US: Undoing Bush

Almost immediately after Barack Obama was elected president of the United States, a flurry of speculation began over when and how he would use his executive powers to undo some of the excesses of President George W Bush.

Published reports indicate that over 200 Bush-era executive orders are currently under review by the Obama transition team.

Ironically, Obama will be operating in an environment of enhanced presidential powers thanks to the uninhibited use of the executive pen exercised by his predecessor. The Bush administration successfully increased presidential power through secret opinions and orders authorizing unprecedented detention, surveillance and interrogation practices. Restoring earlier standards of civil liberties will largely rest on the shoulders of the new president.

That Obama will be undoing some of Bush's abuses by the stroke of his own pen is no longer a matter of speculation, having been confirmed by the president-elect himself. Asked on a television interview on 16 November whether he would sign an executive order closing the infamous prison at Guantanamo Bay, Cuba, Obama was unequivocal.

"Yes," he said. "I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world."

Early strike

Less certain is the timing of Obama's Guantanamo closing. The American Civil Liberties Union has called on the president-elect to close the detention center on the first day of his presidency.

"There is no room for patience or delay in these areas," Anthony Romero, the organization's executive director, told ISN Security Watch. "We have to hold President-elect Obama's feet to the fire if we're going to turn hope into reality. We hope that President-elect Obama will sign an executive order closing Guantanamo."

Obama will be in good company if he acts in the first days of his presidency. Franklin Roosevelt, who also inherited a financial and economic crisis, issued immediate executive orders that took the US off the gold standard and declared a national bank holiday that closed insolvent institutions for four days.

"Strike early," advised Allan Lichtman, a presidential historian and a professor at American University in Washington. "Newly elected presidents are strongest in the early days of their administration before buyer's remorse sets in for the public and opposition in Congress has a chance to organize and gain strength," he told ISN Security Watch.

Bush also took action on his first full day in office in 2001 by reinstating the so-called global gag rule, initiated during the Reagan administration and overturned by president Bill Clinton. That rule prohibited US aid dollars from benefiting international family planning groups that perform abortions or provide abortion counseling.

Reinstating the Clinton administration's policy on this issue is also likely to come early in Obama's presidency. After Obama's victory, the Center for Reproductive Rights delivered a 23-page memo to his transition team, calling for a "bold policy change," including a repeal of the gag rule. As a stalwart supporter of reproductive rights, Obama can be expected to undo Bush's executive order early on.

The other big issue mentioned prominently by top Obama staffer John Podesta in a media interview involves a reversal of Bush's executive order prohibiting federal funds to be used for embryonic stem cell research. Private and state funding currently maintain the US position as a world leader in stem cell research, but the absence of federal funding has limited research opportunities in the US and has benefited locations abroad.

The United Kingdom in particular has benefited from Bush's restrictive policies, as several US researchers have chosen to relocate there. International researchers who may have otherwise considered opportunities to work in the US have had less of an incentive to do so during the Bush years. A change in policy will enhance research opportunities in the US, but may leave other countries vulnerable to a brain drain.

The future of civil liberties

Obama's greatest challenge will be to take a close look at Bush executive orders which infringe on civil liberties and protections in the name of national security. The best known among these is the executive order that granted wide latitude in defining who is a terrorist combatant, and allowing indefinite detention of those individuals.

The more recent Executive Order 13440 from July 2007, designed to dodge a US Supreme Court ruling recognizing the constitutional rights of detainees, gave the green light to interrogators to disregard Geneva Convention requirements on the treatment of prisoners.

Still other of Bush's executive orders gave the CIA power to detain and interrogate terrorism suspects, loosened civil liberties safeguards on US and foreign citizens suspected of aiding terrorist activities, and expanded the power of the US foreign intelligence agencies.

Obama's presumed closure of Guantanamo may be an important first and symbolic step, but the danger is that Obama will see the national security picture differently from the behind the desk in the Oval Office than he did on the campaign trail. He will, after all, be handed the tools of an expanded national security and surveillance state, crafted by the Bush administration with the complicity of a Republican Congress.

Most telling may be how Obama deals with the remaining 250 Guantanamo detainees. Some will undoubtedly be released, while others may be transferred to their home countries for continued detention. Still others will brought to the US for trial.

For those brought to face charges, Obama will have to decide whether to use the ordinary criminal process or to devise a new set of national security courts to replace the military tribunals Congress approved in 2006 but which were since invalidated by the Supreme Court.

Trial in civilian criminal courts may be problematic because those courts will likely not accept evidence extracted from prisoners by questionable means. The creation of separate and secret national security courts will create significant future civil liberty issues, not only for terrorism suspects, but for all Americans.

Congressional oversight of intelligence gathering and counterterrorism activities proved ineffective during the Bush years, and judicial review over national security activities has been restricted. This leaves it to Obama himself to ascertain how he implements and exercises the vast new powers he has been bequeathed by Bush.

He may undo some of the more egregious Bush excesses by executive order. He may even ask Congress to repeal some of the more objectionable legislation.

But there is little doubt that the Obama administration will be left with significantly more executive power than many of its predecessors. It will largely be up to the president himself to act with restraint and to create checks and balances within the executive to limit overreaching and abuse.

One reason for optimism is that Obama himself was once a constitutional law instructor at the University of Chicago. According to a external pagereportcall_madein the Denver Post, Obama promised to review all of Bush's executive orders while campaigning in Wyoming last March. With the promised review now underway, perhaps he will also keep the promise he made to a voter back then; to discard those he deemed unconstitutional.