,” he said.
Although Obama is likely to ban waterboarding and other aggressive techniques soon after taking office, prosecuting administration officials not only would be legally challenging because legislation has granted them immunity but also would be seen by Republicans as highly divisive.