Pruning Shears

No Associated Press content was harmed in the writing of this post

President Obama has received largely positive reviews for his early performance, and there certainly have been some welcome breaks with the Bush administration. The executive orders (EO) closing Guantánamo and the black sites are probably the most important. His instruction to federal agencies to err on the side of openness with Freedom of Information Act requests is also a great sign. There are plenty of reasons to feel encouraged so far. But since he has been in office less than two weeks these positive actions are still largely theoretical. The devil is in the details, and until we see how they translate into action it is premature to start celebrating.

The American Civil Liberties Union (ACLU) decided to dive right in by “calling on the Justice Department [JD] to release Bush administration documentation pertaining to torture, surveillance and other controversial national security policies.” The Office of Legal Counsel (OLC) issued dozens (via) of secret documents during the Bush years, to the point that the nature of the office itself changed. Instead of providing well reasoned legal opinions that placed adherence to the law above political considerations, it was used as a shadow legislature. Its rulings gave the president cover (so we are told) to act with impunity and ignore the law, or more pointedly that OLC rulings were the law. Will president Obama allow this system to see the light of day and be scrutinized? Will he seek to keep it hidden from public view? Or will he try to split the difference by putting the ACLU requests into a purgatory of “review” that will never be finalized?

Moreover, we should not be looking to the executive branch to fix executive branch excesses. EO’s are under a cloud these days because of the legal theory Marcy Wheeler comically (and brilliantly) belittles as Pixie Dust: “the claim that the President can just ignore his own executive orders.” The Bush administration took just such a position and its validity is currently being worked out in the courts. But for the moment at least they are subject to the whims of the president and not exactly strongly binding. Even if the courts eventually decide that EO’s cannot be modified on the fly they are still subject to quick reversal by succeeding presidents. For as nice as the new orders are, some are only as durable as future presidents decide they are.

Most coverage has seemed to characterize the new president’s direction as either a complete repudiation of Bush’s policies or a halfhearted one being rhetorically presented as wholehearted. But as the Wheeler link shows, Obama’s White House Counsel Greg Craig appears to endorse the Pixie Dust theory. If the Obama administration is prepared to endorse dubious and odious novelties like that right out of the gate it indicates there may be more continuity with the last president than many are willing to acknowledge. Concrete actions like closing Guantánamo cannot be done right away, but basic principles about and stances toward the law can be established literally from day one. Some of them so far are not very comforting.

Jack Shafer pointed out another bad habit that seems to have carried over: The near-obsessive use of background briefings by the White House. Instead of going on the record, administration officials have insisted on almost presumptively being anonymous in everything they say - even when no weighty considerations are in play. Since the reporters know who these people are, their identities are an open secret in Washington. Shafer concludes, “The only people left in the dark are citizens and readers. Why can’t we trust them with the identities of background briefing? As long as it’s a new administration, why not turn on a few lights?”

Some in Congress are trying. John Conyers’ subpoena of Karl Rove will be an early test. JD lawyers must respond to it by February 18th, and John Byrne writes that when it does we will get a sense of “how broadly Obama will interpret executive authority and whether he will change course.” (In a related article Byrne also notes “Obama might also effectively protect Rove and President Bush by retaining a broad interpretation of executive privilege.”) This and other early issues seem especially important because they will indicate the tone we can expect for the next four years, and whether or not the president will look to preserve much of the assertions and power grabs that have bothered so many of us for the last eight. And in any event it is not enough for us to hope a benevolent new president grants us the concessions the last one took away. We have to be prepared to grab back, and yank hard.