According to numerous reports, President Obama will sign today signed an three executive orders (or orders) today ordering mandating, among other things, the closure within one year of not merely of Guantanamo, but all remaining secret prisons.   The order also will require that the government undertake a review of the cases of the remaining 245 prisoners held in Guantanamo.

The closure of Guantanamo, as I noted yesterday, is an important step.  But reversing the Bush torture regime needs to be about more than symbolism.  Many challenges remain, including significant resistance within the intelligence community to banning all interrogation techniques not included in the Army Interrogation manual; determining what to do with those prisoners; and deciding who (if anyone) should be prosecuted for violating U.S. law and treaty obligations.

It also looks like Obama will face resistance from Congressional Republicans, who are holding up Attorney-General-designate Eric Holder’s confirmation not because they are concerned about the Marc Rich pardon but rather because they are worried that Holder has not ruled out prosecuting Bush Administration officials for sanctioning torture.

What makes this report particularly troubling is the fact that Republicans are claiming it’s about protecting the line officers who tortured and not those who ordered the acts.  They are pointing to the Military Commissions Act, which they argue gives legal protection to anyone who thought they were acting within the law.  And they will use as ammunition the specious argument — put forward today by former Bush speechwriter and Helms acolyte Marc Thiessen — that the goal of preventing another attack on U.S. soil justifies anything that U.S. officials might have done or may do in the future.

The reality, of course — one that no Obama Administration official dare acknowledge (particularly those, such as Holder, who have not yet been confirmed) — is that the Nuremburg principles make it explicitly clear that the “I was only following orders” defense does not excuse war crimes and crimes against humanity.

But even if the Obama Administration were to set that important standard aside (and to be clear, I don’t think they should), I doubt that their focus would be to prosecute the line officers.  That would represent a continuation of the Bush Administration’s decision to prosecute the soldiers who committed the atrocities in Abu Ghraib without going after those further up the line who encouraged such practices.

I think the Obama Administration understands that, and will not allow the Republicans to turn the Holder hearings into a sideshow over potential prosecutions.  After all, asking Holder to say whether he will prosecute anyone is not unlike asking a Supreme Court nominee how he would rule on a given issue:  both are hypotheticals and have little to do with what the nominee will do once in office.

But it’s increasingly clear that the path to justice will not be an easy one.  The Obama Administration is facing significant resistance both from the intelligence community and Congressional Republicans.  Even Jack Bauer is getting in the mix:  the first episode of this season’s “24″ featured an unrepentant Bauer justifying his actions before a Congressional committee.  It’s only a matter of time before the wingnuts pick up on the theme as well.

This represents one of the first real tests for the Obama Administration:  will it seize the opportunity to do the right thing, or will it choose not to fight this fight — at least for now — allowing its opponents to use straw men to divert the public’s attention.  I hope it is the former, that the coming executive order(s) represent only a beginning.  That would mean that the Guantanamo decision will be followed not only by additional executive orders (on torture and rendition, for example) but also by a push in Congress to pass key legislation (such as a repeal of the Military Commissions Act).

Equally importantly, the Obama Administration should move quickly to release as many relevant documents as quickly as possible, and with minimal redactions.  That should include all relevant “torture memos,” including those that have been leaked to the press.

In turn, human rights activists need to overcome the temptation to focus on prosecution.  Instead, they should push the Obama Administration to focus on changing policy and the expedited release of relevant documents.  Right now, the key is not prosecutions but getting to the bottom of what happened.  In the end,  the best way to ensure prosecutions is to expose what happened, and to do it as soon as possible.

UPDATE:  I’ll share the text of the three orders as soon as they’re up on the White House website.

Related posts

• The New Executive Orders: Guantanamo, Torture, Detainees
• Jack Bauer, White Courtesy Phone Please
• Johnson and Johnsen
• Guantanamo: Heading in the Right Direction
• Why SCOTUS Should Hear the Al-Marri Case