Report Card on Civil Liberties

During his inauguration speech, President Barack Obama declared, "As for our common defense, we reject as false the choice between our safety and our ideals." These were words many Americans who voted for Obama longed to hear -- an acknowledgement that American security could not be purchased by shredding the liberties guaranteed by the Constitution of the United States.

In these first few months, the Obama administration has taken a number of positions on issues relating to civil liberties and the fight against terrorism. Below, we look at how the administration has handled its commitment to reversing the policies of the previous administration.

On Jan. 22, 2009, two days after having taken office, Obama issued an executive order instructing all agents of the U.S. government to follow interrogation procedures outlined in the Army Field Manual, which bans the use of "enhanced interrogation techniques." The executive order states plainly that individuals in U.S. custody shall "in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment)."

This is a marked change from the Bush administration's guidelines, which held that the "executive branch's constitutional authority to protect the nation from attack" trumped all legal and treaty obligations governing how detainees should be treated. The Bush administration's definition of torture "was so narrow as to allow almost anything," according to Ken Gude, an expert on human rights and international law at the Center for American Progress.

"This is the one area where I think we've seen the most change. There will be no gray areas; we've got a pretty clear standard," Gude says. By instructing adherence to the Field Manual, the administration has signaled "there will be no attempt to redefine language to allow things that people would generally consider torture, or cruel, inhuman or degrading treatment."

Verdict: Change we can believe in.

The same executive order that banned "enhanced interrogation" techniques also ordered the CIA to close the infamous "black sites" where detainees were interrogated and held without trial. It also prohibited the transfer of individuals to other countries to face torture, or transfers with the "purpose or effect" of undermining the United States' obligation to "ensure the humane treatment of individuals in its custody or control."

On April 9, CIA Director Leon Panetta issued a memo to Congress confirming that the black sites had in fact been closed but that the CIA retains the authority to detain individuals solely "on a short-term transitory basis." Gude explains that there is a difference between "extraordinary rendition," the process by which detainees were rendered to CIA "black sites" or to other third countries where they would likely be tortured, and "rendition," which is the transfer of detainees outside the normal extradition process. The purpose of extraordinary rendition, Gude says, is to keep suspects outside of the justice system, while the purpose of rendition is to transfer them into a country where they can be tried for their alleged crimes.

"The Obama administration has ceased the process of extraordinary rendition, but rendition exists as an option," Gude says, adding that it is not necessarily a bad thing. "There are times when it's not feasible for governments to follow the traditional extradition process, simply because cooperation between the United States and another government is not always possible."

On the other hand, the American Civil Liberties Union's Jonathan Hafetz who has acted as counsel in several cases involving terrorism detainees, cautions that even the CIA's limited detention authority may still lead to problems. "The suggestion that the CIA has authority to conduct extrajudicial handovers to foreign governments is ambiguous and troubling, as is the statement that the CIA can still conduct 'transitory' detentions."

Verdict: Change for the better, but questions remain.

Enemy Combatants/Detention Authority
The Bush administration took the term "enemy combatant" from a 1942 Supreme Court ruling, which upheld the military's authority to try several German saboteurs under military commissions during World War II. The Bush administration employed the designation to prevent detainees from seeking rights that they would be entitled to either as criminal suspects or prisoners of war.

In March, the Obama administration abandoned the use of the designation "enemy combatant" without relinquishing the authority to indefinitely detain individuals captured anywhere in the world without trial or charges. The only difference is that the Obama administration asserts that said authority comes from Congress' 2001 Authorization to Use Military Force, rather than the president's "inherent" authority as commander in chief. The administration wrote that it would only detain those who were "part of" or had provided "substantial support" to terrorist groups, but it did not clearly define what constitutes "substantial support."

Last Friday, the Obama administration doubled down on this claim of authority when it appealed a ruling by U.S. District Court Judge John Bates that held detainees at Bagram Air Force Base in Afghanistan who were captured in a third country are entitled to challenge their detention in civilian courts. "The courts are there as a check on the expansive claims of executive authority by any administration," says Sahr Muhammedally, a senior associate at Human Rights First. Muhammedally also cautions that detaining prisoners indefinitely without access to courts "is not the way to win the hearts and minds and cooperation of local Afghans."

"The Obama administration's abandonment of the term 'enemy combatants' for detainees at Guantánamo is largely window dressing. The administration thus far has continued to assert the legal authority to detain individuals indefinitely without charges based on the idea of a global 'war on terrorism,'" Hafetz says. "It has not abandoned the military paradigm that helped lead to the widespread abuses of power during the prior administration."

Verdict: More of the same.

Military Commissions
In the executive orders issued just after he took office, President Obama ordered a halt to the military commissions set up to try detainees at Guantánamo Bay. The commissions were widely criticized by civil libertarians, legal experts, and even military lawyers.

