THE YEAR IN CIVIL LIBERTIES AND THE RULE OF LAW

To many progressives, one of the most galvanizing aspects of Barack Obama’s campaign for the presidency was his pledge to roll back the executive excesses of the Bush-Cheney era and restore a sensible balance between national security and civil liberties in American political life. “We reject as false the choice between our safety and our ideals,” the newly elected president declared in his inaugural address.  And after eight years of secrecy and skullduggery in the name of national security, Obama’s stated determination to get the country back on track engendered an upswell of devotion that helped sweep him into office, and an almost impossibly high set of expectations.

A year on, there is no question that matters have improved dramatically in some important areas when it comes to America’s conduct of the ongoing “war on terror.” But in other areas, the administration has opted to retain key components of the very Bush policies that candidate Obama decried. 

Torture and “Enhanced Interrogation Techniques”

The unequivocal high point of the year for civil libertarians, and the most definitive break with Bush administration policy, came on January 22, when the new president issued an executive order instructing the CIA to immediately cease using “enhanced interrogation techniques.” The speed and forceful clarity of this single act put an end, at the stroke of a pen, to what was perhaps the most heinous and reviled policy of the Bush years, restoring, in the process, a commitment to American values and to the Geneva Conventions—and redeeming, in an instant, some of the nation’s diminished moral stature on the international stage. 

Rendition and Secret Facilities

In the same executive order, Obama vowed to reform the practice of “extraordinary rendition,” in which suspects are flown to “black site” prisons or to third-country detention facilities, where they can be interrogated and held without trial. He committed to close the CIA’s black sites, and in April the agency informed congress that the facilities had indeed been closed.

But on rendition, the new administration was more cautious. In the executive order, Obama created a task force to study the tactic and insure that it not result in “the transfer of individuals to other nations to face torture.” In August, the administration announced that the CIA would continue to send captured individuals to third countries for detention and interrogation. The agency agreed to monitor the treatment of those detainees and insist upon “diplomatic assurances” from receiving countries that detainees won’t be tortured. 

This certainly marks an improvement, given that in years past the high likelihood of torture by authorities in these countries seems to have been the very point of rendition. But turning over individuals captured by the United States for interrogation in countries like Afghanistan or Egypt still creates a situation in which, all “diplomatic assurances” notwithstanding, abuses will be difficult to avoid. And just last month it emerged that at least one black site continues to operate—a windowless facility at Bagram Air Base in Afghanistan, known to the detainees held there as “the black jail.”

Detention/Guantanamo

Guantanamo is a kind of policy Rubick’s Cube, the single thorniest issue that Obama inherited from his predecessor.  From the beginning, he confronted the dilemma with clarity and resolve, announcing in January that he would shut down the facility by the end of the year. But the ensuing months revealed how complex and intractable a process that was, and in November the administration acknowledged that it wasn’t going to make the deadline. 

The question bedeviling the White House is what to do with the Guantanamo detainees, some of whom are surely innocent individuals mistakenly ensnared in a system that is anything but transparent, others of whom are among the most dangerous terrorists on the planet. When he came into office, Obama halted the military commissions that had been established to try Guantanamo detainees. But in May he announced that he would revive them. What’s more, he made clear that due in part to the interrogation tactics employed by the Bush administration, in at least some cases, there will be detainees “who cannot be prosecuted for past crimes but who nonetheless pose a threat to the security of the United States,” and that in those instances, a policy of indefinite detention will endure. 

At a glance, the news in November that five of the detainees, including Khalid Sheikh Mohammed, would be transferred to New York and tried in federal court, was a victory for the rule of law. But on closer inspection, the gesture seemed a bit ad hoc: over two hundred other detainees will either face military commissions or preventative detention. The trick with the rule of law is that this sort of pragmatic, split-the-difference compromise, in which a civilian trial is arranged only for those suspects that you know you can convict, hardly counts as full-throated adherence. To announce that a handful of high-profile detainees will be tried in federal court as a matter of principle has a certain symbolic value, to be sure. But when considered in light of the other detainees who will instead be subjected to the same Bush-era mechanisms of “wartime justice,” it rings hollow. 

State Secrets

Another key area in which the administration has backtracked from Obama’s fiery campaign rhetoric, is the state secrets privilege, which legislators and legal scholars agree was widely abused by the Bush justice department.  Despite Obama’s vow to curtail executive secrecy, his justice department has continued to invoke the privilege in a handful of ongoing cases, to a point where it was criticized by a San Francisco judge for doing so.

Attorney General Eric Holder spent his first months in office studying the use of the privilege, and in September, he announced a new set of guidelines that would govern when the privilege can be invoked in the future. Holder’s reforms should create more oversight and control in the form of self-policing by the justice department—which is a very welcome development. But as with so many of the problematic legacies of the Bush administration, this is, at heart, a separation-of-powers issue, and executive branch solutions simply won’t suffice. Real reform will come only in legislation that mandates comprehensive judicial review of state secrets claims. And it remains to be seen whether Obama will support that legislation.  

A New Year

In fairness to the administration, it is early days. And there is so much to undo. And many of the trickiest problems are legacy dilemmas that the Bush administration created. And in handling the economic crisis and attempting to reform healthcare, the White House has had to ration its energy—and its political capital. 

But Obama himself has written and spoken eloquently about the dangers of drift—that peculiar inexorability that can take hold when it comes to executive power and the prerogatives of national security. Candidate Obama saw that danger, saw the dysfunction it wrought in our political system over eight long years, and made a commitment to respect the rule of law, protect civil liberties, and put the nation back on track. 

It’s a commitment that President Obama should strive to honor in the coming years.

2009 YEAR IN REVIEW: Keefe on Civil Liberties from The Century Foundation.

Comments

[Bill]

I too had great hopes that the Obama Inauguration would herald a new era of progressivism, especially is the area of civil rights and liberties. I agree that it is still quite early in the administration but I am hoping that the pragmatist we now see on health care and climate change does not transfer to the area of civil liberties. The redirection in Afghanistan and the Christmas terrorist attempt on the flight to Detroit may put civil liberties well onto the back burner. I believe to my soul that we will be stronger if we concentrate on both our security and our ideals and it is my hope that our President holds strong to his campaign promises. We have come a long way from the abuses of the Bush era but certainly have a long

[Bonnie Calcagno]

Why did you omit any discussion of surveillance policy? This administration has kept in place the Attorney General Guidelines which rescinded anti-COINTELPRO regulations. Google: Bush surveillance program was massive by Pamela Hess, Jul 10, 2009. Go to my web site: www.theintrovertspeaks.com and see the results of rescinding anti-COINTELPRO regulations and keeping in place the massive surveillance operation of the Bush Administration. We need to use this latest event in the news to review not only Watch Lists, but the Domestic Surveillance and Privacy policies of this administration that Senator Feingold said deserve an incomplete in - cooperating with a review of domestic intelligence activities and authorities (www.feingold.senate.gov/ruleoflaw).

[craigmotyka]

first off this new administration has done nothing good for the country.. cap trade will destroy domestic coal and oil production and drive it offshore losing millions more jobs not to mention billions in higher taxes for the average american... the destruction of geneeral motors by not socializing it costing tens of thousands of jobs maybe more between all the dealership closings and division shut downs ..but hes willing to side with wallstreet and sign bailout legislation worth trillions of tax dollars giving it to the same banks that will reap quadrillions in interest payments our treasury makes to the federal reserve A PRIVATE CORPORATION! ... if any of this makes sense visit wearechangenewjersey.org learn the truth about is going on behind the curtain

Craig Motyka
craig@wearechangenewjersey.org