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Can Obama Undo Bush's Tangled Legal Legacy?

Published:

Posted on Fri, Nov. 07, 2008

Can Barack Obama undo Bush's tangled legal legacy?

Marisa Taylor and Michael Doyle
WASHINGTON — When Barack Obama becomes president in January, he'll 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:

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  • 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?
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  • 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?
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  • 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?
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  • 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 over the last 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'll 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.

Negotiating that minefield may be among the most difficult legal dilemmas Obama faces early in his administration because of pressure from the left and the right.

"There will be hell to pay if people are prosecuted," said Sanford Levinson, a University of Texas law professor. "But there'll be hell to pay if they just walk away scot-free."

He predicted that Obama might sidestep the controversy with the Bush administration's help. If President Bush issues pre-emptive pardons to prevent prosecutions, the Obama administration should form a bipartisan panel, similar to the Sept. 11 commission, to oversee an inquiry, he said. Once pardoned, officials implicated in the controversy would be required to discuss details of the policies because they'd be unable to assert their Fifth Amendment right to avoid self-incrimination.

The best person to lead such a commission? Levinson thinks it's John McCain, who condemned the interrogation techniques when he was running against Obama.

"There would be widespread support if the Obama administration did reach out to someone like McCain," Levinson said. "More people would regard it as not so much of a Democratic vendetta but as a necessary cleansing of an episode in recent American history that has had phenomenal costs to us around the world."

Democratic Sen. Dianne Feinstein of California, a senior member of the Senate Judiciary and Intelligence committees, predicted that Obama would move to close Guantanamo relatively quickly. She'll reintroduce legislation to do so early next year.

"The handwriting is on the wall," Feinstein said. "It's just a matter of time."

Although Guantanamo isn't expected to be as thorny as the issues of interrogation techniques, detention without charges and eavesdropping, it may take longer to close than Obama wants because of the question of what to do with high-value terrorists. The Obama administration could end up moving them to prisons scattered across the United States as it sorts out who should remain jailed and where others should be sent.

The Bush Justice Department chose to fight the court-ordered releases of many of the detainees, even those whom the military had cleared. Obama's attorney general is likely to soften that stance and begin releasing them with court oversight, or perhaps order new legal reviews of all detainees.

Three dozen district-court and 15 appellate court vacancies await. Appellate court decisions set precedents for multiple states. Whoever fills the vacant seat on the San Francisco-based 9th U.S. Circuit Court of Appeals, for instance, will shape the law covering nine Western states.

For this reason, appellate court vacancies can become battlegrounds. On the 4th Circuit Court of Appeals, which spans five states, including the Carolinas, a vacancy lingers after eight years.

Considerable speculation in the legal community has centered on potential female appointees to the Supreme Court, where Justice Ruth Bader Ginsburg is the only woman. One potential candidate is Judge Sonia Sotomayor, the first Hispanic woman to serve on the 2nd Circuit Court of Appeals. Another is Harvard Law School's Dean Elena Kagan, who like Obama was on the University of Chicago Law School faculty.

Noncourt appointments, too, can shape the law in important ways.

Whomever Obama appoints as attorney general and in other top positions in the Justice Department could move in new directions on hot-button issues such as gun control and immigration. And after pledging to tackle the financial crisis and concerns about global warming, Obama might dedicate more resources to prosecuting white-collar and environmental crimes.

Paul Charlton, one of the nine U.S. attorneys whom the Bush administration ousted, predicted that an Obama administration would take a different approach to the death penalty. Charlton clashed with Bush appointees who pushed prosecutors to seek the death penalty in a wide array of cases, including drug trafficking. "I expect there will be a more judicious use of the death penalty," he said.

However, Bush administration critics who hope an Obama White House will be the antidote to what they see as excessive executive power may be disappointed.

Gene Healy, a Cato Institute vice president and the author of the book "The Cult of the Presidency: America's Dangerous Devotion to Executive Power," said expanding presidential power was a bipartisan reflex.

"People tend to think more positively about having robust executive authority when they're the ones who are actually wielding the authority," he said.

Obama, however, is unlikely to be aggressive as Bush. "He'll probably seek congressional approval, and that may be more effective at growing executive power than the unilateral, go-it-alone approach," Healy said.

Entry #470

Comments

1.
NBey6Comment by NBey6 - November 7, 2008, 9:17 pm
Bush pulled the trigger on this mess, but made sure he and Dick Cheney would get off "scot-free." Abuse of Executive Power, period.
2.
TenajComment by Tenaj - November 7, 2008, 9:27 pm
We got a lot of work to do.
3.
Comment by Piaceri - November 7, 2008, 10:00 pm
Two things Obama needs to stay away from without question:
1. Gun control
2. The telecommunications companies' immunity

Gun control? We have laws. We need to enforce them. We need to prosecute. Yes, I have guns. I got them legally. You won't take them away from me. The 2nd amendment guarantees me the right to protect myself, especially from my own government. If you know anything about the history of the 2nd Amendment, you know that Thomas Jefferson had mentioned in the Declaration of Independence that if a government failed to protect its citizens and instead became their enemy, they had the right to overthrow that government. One original reason for the right to bear arms was not just for defense against external enemies. We wanted protection from our own government.

