Obama's Uneven Record on Bush's Human Rights Mess

      President Obama spent much of his acceptance speech last week [Sept. 6] taking credit for his efforts to clean up the mess of an economy that the Bush administration left for him. But he spent no time at all touting his work in cleaning up the human rights mess that the Bush administration left him with its anti-terrorism policies at home and abroad.
      Obama had good reason to pass over the subject because his record on those issues falls even farther short of what he promised in his 2008 campaign than what the country had hoped for on the economy. The newly inaugurated president started well back in January 2009 by issuing orders to rescind the Bush administration’s torture policies and to close the CIA’s secret prison sites. And he set a one-year deadline for making good on his promise to close the prison camp at Guantanamo Bay, Cuba, which then held about 245 foreigners suspected of being “enemy combatants.”
      For the human rights community that invested so much hope in the former constitutional law professor, it has been mostly downhill ever since. Guantanamo remains open, its inmate count reduced by less than one third to 168 today. The Pentagon and Justice Department have tweaked the inherited system of military commissions, but few trials have been held. The system remains “second-class justice,” according to C. Dixon Osburn, director of the law and security program at Human Rights First.
      The administration also continues to invoke the state secrets privilege to cut off judicial inquiry into the CIA’s previous “rendition” program of transporting suspected terrorists to other countries for out-of-sight, out-of-mind abuse or torture. And last week the Justice Department announced that it has given up on prosecuting any CIA agents for the torture and abuse of detainees.
      The Obama administration has also created its own civil liberties issues. It has used the Bagram Air Base in Afghanistan to hold suspected terrorists and argued —so far successfully — for blocking those prisoners from access to federal courts. And it has expanded the use of drone aircraft for targeted killing of suspected al Qaeda members with what Osburn and others say are too few safeguards and too little public accountability.
      Obama does not deserve all the blame for the uneven record. The broad bipartisan support for closing Guantanamo at the end of the Bush administration dissolved as members of Congress realized that the prisoners would have to be housed somewhere in the United States — possibly in or near their own districts. Republicans, sensing a good issue, and Democrats wary of a soft-on-terrorism label combined to bar transfer of prisoners to U.S. soil and to impose difficult-to-meet restrictions on transfers to other countries.
      The congressional action prevents the administration from bringing any of the Guantanamo prisoners to the United States for trial in civilian federal courts. Meanwhile, the military commission system at Gitmo remains a work in very slow progress. Still awaiting a trial date are Khaled Sheikh Mohammed, the alleged mastermind of al Qaeda’s Sept. 11, 2001, attack, and four accused co-conspirators. “If these were in our federal courts,” Osburn says, referring to the cases in general, “they would all be done and whatever the verdicts they would be looked at as worthy and legitimate.”
      Legal skirmishes continue, at Guantanamo mostly out of the spotlight. This summer, the Pentagon imposed new restrictions on lawyers’ access to Guantanamo prisoners despite a standing order on the subject from the federal district court in Washington. Under the new rules, prisoners could meet with lawyers only if they had a pending habeas corpus action challenging their detention; they also limited lawyers’ access to classified information.
      In an opinion aptly characterized by the New York Times’s Charlie Savage as “scathing,” U.S. District Court Judge Royce Lamberth threw out the government’s new rules as “an illegitimate exercise of executive power.” Lamberth, appointed in 1987 by President Ronald Reagan, said the new rules effectively gave the government the ability to delay or cut off the inmates’ access to lawyers. That access is all the more important, Lamberth explained, because the prisoners speak little if any English and have virtually no understanding of the U.S. legal system.
      The rules probably originated at Guantanamo, not at the Pentagon, but even their short life suggest that Guantanamo has dropped off the radar screen for Washington and perhaps for the nation in general. “People have ceased to care about Guantanamo,” Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, remarked in January on the tenth anniversary of the opening of the prison camp. The federal appeals court for the District of Columbia has sided with the government in most of the habeas corpus cases it has considered, and the Supreme Court has turned aside further appeals.
      In his acceptance speech, Obama naturally took credit for making progress in the war on terror that the Bush administration began. “Al Qaeda is on the path to defeat, and Osama bin Laden is dead,” Obama said. In a campaign focused on jobs and the economy, the president understandably saw nothing to be gained by taking credit for progress on human rights issues or promising to do more. That mess remains to be cleaned up, if ever.