Lt. Col. Darrel J. Vandeveld was a prosecutor assigned to the Mohamed Jawad case before a Guantánamo military commission. Jawad was accused of throwing a grenade at an American convoy in Afghanistan. Vandeveld resigned in September 2008 after he felt the government had suppressed exculpatory evidence. Vandeveld concluded in a statement that "the chaotic state of the evidence, overly broad and unnecessary restrictions imposed under the guise of national security, and the absence of any systematic, reliable method of preserving and cataloguing evidence … make it impossible for anyone involved (the prosecutors) or caught up (the detainees) in the Commissions to harbor even the remotest hope that justice is an achievable goal."

"The administration needs to make a clear break with the past and make clear that treating terrorist suspects through the civilian criminal-justice system is not simply an option but a requirement under our laws and Constitution," the ACLU's Hafetz says.

Eugene Fidell, a military-law expert who teaches at Yale, told the Prospect in February that the military commissions "don't engender public confidence here, much less abroad, and it's time to finish them off."

The Obama administration is currently reviewing the status of all Guantánamo detainees, but it has not come to a conclusion as to how it will deal with those it believes are guilty of crimes. However, the administration's decision to appeal Judge Bates' ruling doesn't bode well for the future.

Verdict: Inconclusive.

State Secrets
During the election, Obama criticized the secrecy of the Bush administration, noting that it had invoked the "state secrets" privilege to dismiss entire lawsuits relating to warrantless surveillance, torture, and extraordinary rendition. In a written response to questions from Sen. Russ Feingold, Attorney General Eric Holder pledged to "ensure that the United States invokes the state secrets privilege only in legally appropriate situations."

Since taking office, the Obama administration has invoked the state-secrets privilege in three cases: Jewel v. NSA and Al-Haramain Islamic Foundation v. Obama, both involving the constitutionality of the government's warrantless surveillance program; and Mohammed v. Jeppesen Dataplan Inc., in which five men who were subject to extraordinary rendition are suing a Boeing subsidiary that they allege participated in their transfer to countries where they were tortured.

"The Obama administration campaigned hard on getting rid of the excessive secrecy of the Bush administration, so it's very disappointing to see them take the same line on state secrets," says Cindy Cohen of the Electronic Frontier Foundation. "I think a lot of people voted for Obama on the hopes that he would take a different position."

Two members of the administration, Vice President Joe Biden and Secretary of State Hillary Clinton, signed on to a bill in 2008 that would regulate the use of the privilege by giving judges authority on what constitutes a state secret. The bill was reintroduced in February by Feingold and Sens. Patrick Leahy, Arlen Specter, and Ted Kennedy. There is no word yet as to whether Obama will sign the bill if passed.

Verdict: More of the same.

Separate from the Obama administration's continued abuse of the state-secrets privilege is the "sovereign immunity" the administration asserted in documents filed in the Jewel v. NSA case. Sovereign immunity is the idea that the state cannot be sued unless it consents to the suit. The Bush administration had previously invoked "sovereign immunity" arguments to block judicial scrutiny of Foreign Intelligence Surveillance Act cases, but the Obama administration went further, arguing that the government is essentially immune from lawsuits involving wiretapping under any circumstances. In its motion to dismiss the lawsuit, the administration writes, "Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a 'person or entity, other than the United States.'"

This argument is "extremely troubling," Cohen says. "It means that even in a regular lawsuit, not involving terror but involving the government tapping you illegally, you would not be able to sue them."

"The Obama administration is arguing instead that you can only sue the government when they disclose a wiretap that was supposed to remain secret," Cohen continues. "The only protection the American people have is when the government decides it's done something wrong." What's the likelihood of that?

Verdict: Cheney on Red Bull.

General Disclosure
In March, Attorney General Holder issued new guidelines for Freedom of Information Act requests, directing the Department of Justice to err on the side of disclosure. The department would defend a refusal to disclose only if the disclosure could cause foreseeable harm to national security or law-enforcement interests or if disclosing the information is illegal. By contrast, the Justice Department under Bush erred on the side of not disclosing documents whenever legally possible. In early March, Holder released nine previously secret Bush-era memos from the Office of Legal Counsel (OLC) in response to FOIA litigation from the ACLU and other organizations. Among the memos was one written by John Yoo, which concluded that the president could ignore constitutional protections when fighting terrorism, even when it comes to American citizens.

Despite Holder's positive moves on FOIA requests, the administration has nevertheless invoked the state-secrets doctrine several times to avoid judicial scrutiny of government behavior. A huge test of the Obama administration's commitment to transparency comes today, the deadline for the administration to disclose another set of three memos written by Steven G. Bradbury, former head of the OLC. The deadline has been extended several times -- the administration agreed to disclose a fourth memo authored by former OLC lawyer Jay Bybee in exchange for the latest extension. Michael Isikoff reported in Newsweek that former Bush administration officials, as well as CIA Chief Leon Panetta and Deputy National Security Adviser John Brennan, have been fighting disclosure. Scott Horton also reported for The Daily Beast that congressional Republicans were attempting to prevent disclosure of the memos by filibustering Obama's legal appointments.

Whether the administration meets this deadline is a key signal for civil-liberties groups, says Jameel Jaffer of the ACLU. "The Obama administration is going to have to decide whether they're going to live up to their commitment on transparency or whether they're going to cover up the Bush administration's crimes."

Verdict: Inconclusive.

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