Bush's Dark Legacy Will be a Barrier to Change for the Next Administration

By Aziz Huq, Middle East Online. Posted February 14, 2008.

The Bush/Cheney administration has opened a Pandora's box of executive branch activity -- from torture to anchoring the United States in Iraq -- making George Washington's 'Farewell Address' warnings about honesty and foreign entanglements as vital as ever, says Aziz Huq.

Most people who cast ballots on Super Tuesday believed they were voting not just for a new face in the White House but also for sweeping new policies. Few believe a President McCain, Romney, Obama or Clinton would hew to all of the policies of Bush and Cheney -- and even fewer believe they should.

Yet that certainty may be misplaced. When the next President is sworn in, the clammy fingers of the Bush Administration may still be wrapped around vital national policies. Even in the past few weeks, the Administration began entrenching strategic policies that are core to its ideological commitments in national security.

Acting largely in secret, the Administration is moving to tie down the next White House -- Republican or Democratic -- in ways that will prove hard to unravel. Whether or not it succeeds depends on the vigilance of Congress and the public.

The idea of turning over a new leaf in the Oval Office goes back to the Republic's early days. But George Washington's decision to return to Mount Vernon in 1796, eloquently explained in his famous farewell address, began a long tradition of limited tenure in the White House. Thanks to the Twenty-Second Amendment, which limits a President to two terms, we find it now profoundly obvious that an office as capacious, and potentially capricious, as the presidency should not be held by one man for too long. Indeed, even the inkling of hereditary politics is considered by many a step too far.

But Presidents have long sought ways to embed their policies beyond their terms. In January 2006, Justice Sandra Day O'Connor's retirement gave Bush a chance to shove the Court to the right. On his way out the White House door in 2000, President Clinton fired off regulations on energy-efficiency standards for washing machines, and for workplace ergonomics. Supreme Court appointments are hard to undo, but regulations are far more easily wound back: In January 2001, White House Chief of Staff Andrew Card moved quickly to freeze all regulatory actions without Bush's signature.

So what can a President and Vice President seeking ideological immortality do? If they're Bush and Cheney, they can turn to secrecy, inertia and dubious constitutional theories.

Inertia and ambiguity seem to be serving Bush and Cheney quite well in their effort to extend the practice of coercive interrogation. One of the Administration's enduring legacies will be the fact that the United States is now globally known to sanction and use torture. And the specific techniques that have been authorized, including waterboarding, environmental manipulation, and physical blows, are relatively well-known.

Despite two pieces of legislation purporting to tighten or clarify rules against coercive interrogation, the next President will inherit a situation of tremendous ambiguity, with the CIA's much-vaunted interrogation practices not a smooth-running program but a train wreck.

There is a remarkable ambiguity at the heart of the McCain Amendment and the Military Commissions Act, both of which addressed coercive interrogations. President Bush declared in September 2006 that Congress needed to "clarify the rules" for the CIA, yet the Administration has worked overtime to ensure that the rules stay murky.

In secret legal opinions, the Justice Department has parsed recent legislation so that tactics like waterboarding can be "defined" below the level of torture, as something other than cruel, inhuman or degrading. And the Administration seems to have wriggled out of actual compliance with Common Article 3 of the Geneva Conventions, which limits "cruel" acts.

Only through these dubious legal moves can Attorney General Michael Mukasey still claim that the law about waterboarding is unclear. Responding to senators' inquiries last week, Mukasey explained that waterboarding "is not, and may not be," illicitly used by the CIA. He refused to rule it out because "any answer I give could have the effect of articulating publicly -- and to our adversaries -- the limits and contours of generally worded laws that define the limits of a highly classified interrogation program."

Mukasey refused to discuss such "limits," even in closed session with members of the Judiciary Committee. Instead, he warned that the legality of waterboarding remained an open question that might be lawful "under the particular conditions and circumstances."

Mukasey's position, in short, is that the Administration declines to give up its claim that waterboarding might be "lawful" in some scenarios or -- as important -- to disclose its legal analysis, even to members of Congress.

The next Administration will thus inherit a perverse and bewildering situation: There are multiple anti-torture laws on the books. Read normally, any one of these laws would bar waterboarding and its ilk. But the law within the executive branch on January 19, 2009, will be far from normal. Everything, as Mukasey said, will depend on the "circumstances."

See more stories tagged with: bush, iraq, torture, clinton, obama, legacy, mukasey, military commisions act, mccain amendment

Aziz Huq directs the liberty and national security project at New York University's Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press, 2007).

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