Change Agent Hasn't Much Changed Law

In this March 27, 2009, file photo President Barack Obama shakes hands with Attorney General Eric Holder during Holder's installation ceremony as the 82nd Attorney General of the United States in Washington. AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


Judging a government, any government, after only its first 100 days is like judging a baseball game after the top of the first inning or a dinner after the bread has come. It's a silly exercise, an artificial, made-for-cable deadline designed to help the American Idol crowd get a sense of the "score" at the end of 1/15th of the presidency. Problem is, the "score" in presidential politics and power takes a whole lot longer than three months to be counted.

Nevertheless, under the aforementioned mild protest, I hereby report that the first 100 days of the Obama Administration, at least with respect to the law, have on the whole been kinder to conservatives than to liberals, to Republicans than to Democrats.

More often than not, the White House and the Justice Department have supported, and not dismantled, the most contentious legal policies and priorities of the Bush Administration. For a man who came into office under the mantra of "change," it's been a short period of remarkable status quo on most of the major legal issues of our day.

For example, apart from windy language about a "return to the rule of law," it has been hard (so far, 1/15 of the way in, remember) to discern any practical shift between the two administrations on many controversial legal topics surrounding the war against terrorism.

True, the Obama Administration pledged to close Guantanamo Bay by empty the symbolic prison there of terror suspects. But so did President Bush. Sure, the feds say they are using diplomatic efforts to "repatriate" some of the detainees. But so were Bush officials. Yes, the Justice Department plans to prosecute some of the worst terror defendants. But the Bush folks did, too. Meanwhile, the whole world is waiting.

The whole world is watching the president's approach to his predecessor's torture policies but so far, here too, the record is, at best, incomplete. The administration has done a credible job of making more transparent the dubious logic and alarming scenarios offered by Bush-era lawyers and policy makers. But making the guys you've replaced look as dumb as you said they were is no great triumph and takes no meaningful courage. Courage over the Bush torture policies means bringing to the witness stand -- never mind a defense chair - the architects of those policies, who have yet to be held to account. So far the Administration has merely hemmed and hawed.

Nor has the Obama Administration moved quickly or far away from its predecessor over the controversial "state's secrets" doctrine, designed to end litigation against the government at the request of the executive branch. The "secrets" privilege has been around for over half a century but was used sparingly until the Bush Administration, which it was invoked at least 23 times after 9/11. The new occupants of the White House say they'll go back to the old-school way of invoking the doctrine-but so far haven't backed away from supporting old Bush policies in existing "states secrets" cases.

And, even on those occasions when President Obama and Attorney General Eric Holder have sought to distinguish current government policy from past practice they have done so cautiously, with half-measures, so as to save unto themselves for another day the option of reverting back to Bush-era doctrines.

The best example of this phenomenon occurred when President Obama in early March declared that the executive branch would tactically retreat from his predecessor's routine use of "signing statements" to vitiate the legal impact of enacted legislation. We'll still see those statements, the new leaders say, only less often and only with the endorsement of the Attorney General.

Guns? Holder initially called for a rebirth of a federal assault weapons ban but then didn't follow through when given the opportunity to do so by Katie Couric, who asked him about gun control in the wake of a school massacre in New York state and on the eve of the solemn anniversaries marking the Columbine and Virginia Tech tragedies.

And it wasn't the Obama Administration's agency which allowed "Plan B" pills to be sold over the counter to 17-year-old women; it was a federal judge who pushed the FDA into that measure.

This is not to say that the first 100 days have been a total bust for folks looking for material change, any sort of change, from the way things were done during the eight years of the Bush Administration. The Justice Department wisely chose not to defend its conviction of former Alaska senator Ted Stevens, whose trial last year (during the Bush era) was riddled with prosecutorial misconduct.

The White House also wisely agreed to end a stalemate over "executive privilege" by brokering a complicated deal that helps hand unto the House Judiciary Committee the hides of former Bush officials Karl Rove and Harriet Miers for testimony about their role in the still unresolved U.S. Attorney scandal.

The Justice Department has begun to repair its own house, ripped to its foundation by the partisan incompetence of the Alberto Gonzales era. It has asked the Congress for more police to combat growing crime. It has taken a serious interest in the Mexican drug war. The president's first federal court nomination was a moderate and well-respected jurist who generated no major Senate showdown (that's occurred anyway, instead, over an executive-branch official, Dawn Johnson).

And after securing the confession of swindler Bernard Madoff, the Justice Department didn't just run in, willy-nilly, and start indicting the titans of Wall Street. There will be plenty of time for that.

Maybe some of these developments will take clearer shape in the next 100 days, or the first 1,000 days. Or maybe they just won't happen at all. The only thing I am willing to promise is that in true political fashion the toughest decisions have been left for later-- on torture, the Gitmo prisoners, guns, judges, and criminal cases against soiled bankers and market movers, the best (or worst) is yet to come.

There is no real score after the top of the first, in other words, but there is a lot of work ahead for the major players.
  • Andrew Cohen

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