Will Obama Roll Back Bush Anti-Terror Tactics?

It wasn’t so long ago that Barack Obama saw paths around many of the civil-liberty dilemmas that President Bush faced when he launched a war on al-Qaeda around the world. The freshman Senator from Illinois believed, and often claimed, that the White House could and should have avoided the shame of Guantánamo Bay, resisted the urge to engage in torture and shunned domestic eavesdropping.

Such easy exits may be harder to come by now that Obama is preparing to take over as Commander in Chief. Over the past eight years, the Bush Administration has erected a new array of military detention camps, interrogation methods and spy programs of questionable legality. During the presidential campaign, Obama promised to dismantle much of that apparatus, arguing that the Bush Administration’s walk on the dark side had eroded freedoms at home and damaged America’s reputation abroad. But doing so will take more time and prove more complicated than some of his supporters may realize.

In some ways, it makes political sense to go slowly. Ever since 9/11, Obama’s party has been squeamish about walking point on civil liberties out of fear that Republicans would wrap such a move around their necks at election time. And so, though civil libertarians may holler, the Obama team is likely to put the emphasis on national security as it begins to explore options for undoing the policies of the Bush-Cheney era. Here’s a look at what the new President may seek to change and what he may leave in place:

Torture

Once he is sworn in, Obama could simply order a government-wide halt to waterboarding and any other questionable interrogation techniques that have been judged legal during the past eight years. The Executive Order would have to be sweeping and reach deep into the government’s darker recesses. That’s because the Bush team has written so many legal memos okaying various techniques for interrogators working at a wide range of agencies. Some of those opinions have been disclosed publicly, but an unknown number remain classified. Obama will need to direct his Attorney General to issue new legal guidance that supersedes all those legal opinions, seen or unseen, if he hopes to prevent a return to such practices in the future. Former federal prosecutor and onetime trial judge Eric Holder, Obama’s pick to lead the effort as the top man in the Justice Department, earned a reputation as a relatively moderate legal thinker when serving there as a senior official in the Clinton Administration. That concerns some civil libertarians. “If you leave these on the books, you leave a bunch of loaded guns that future Presidents and agency heads can pull out and shoot when they want to,” says Anthony Romero, executive director of the American Civil Liberties Union.

Guantánamo

Obama could fulfill his campaign pledge to close Gitmo by simply issuing an Executive Order. But that would pose the question of what to do with the 225 suspected terrorists detained there who would suddenly have no home. If brought to the U.S. for trial, they would fall under constitutional guarantees of due process, which includes the right to confront their accuser and review all evidence against them. That may not fly with top terrorism hunters, who rely on informants and classified evidence. Because some of the evidence looks to have been gathered during harsh interrogations that may now be regarded as illegal and therefore inadmissible in court, building criminal cases against some detainees may be impossible. That raises the danger of avowed terrorists walking away from U.S. custody on a technicality. “These are enormously complicated problems,” says Benjamin Wittes, a Brookings Institution fellow. “It’s very easy to say, ‘Put everybody on trial.’ But we still haven’t figured out what our trial system looks like for these terrorism cases.”

And even if Gitmo is shuttered, that still leaves the matter of those militants captured more recently in the wars in Afghanistan, Iraq and elsewhere whom Obama says he intends to more fully prosecute. Such knotty questions have led some experts to bet that while he will scale Gitmo back as quickly as possible, Obama won’t fully close it in 2009. They point out that the Bush Administration has already quietly discharged some 500 of the 700 prisoners who have been held there.

Obama may opt to release dozens of others and insist that the remaining handful of high-profile cases be heard in either federal or military courts in the U.S. Already dozens of Guantánamo cases are moving through the federal court system following a pivotal Supreme Court ruling in June, and the Bush Administration is grappling with two separate rulings from federal judges ordering the release of 22 detainees.

Renditions and Secret Prisons

There is no doubt that the murkiest corner of the shadow war on terrorism has been the CIA’s kidnapping suspected terrorists and shipping them to secret prisons around the globe–where obeying the Geneva Conventions is more an exception than the rule–a practice known as rendition. Unfortunately, some of those snatched by CIA officers were innocent. German citizen Khaled el-Masri was one such victim. El-Masri was vacationing in Macedonia in December 2003 when authorities arrested him on wrongful suspicions that his passport was fake. A tragic case of mistaken identity then played out. El-Masri has the same name as an al-Qaeda operative being hunted at the time by CIA officials, and they took custody of el-Masri in Macedonia. Operatives from the agency beat and drugged el-Masri before whisking him to a secret prison in Afghanistan known as the “Salt Pit.” Eventually el-Masri’s captors realized they had the wrong man and let him go, dumping him on a mountain road in Albania.

No one knows how many suspected terrorists have been grabbed by the agency over the past eight years. Already, the CIA has transferred at least 14 detainees from secret prisons to Guantánamo. Dozens or even hundreds of others may still be imprisoned at secret CIA facilities around the world. As many as 20 may have been victims of mistaken identity, a study by the European Parliament found. As part of a broader pledge to end torture, Obama has vowed to halt the practice of rendition. But whether Obama plans to abandon the offshore facilities where interrogations have taken place remains unclear. If he does, any detainees remaining there would probably need to be relocated–possibly to Guantánamo, where their legal status would be examined anew.

Eavesdropping

Obama may leave intact, at least at the outset, one of the most controversial elements of Bush’s war on terrorism: a secret snooping program that spies on some Americans without benefit of a court order. Shortly after 9/11, the National Security Agency began intercepting communications to and from the U.S. by suspected terrorists and confederates in their network. The White House alerted key members of Congress about the program, in part because the Administration was skipping the long-standing practice of obtaining judicial approval in advance for surveillance, as prescribed by a 1974 law. When the program became public in 2005, Justice Department officials struggled to structure it to adhere more closely to existing law, but how much it was actually changed remains unclear. Not all civil libertarians were satisfied, and Obama vowed during the campaign to end warrantless wiretapping. But he is unlikely to halt the program outright; instead, he will probably ask a team of legal advisers to recommend a new approach.

Even after all these policies are modified or abandoned, Obama will face lingering questions about whether anyone should be punished for Bush-era excesses. The feds are now probing whether CIA officials knowingly destroyed tapes of illegal interrogations in 2005, and officials at Justice are looking into whether the department’s lawyers acted appropriately when they wrote legal opinions that approved waterboarding and other unconventional interrogation methods. A similar Justice Department review of attorney behavior regarding the domestic surveillance program is also under way.

Lawmakers from both parties have called for accountability in all these programs, but neither Obama nor top congressional Democrats have signaled much appetite for prosecuting Bush Administration figures once they are out of office. An incoming President will need every vote he can get on economic and energy matters, and is unlikely to spend political capital on a divisive effort to assess blame for the missteps of a previous Administration. But civil rights proponents say a full review may be the only way to ensure that such government abuses do not happen again. Vincent Warren, executive director of the Center for Constitutional Rights, says, “Criminal prosecution of some of the people involved does have a restorative aspect, and not just symbolically.” Obama will probably cooperate with congressional probes of Bush-era behavior. But he may find it trickier politically to go after officials who were, most likely, just following orders.