Telecommunications immunity? We have derailed so many plots and attempts of terrorists that it is no longer major news. All of these were stopped due to information gleaned through listening to certain individuals' international telecommunications. Certain individuals. International. They don't give a rat's ass about you and me. They aren't listening to you and me. Well, not unless you go international and use a few certain terms like "jihad", "bomb", etc. Take this away, and we will see terrorist attacks in our cities again. Believe it. Or would you rather take the chance?

The article is pretty good, tough I don't agree with much. What it focus' on is the challenge that Obama faces in the decisions he makes of these issues. Do you NBey6 or Tenaj want to house an international terrorist at the federal prison down the road from you? Release him into society so he can plot again? What do you do with the Guantanamo detainees if you close Guantanamo?

George W Bush is not an evil man. He is a man like you and me, only he was given the honor of President of the US. While President, our nation was attacked like it had never been before. Thousands of innocent citizens died because we thought we were safe. The main role of government in our Republic is to keep its citizens safe. Job # 1. This is the core belief of George W Bush. He has done what he has thought was right to protect our shores. You can't take that away from him. Put yourself in his shoes. He may have done things wrong over the years, but any of you Monday morning quarterbacks can sit here safely behind your computer monitor and judge him after the fact.

btw, the fact that you CAN sit there safely behind your computer monitor, you owe in some fashion to George W Bush. Believe it.
4.
NBey6Comment by NBey6 - November 7, 2008, 10:06 pm
Piaceri - Will all due respect, you do not know if I sit "safely" in front of my computer moniter. You, as well as millions of Americans only assume you are safe. Safety is a state of mind and no man can give that to me!

^_^
5.
Comment by Piaceri - November 7, 2008, 10:20 pm
NBey6 - you are right if you want to live in a constant state of fear. If you do, the terrorist have won without trying very hard. Of course, I am assuming you are in the states. If not, you have my utmost condolences - lol.
6.
ToddComment by Todd - November 7, 2008, 10:45 pm
*shakes head*
7.
NBey6Comment by NBey6 - November 7, 2008, 10:47 pm
No worries. Your truth may be different than mine, but as long as we have respect for the differences, we can still move in the same direction.

:-)
8.
Comment by Piaceri - November 7, 2008, 10:58 pm
It is all perception NBey6. I can accept that some people look through hypnotized eyes - why I believe there are 65 million people just here in these United States of America who just within these past 6 or so months looked through hypnotized eyes as they entered the voter booth. Very common condition. Luckily 57 million were able to resist. The only cure is a little dose of conservative common sense. If you want, I can help you with that....Look deep into my eyes...    O_O
9.
TenajComment by Tenaj - November 8, 2008, 9:42 am
Yes, I think it can be done. History has shown us many times over. It will take a minute though and so many people have their own agenda. The good thing is that big corporations and banks won't have those people in the White House writing policies that benefit only them and that stops a lot of corruption in itself.

I'm hopeful that jobs will come back. I think there ought to be a penalties for companies that outsource jobs and use illegal immigrants. That needs to stop.

Granted you always have a few that's still there but the culprit will be gone.   He did exactly what he wanted and ignored the approval of everyone around him. Shall I say who it is.
10.
Rick GComment by Rick G - November 8, 2008, 11:04 am
On the first day in office, Obama should issue an executive order directing all agencies to modify their policies and practices immediately to:

    * Cease and prohibit the use of torture and abuse, without exception, and direct the Attorney General immediately after his or her confirmation to appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws prohibiting torture and abuse;
    * Close the detention facility at Guantanamo Bay and either charge and try detainees under criminal law in federal criminal courts or before military courts-martial or transfer them to countries where they will not be tortured or detained without charge;
    * Cease and prohibit the practice of extraordinary rendition, which is the transfer of persons, outside of the judicial process, to other countries, including countries that torture or abuse prisoners.

This behavior is an absolute disgrace. These efforts would only be pancake makeup on a black eye, but it would go far in restoring our reputation in the world.
11.
NBey6Comment by NBey6 - November 8, 2008, 2:36 pm
If 65 Million people looked through so called "hypnotized eyes" or 165 Million people did is not the issue. The issue to me seems to be that it bugs the hell out of the others, that they can't control the ones who supposedly did. LOL!!!!!!!!!!!

You know I'm probably right that's why it goes on and on and on like the energizer bunny. I live in North Carolina, so I really don't need any condolences plus I am so sound mind and judgement. I am and have always been an independent thinker and doer. If I'm in the clique, oh well, if not, who cares. I always do me, do you?????

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