Janes Mayer / The New Yorker – 2009-02-19 22:45:11

http://www.newyorker.com/online/blogs/tny/2009/01/behind-the-executive-orders.html

NEW YORK (January 25, 2009) — On Thursday, President Barack Obama consigned to history the worst excesses of the Bush Administration’s “war on terror.” One of the four executive orders that Obama signed effectively cancelled seven years of controversial Justice Department legal opinions authorizing methods of treating terror suspects so brutal that even a top Bush Administration official overseeing prosecutions at Guantánamo, Susan Crawford, recently admitted that they amounted to torture.

According to some of those opinions, many of which remain classified, President Bush could authorize U.S. officials to capture, interrogate, and indefinitely imprison terror suspects all around the globe, outside of any legal process.

The Obama Administration’s reforms may have seemed as simple as the stroke of a pen. But, on Friday afternoon, the new White House counsel, Greg Craig, acknowledged that the reversal had been gestating for more than a year.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the President before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

The steps already taken amount to a stunning political turnaround. One of the executive orders places all terror suspects held abroad unambiguously under the protection of the Geneva Conventions, which outlaw any cruel, inhuman, and degrading treatment.

Obama also unilaterally closed the C.I.A.’s “black sites,” and set a one-year deadline for closing the military prison camp at Guantánamo. He decreed that, from now on, the International Committee for the Red Cross must have access to all detainees in U.S. custody; the Bush Administration barred the Red Cross from seeing prisoners held by the C.I.A.

Sitting at a spotless conference table in an undecorated West Wing corner office up a narrow flight of stairs from the Oval Office, Craig, who is sixty-three, seemed boyish and energized. He explained that Obama’s bold legal moves were the result of a “painstaking” process that started in Iowa, before the first Presidential caucus. It was there that Obama met with a handful of former high-ranking military officers who opposed the Bush Administration’s legalization of abusive interrogations.

Sickened by the photographs from Abu Ghraib and disheartened by what they regarded as the illegal and dangerous degradation of military standards, the officers had formed an unlikely alliance with the legal-advocacy group Human Rights First, and had begun lobbying the candidates of both parties to close the loopholes that Bush had opened for torture.

Obama was “very excited” that day in Iowa, one participant in the off-the-record meeting recalled, “because he had just gotten polls showing that he was ahead,” but he didn’t seem particularly “comfortable” with the military delegation. The group of military men, which included the retired four-star generals Dave Maddox and Joseph Hoar, lectured Obama about the importance of being Commander-in-Chief.

In particular, they warned him that every word he uttered would be taken as an order by the highest-ranking officers as well as the lowliest private. Any wiggle room for abusive interrogations, they emphasized, would be construed as permission.

Obama “asked smart questions, but didn’t seem inspired by it. He totally understood the effect that Abu Ghraib had on America’s reputation,” the participant said. But, in general, “he was very businesslike. He didn’t flatter the officers,” as most of the other candidates had. In addition, Obama’s staff, the participant said, approached the meeting with the retired officers with less urgency than some of the other campaigns had. “But,” the participant said, in retrospect, “it started an education process.”

Last month, several members of the same group met with both Craig, who by then was slated to become Obama’s top legal adviser, and Attorney General-designate Eric Holder.

The two future Obama Administration lawyers were particularly taken with a retired four-star Marine general and conservative Republican named Charles (Chuck) Krulak. Krulak insisted that ending the Bush Administration’s coercive interrogation and detention regime was “right for America and right for the world,” a participant recalled, and promised that if the Obama Administration did what he described as “the right thing,” which he acknowledged wouldn’t be politically easy, he would personally “fly cover” for them.

Last week, as Obama signed the executive order, sixteen retired generals and flag officers from the same group did just that. Told on Monday that they were needed at the White House, they flew to the capital from as far away as California, a phalanx of square-jawed certified patriots providing cover for Obama’s announcement.

Shortly before the signing ceremony, Craig said, Obama met with the officers in the Roosevelt Room, along with Vice-President Biden and several other top Administration officials. “It was hugely important to the President to have the input from these military people,” Craig said, “not only because of their proven concern for protecting the American people—they’d dedicated their lives to it—but also because some had their own experience they could speak from.” Two of the officers had sons serving in Iraq and Afghanistan.

One of them, retired Major General Paul Eaton, stressed that, as he put it later that day, “torture is the tool of the lazy, the stupid, and the pseudo-tough. It’s also perhaps the greatest recruiting tool that the terrorists have.” The feeling in the room, as retired Rear Admiral John Hutson later put it, “was joy, perhaps, that the country was getting back on track.”

Across the Potomac River, at the C.I.A.’s headquarters, in Langley, Virginia, however, there was considerably less jubilation. Top C.I.A. officials have argued for years that so-called “enhanced” interrogation techniques have yielded lifesaving intelligence breakthroughs. “They disagree in some respect,” Craig admitted.

Among the hard questions that Obama left open, in fact, is whether the C.I.A. will have to follow the same interrogation rules as the military. While the President has clearly put an end to cruel tactics, Craig said that Obama “is somewhat sympathetic to the spies’ argument that their mission and circumstances are different.”

Despite such sentiments, Obama’s executive orders will undoubtedly rein in the C.I.A. Waterboarding, for instance, has gone the way of the rack, now that the C.I.A. is strictly bound by customary interpretations of the Geneva Conventions. This decision, too, was the result of intense deliberation.

During the transition period, unknown to the public, Obama’s legal, intelligence, and national-security advisers visited Langley for two long sessions with current and former intelligence-community members. They debated whether a ban on brutal interrogation practices would hurt their ability to gather intelligence, and the advisers asked the intelligence veterans to prepare a cost-benefit analysis.

The conclusions may surprise defenders of harsh interrogation tactics. “There was unanimity among Obama’s expert advisers,” Craig said, “that to change the practices would not in any material way affect the collection of intelligence.”

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