THE BLOG
02/22/2009 05:12 am ET Updated May 25, 2011

The Executive Orders: The End of the Beginning

With President Obama's announcement that he is closing Guantanamo, our long national torture nightmare -- also known as the the legacy of the Bush Administration -- is starting to end.

But we're not there yet.

First, let's hit the basics of what Obama did today:

1. U.S. policy will no longer ignore our core principles.

2. Guantanamo will be closed within one year.

3. The U.S. will comply with its treaty obligations including the Geneva Convention and the Convention against Torture.

4. Anyone detained by the United States will be interrogated according to rules established by the Army Field Manual (which is what the human rights community wanted included in the Military Commissions Act).

5. The administration is establishing an inter-agency task force to recommend on how to handle those detainees that cannot be released and provide guidance and advice to both the military and the Administration on how to handle detainees in the future.

6. The case of Ali Saleh al Marri is currently before the Supreme Court. The Administration is asking the Court to postpone consideration of the case until it can determine whether it wishes to continue to be a party to the case.

This is huge. This is everything and more than the human rights community hoped would happen in the first 90 days of the Administration, much less the first few days. With these actions, President Obama has obliterated much of the very actions that caused such ill will around the world, and pulled the rug out from underneath those who argue that the United States was a force for harm in the world.

(I want to take a moment to give props to my friend Elisa Massimino and the folks at Human Rights First, who who organized the delegation of 18 retired generals and admirals that met with Obama during the transition and who were behind him during the signing ceremony today. If you don't know, HRF, you should check out their website -- and support them. Unlike other groups (including one that I used to work for), they focus not on criticism but solutions. They have helped ensure that the Obama Administration did the right thing, and did it expediently. Even better, they found the right people to speak out on the issue.)

These executive orders are an important first step. But reversing the Bush torture regime needs to be about more than symbolism. Many challenges remain, including significant resistance within the intelligence community to banning all interrogation techniques not included in the Army Interrogation manual; determining what to do with those prisoners; and deciding who (if anyone) should be prosecuted for violating U.S. law and treaty obligations.

It also looks like Obama will face resistance from Congressional Republicans, who are holding up Attorney-General-designate Eric Holder's confirmation not because they are concerned about the Marc Rich pardon but rather because they are worried that Holder has not ruled out prosecuting Bush Administration officials for sanctioning torture.

What makes this report particularly troubling is the fact that Republicans are claiming it's about protecting the line officers who tortured and not those who ordered the acts. They are pointing to the Military Commissions Act, which they argue gives legal protection to anyone who thought they were acting within the law. And they will use as ammunition the specious argument -- put forward today by former Bush speechwriter and Helms acolyte Marc Thiessen -- that the goal of preventing another attack on U.S. soil justifies anything that U.S. officials might have done or may do in the future.

The reality, of course -- one that no Obama Administration official dare acknowledge (particularly those, such as Holder, who have not yet been confirmed) -- is that the Nuremburg principles make it explicitly clear that the "I was only following orders" defense does not excuse war crimes and crimes against humanity.

But even if the Obama Administration were to set that important standard aside (and to be clear, I don't think they should), I doubt that their focus would be to prosecute the line officers. That would represent a continuation of the Bush Administration's decision to prosecute the soldiers who committed the atrocities in Abu Ghraib without going after those further up the line who encouraged such practices.

I think the Obama Administration understands that, and will not allow the Republicans to turn the Holder hearings into a sideshow over potential prosecutions. After all, asking Holder to say whether he will prosecute anyone is not unlike asking a Supreme Court nominee how he would rule on a given issue: both are hypotheticals and have little to do with what the nominee will do once in office.

But it's increasingly clear that the path to justice will not be an easy one. The Obama Administration is facing significant resistance both from the intelligence community and Congressional Republicans. Even Jack Bauer is getting in the mix: the first episode of this season's 24 featured an unrepentant Bauer justifying his actions before a Congressional committee. It's only a matter of time before the wingnuts pick up on the theme as well.

So it is a day to cheer, but not to celebrate. The Bush Administration's policies caused great harm not only to our reputation but also our national security. There are hundreds if not thousands of terrorist aspirants who joined the ranks of al Qaeda and other groups as a result of Abu Ghraib, Guantanamo, and other such abuses. Sooner or later, one of them will participate in an attack against the United States, its interests, or its allies.

That is the real legacy of Bush -- not the supposed 2,668 days he supposedly (single-handedly?) prevented another terrorist attack. (And let's not even talk about the fact that had he paid more attention, he just might of prevented 9/11 -- with a strong emphasis on might.) Many of those who hate us do so not because they hate us or our freedom (as Bush so liked to say) but rather because they saw a huge gap between our rhetoric and our practices. With today's actions, that gap begins to close, but it cannot prevent the harm that will be caused by the previous Administration's acts.

In addition, much remains to be done in terms of implementation, and it will take more than a few signatures to rebuild completely our international reputation. And sooner or later, word will come out of someone exceeding the Army Field Manual; when that happens, it will be important to ensure that the Obama Administration responds quickly and appropriately.

And perhaps most important of all, this is an executive action, not a fundamental change. A future Administration could very well decide to reverse these EOs as quickly and efficiently as Obama has eneded Bush's policies. Preventing that may in the end be the real challenge, one far greater than ending a few abhorrent policies: how do we change the culture so that we no longer celebrate evils committed in the name of the public good?

To put it another way, how do we exorcise the ghost of Jack Bauer? That's going to take more than putting pen to paper.

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