Having inherited an undifferentiated mass of legal “war on terror” doctrine from the Bush administration’s constitutional chop shop, President Obama finds himself in the position of being Bush’s Secret-Keeper. Picking its way warily through a minefield of secrecy and privacy claims, the Obama administration this week released nine formerly classified legal opinions produced in the Office of Legal Counsel (while holding back others that are being sought) and brokered a deal whereby Karl Rove and Harriet Miers will finally testify about the U.S. attorney firings (but not publicly). Meanwhile, the administration clings to its bizarre decision to hold fast to the Bush administration’s all-encompassing view of the “state secrets” privilege, and the Nixonian view of executive power deployed to justify it. The Obama administration has also been quick to embrace the Bush view of secrecy in cases involving the disclosure of Bush era e-mails and has dragged its feet in various other cases seeking Bush-era records. If there is a coherent disclosure principle at work here, I have yet to discern it.
Trying to tease out a unifying theme here is probably not possible; there are not, as yet, enough data points. I have argued before that one of the reasons Obama will want to keep Bush’s secrets is that he wants to protect his own. What’s good for the goose and all. But it seems to me that along with good (or at least plausible) reasons for shielding Bush-era misconduct from public scrutiny, President Obama may also have some wrongheaded ideas about protecting Americans from knowing the truth.
Americans beg to differ. The president has been proved wrong in his claim that there is no political will in this country for unearthing wrongdoing. Polls increasingly show that—despite the tanking economy—close to two-thirds of the public want investigations into the Bush team’s use of coercive interrogation and warrantless wiretapping. My guess is that those numbers will only go up, as America digests the OLC’s newly released constitutional quilting projects. This latest batch of memos, after all, offers us the proposition that U.S. citizens wouldn’t be protected by the Fourth Amendment if the military were deployed against suspected terrorists in the United States and that the president (as channeled by then-OLC lawyer John Yoo) had secretly granted himself the right to suspend free speech and a free press.
What else might the president be wrong about when it comes to concealing Bush’s mistakes from Americans? Here’s a partial list:
The line between “before” and “after.”The position of the executive branch is that Obama believes in looking forward. America needs to turn the page; nothing is to be gained by digging up old skeletons; choose your future-facing metaphor. But as Sen. Patrick Leahy has taken to saying, “We need to be able to read the page before we turn the page.” All crimes happen in the past. A legal regime that perpetually looked forward would be absurd. For years now, conservatives and victims’ rights groups have used the language of “closure” to demand that rights be wronged and reparations be made when crimes occur. That’s why 9/11 families were invited to witness tribunals at Guantanamo. Yet liberals, somehow, are loath to demand “closure” or “healing” or “resolution.” When it comes from the left, such sentiment is perceived as bloodlust. Conservatives don’t have a monopoly on looking backward.
Yikes! We can’t criminalize “policy differences.” This was Attorney General Eric Holder’s line at his confirmation hearings last month, when asked if he would take action against Bush administration officials who authorized waterboarding or warrantless surveillance. But as Sen. Sheldon Whitehouse has pointed out, that very formulation is offensive. What Whitehouse has called the “pervasive, deliberate, and systematic damage the Bush administration did to America” cannot really be brushed aside as a mere difference in policy. One can choose between two legal options and call it a policy dispute. When one’s policy is to break the law, that’s what we call a crime.
People just doin’ their jobs.Former Bush administration officials do themselves no good when they simultaneously argue that their actions were lawful and necessary—and saved our lives many times over—and that they should also be excused because they were terrified. Stephen Bradbury, then acting head of OLC tells us that the appalling work in the newly declassified memos should be filtered through the prism of temporary insanity: “It is important to understand the context of the  Memorandum,” Bradbury wrote, in a memo to the file. “It was the product of an extraordinary—indeed, we hope, a unique—period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
Obama made the same leap when he said “part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up.” But of course nobody is saying that everyone at the CIA needs a lawyer, or will be prosecuted for mistakes made in the field. This isn’t about going after people who were just doing their jobs under tough conditions. It’s about understanding how just doing their jobs came to include torture.
The fundamental mistake underpinning all the thinking above is that openness about past errors leads inexorably to ugliness, politicization, and rancor. But it’s worth recalling for a moment that we are already knee-deep in ugliness, politicization, and rancor. Transparency is not necessarily the first step toward indiscriminate prosecutions of everyone who ever worked for President Bush. It doesn’t mean that from now until forever, each administration will criminalize the policy differences of the administration before. It doesn’t mean that all mistakes are war crimes, or that hereinafter all investigations are all “perjury traps.” That’s the kind of binary, good/evil thinking we were supposed to have left behind us last November.
If President Obama has some better rationale for hiding the markers along the road to torture or eavesdropping from the American people, it’s time we heard it. But keeping this information from us for our own good is not an acceptable argument. The most recent OLC memos demonstrate precisely why the last eight years were so extraordinary. The suggestion that we just need to get over it is starting to sound extraordinary, too.