President-elect Barack Obama's promise to rethink, reexamine and maybe even scrap some of Bush' executive orders was greeted with much joy by environmentalists, abortion rights advocates, and labor union officials. But Obama also lightly noted that he'd take a laser close look at those Bush executive orders which might infringe on civil liberties rights and protections. His legal vetting team won't have to look very hard. A start and end point should be the 31 Bush executive orders that deal with Iraq and the terrorism war.
The best known and most controversial was the executive order that granted wide latitude in loosely defining what and who is a "terrorist combatant," where and how long that individual could be held (indefinitely) and how they should be legally disposed of (none of the standard constitutional protections). The Supreme Court dealt Bush a mild setback in 2007 when it limited some of the worst interrogation and torture abuses the military and the CIA subjected prisoners held at Guantanamo to.
But Bush, undaunted, simply issued Executive Order 13440 in July, 2007. The order was deliberately vague and did not spell out what interrogation practices were permissible. The likelihood is that the order gave the green light to interrogators to dodge the safeguards spelled out in the Geneva Convention against illegal and inhumane treatment of prisoners. Since then the military hasn't missed a beat in their prisoner interrogations. This is only the most naked example of using an executive order to subvert the law. More than two dozen other executive orders that Bush signed into law and that quickly became operational between 2005 and early 2008 have slipped far under the public radar scope and have gotten little if any public attention or just as abusive.
The laws give the CIA power to detain and interrogate terrorism suspects, loosens civil liberties safeguards on foreign and U.S. citizens suspected of aiding and abetting terrorist activities, vastly expands the range, number and power of the foreign intelligence agencies, define what is considered weapons of mass destruction, sharply expands the number and type of documents that can be classified, and limits their release under the Freedom of Information Act.
The orders establish a national counterterrorism center, and licenses and contracts so-called security professionals. They widen the appointment power of the Secretary of Defense and his ability to determine what constitutes a national emergency, ladles out a laundry list of new powers and duties to Homeland Security, and establishes and expands the Intelligence Oversight Board.
Bush signed one executive order the same week he signed the executive order that subverted the Supreme Court's ruling on prisoner interrogation practices. The order blocks the sale and transfer of property of any individual deemed a threat to the stabilization efforts in Iraq. Translated, that means that anyone who speaks out against the Iraq War can be branded a terrorist and have their property seized. This legally dubious executive order received passing press mention and little lawmaker scrutiny.
On top of the legally suspect set of executive orders Bush issued on Iraq and the terrorism war, there's much speculation and worry that Bush plans an 11th hour and 59th minute coup and will sign nearly 100 executive orders or codify federal regulations into law. There's no mention yet specifically what these orders or regulations will entail. However, if there's any truth to the report of Bush's last gasp plan to put in place more legally troubling rules on the federal books, it's a good bet that some of the regulations or executive orders will slap even more constitutionally questionable restrictions on individual rights and liberties and give the CIA and the military even greater latitude in the terrorism war.
This would force Obama to waste even more time trying to determine which orders and regulations are sound law and which ones aren't. And then spend even more time trying to figure out how legally to unravel the ones that aren't.
Team Obama should say publicly and loudly to Bush that there's barely two months left in his White House tenure so it's unfair to saddle a new administration with the burden of having to sift through yet another batch of orders or regulations that can and should wait for Congress and the new administration to take action on, if indeed action is really needed.
Bush made a deliberate legal mess of the terrorism war, and at least some of his executive orders horribly show that. Now it's Obama's task to take a hard and long look at all of them, and then scrap the ones that blatantly stretch or violate the law.
Earl Ofari Hutchinson is an author and political analyst. His forthcoming book is How Obama Won (Middle Passage Press January 2009)