Center for Constitutional Rights (CCR) Assessment of the Obama Administration’s Record – Draft – PDF

2010 CCR Assessment of the Obama Administration’s Record

Obama: One Year Later. Change?

CCR’s Assessment of the Obama Administration’s First Year

Candidate Obama campaigned on a promise of change. For many, his election inspired hope that we would finally see an end to the secrecy, law-breaking and rampant abuse of executive power that characterized the Bush era. Immediately upon taking office, President Obama issued three executive orders announcing: the closing of Guantanamo within one year, the shuttering of secret CIA ‘black sites,’ ending illegal interrogation techniques and torture, and eliminating the numerous Bush administration directives that granted official approval for torture, cruel and inhumane treatment, and abuse. Unfortunately, a closer examination of each of these issues reveals a disturbing pattern of broken promises and false reforms.

Leading up to inauguration day, the Center for Constitutional Rights published policy recommendations detailing how Obama could repair much of the damage done to our laws and constitution during his first 100 days in office. Below is an updated report and CCR’s analysis of how the new administration measures up on these issues after one year in office. Follow the link in each headline for more detailed information and to learn more about CCR’s litigation and organizing work and how you can get involved.

Obama’s Guantanamo

January 11, 2010 marked the beginning of the ninth year of detention without charge or trial at Guantanamo Bay, Cuba. President Obama failed in his pledge to close the island prison, revived the unfair military commissions system, arbitrarily halted all transfers from Guantanamo to Yemen, and fought to keep habeas cases out of the courts. The transparency we were promised has been discarded. This is an anniversary that should not have come.

Preventive Detention [draft only]

President Obama has announced his intention to create a preventive detention scheme that only serves to move Guantanamo to the United States and give it a new name. Pointing to cases where detainees “cannot be prosecuted” presumably due to evidence tainted by torture, Obama has claimed executive war powers to arbitrarily decide which detainees may pose a threat in the future and to then hold them without trial, and potentially without end. Whether it’s in the form of an executive order or legislation, indefinite detention without charge, trial or due process goes against our most fundamental principles of justice and the rule of law.

Torture

The repudiation of the “enhanced interrogation techniques” including waterboarding, which Obama announced so quickly after taking office and the release of the infamous  torture memos of the Bush administration, are important first steps. However, Bush-era torture techniques persist through the 2006 amendments to the Army Field Manual making ending torture an unfinished promise.

Accountability for Bush Administration Officials

It is now clear that officials at the highest level of the Bush administration were involved in egregious and illegal actions, including the authorization of torture and other war crimes. Despite the fact that the prosecution of officials responsible for serious human rights abuses is required under both domestic and international law, President Obama has repeatedly indicated his reluctance to pursue prosecutions for these crimes, saying that he prefers to look forward rather than backward. Furthermore, the Department of Justice inquiry into CIA prisoner abuse is limited to investigating the agency’s lower-level employees and contractors. Responsibility for the torture program must not be laid solely at the feet of low-ranking CIA operatives. The Attorney General must appoint an independent prosecutor with a full mandate to investigate and prosecute those responsible for torture and other war crimes, as far up the chain of command as the facts lead.

Abuse of Executive Authority [draft only]

It has become clear that President Obama has no intention of returning to the people the power that he inherited from George Bush — continuing to rely on the 2001 Authorization for Use of Military Force to wield broad powers to wage an undefined and potentially unending “war” against terrorism. When Congress authorizes the use of military force, it must not be considered a blanket authorization for unchecked executive authority.

Rendition

In August, the Obama administration announced new transfer policy recommendations  that endorse the continued practice of rendition: the forced transfer of a person to another country to be detained, interrogated and possibly tortured. These “transfers” are conducted outside of any judicial process and circumvent internationally recognized procedures for arrest or extradition, basically amounting to government kidnapping. The recommendations also endorse relying on diplomatic assurances that transferred prisoners will not be tortured—a practice that has been proven to be ineffective. President Obama should immediately ban rendition entirely and abide by international standards that prohibit the transfer of people to countries where there are substantial grounds to believe they are at risk of being tortured.

