Moments after Obama signed an executive order on Jan. 23 mandating that the prison at Guantánamo Bay be closed within a year, retired Maj. Gen. John Eaton, an Iraq veteran, declared that torture was the tool of "the lazy, the stupid, and the pseudo-tough. It's also perhaps the greatest recruiting tool that the terrorists have." It seemed that America's policy of human-rights abuse and indefinite detention might come to an end.
But since January, a number of the decisions made by the Obama administration have caused anxiety among human-rights advocates, who fear that the new president may indeed continue many Bush-era policies. Obama officials such as Attorney General Eric Holder, solicitor general nominee Elena Kagan, and Principal Deputy Solicitor General Neal Katyam have released statements endorsing the idea that terror suspects can be defined as "enemy combatants" and held "for the duration of hostilities" without trial.
The Obama administration also recently invoked the state-secrets doctrine to dismiss a civil suit against a Boeing subsidiary that plaintiffs contend aided the CIA in their rendition to countries where they were tortured. Prior to the Bush administration, the state-secrets doctrine was used to dismiss individual pieces of evidence, rather than entire lawsuits. Civil libertarians bristled at Obama's use of the doctrine in the same manner, and on Feb. 11, Sen. Patrick Leahy introduced a bill in Congress that would regulate its use. The administration's actions were in contrast to Obama's earliest executive orders mandating that all interrogations by U.S. government agents comply with the Army Field Manual and that the Bush administration's infamous "black sites" be closed. President Obama is walking a fine line between Dick Cheney's "dark side" and his own promise to not compromise American values in the name of national security.
"If you want to give the administration the benefit of the doubt, they are taking the six months they've been given to figure out what their position is going to be," says Sahr Muhammedally, a senior law associate at Human Rights First. "Or the other way of reading it is that they want to embrace the whole Bush position on detention."
In the view of human-rights activists, among the most disturbing actions recently taken by the Obama administration is the decision to continue with the Bush administration position that suspected terrorist detainees at Bagram Air Base in Afghanistan do not have the right to challenge their detention. The Bush administration position, which has thus far been maintained by the Obama administration, holds that because Bagram is located in "a zone of active hostilities," it is distinct from Guantánamo, so the ruling that granted Gitmo detainees a right to challenge their detention does not apply to Bagram.
"I think this is a difficult one to know exactly what's going on, particularly because they've only given a two-sentence filing," says Ken Gude, a human rights expert at the Center for American Progress. "I think it's important to recognize that no U.S. court ever has exercised jurisdiction over a military detention center on foreign territory in a battle zone. It's not surprising that they've taken this position."
Jonathan Hafetz, a lawyer for the American Civil Liberties Union who has represented several detainees, describes the government's position on Bagram and Guantánamo as a distinction without a difference, and worries that by maintaining Bagram as a legal black hole for detainees, the Obama administration will continue to hold terror suspects indefinitely without trial, even if Gitmo is closed. "The fact is that since this first Supreme Court ruling upholding Gitmo detainee's access to habeas corpus," Hafetz explains, "the administration stopped bringing people to Guantánamo and started bringing them to Bagram. The population skyrocketed."
All of the detainees involved in the hearing in which the Obama administration asserted the same position as the Bush administration were brought to Bagram from outside Afghanistan. "There's no difference other than that they were brought to Bagram instead of Guantánamo," Hafetz says.
"Many people sent to Guantánamo were sent for the wrong reasons, tribal rivalries and so forth," Muhammedally says. "I'm certain that there are a whole host of people like that at Bagram."
The Obama administration seems to be preparing for the prison to expand. The Christian Science Monitor reported on Feb. 12 that plans are underway to ensure that Bagram can hold as many as 1,100 prisoners. The number of detainees housed at Bagram remains unclear, as does the percentage of detainees who were captured outside of Afghanistan. A Defense Department official told ProPublica that more than 500 of the detainees there are from Afghanistan; The Christian Science Monitor reported that the prison holds more than 600 people.
The Obama administration's reasoning, that Afghan detainees can be held at Bagram indefinitely until the end of hostilities because they are enemy combatants, is also problematic, say human-rights advocates. The U.S. is not currently involved in an international armed conflict in Afghanistan, for which enemy combatants would have to be considered prisoners of war under the Geneva Conventions. Instead, the U.S. is engaged in a non-international armed conflict in a foreign nation, which means that civilians who take up arms have to be tried according to domestic law, in accordance with the International Covenant on Civil and Political Rights, of which the United States is a member. The Covenant states, "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." In reality, the status of detainees at Bagram is determined by confidential enemy-combatant review boards.
"There is a legitimate concern about detaining individuals," Muhammedally says, "but there has to be some way of challenging their detention."
The administration's policy on Bagram is not necessarily final. Among the executive orders Obama issued in early January was one ordering a review of detention-policy options by a special task force consisting of high-ranking administration officials, to determine the options for detaining suspected terrorists. The Center for American Progress' Gude is confident that the administration will come up with a "meaningful" review process for detainees, including redefining the term "enemy combatant" to prevent the detention process from being abused.
"For the purposes of identifying the category of individuals who can be lawfully detained by the military, the Bush administration's definition was incredibly broad," he says. "I think it's completely clear that [the Obama administration has] no intention of making the Bush administration's mistakes. They are not going to turn Bagram into Guantánamo's little brother. They closed Guantánamo for a reason."
At the heart of the issue with Bagram is the argument about whether terror suspects should be tried in civilian courts, rather than in the military commissions set up by the Bush administration.
"They've lost the confidence of the public," Eugene Fidell, a military-law expert, says of the military commissions. "It's time I think to finish them off."
"Without fairness, we're not going to get public acceptance of the results," Fidell says. "Here or anywhere." The goal, the ACLU's Chafetz says, should be trying terror detainees captured in Afghanistan in Afghan courts.
"The path should be on strengthening those institutions so they can do it better," Chafetz says. "Not on creating a shadow detention system." The final decision on detention will have to wait until the task force finishes its work and the administration develops a new detention policy. Until then, Obama will be walking along the edge of the "dark side."