Abuse of the State Secrets Privilege

The Obama administration is continuing Bush-era arguments and attempting to dismiss entire lawsuits brought by torture victims by invoking the state secrets privilege. In September, the Attorney General issued new policies governing the use of this privilege that purport to raise the standard governing what information can be protected. Unfortunately, these new procedures amount to nothing more than a promise that the executive will police itself. The judicial system can, and must, serve as a check upon the power of the executive, and as a mechanism for ensuring accountability for executive-branch abuses. Using the state secrets privilege to prevent judges from seeing the evidence in question is an end run around judicial review and an unacceptable shield for government lawbreaking.

Human Rights Abuse by Military Contractors [draft only]

President Obama has continued to support and expand the use of private military contractors in Iraq and Afghanistan and the percentage of contractors in both countries has risen since he took office. Obama opposed the inclusion of a ban on military contractors from participating in interrogations.

[this section still needs work]

Ghost Detentions [draft only]

Included in President Obama’s January 22 Executive Order regarding Interrogations is a promise to shutter CIA black sites “as expeditiously as possible” and to not operate them in the future. However, his administration has not released any information about the current status of U.S. government “black sites” and has implemented a Guantanamo style sham review process for detainees at Bagram in Afghanistan, some of whom were transferred there from other countries. The power of secret detention and enforced disappearance lies in its arbitrary and secretive nature. It is time for the United States to come clean about ghost detentions by releasing the identities and whereabouts of everyone it has detained in the “war on terror,” even if they have been released, transferred to another state or are deceased. [this section needs work]

“Material Support” Prosecutions

The Obama administration has continued to vigorously defend the use of material support statutes which make it a crime to provide support—including humanitarian aid, literature distribution and political advocacy—to any foreign entity that the government has designated as a “terrorist” group. These provisions amount to guilt by association, criminalizing many activities that have long been understood to be constitutionally protected. The Supreme Court will hear CCR’s challenges to the constitutionality of these provisions in the consolidated case of Holder v. Humanitarian Law Project in February 2010.

Protecting the Right to Dissent

At the September meetings of the G20 in Pittsburgh, we saw the Obama administration continuing the practice of deliberate and coordinated disruption of lawful political protests through heavy surveillance, brutal force and mass arrests that effectively suspend the First and Fourth Amendments and suppress the right to dissent. This administration has also continued and enhanced the use of “terrorism” prosecutions against animal rights and environmental activists, indicating that the “Green Scare” — the repression of environmental activists by designating them terrorists — continues in full swing.

Restrictions on Travel to Cuba

President Obama campaigned with the promise to ease the ban on U.S. nationals travelling to Cuba, and to engage in a dialogue with the Cuban government without “preconditions.” In March 2009, the Obama administration announced a roll-back of the restrictions on family-related travel which falls far short of lifting the travel ban in its entirety, since it leaves in place the restrictions on general travel to Cuba. The Cuba travel ban is a relic of unsuccessful Cold War policy and the Obama administration should discard it entirely and annul the penalties previously imposed against individuals under these restrictions.

Conclusion

After a full year in office, President Obama has failed to live up to his promises in many areas of critical importance, including: human rights, torture, rendition, secrecy and accountability. The Obama administration must act decisively to undo the grave damage to human rights and human lives, the rule of law and the U.S. Constitution wreaked by the previous administration. President Obama must take this opportunity to restore, protect and expand human rights, build a more just and equitable society within our borders and make the United States a more responsible member of the world community. The Center for Constitutional Rights will continue to push the President to show true leadership in undoing the shameful legacy of the Bush administration and to demand justice and real change in 2010.

Abuse of the State Secrets Privilege

During its tenure, the Bush administration sought to centralize power in the executive by any means necessary—both legal and extralegal—in order to carry out its policies without oversight by any other branch of government. In the name of the “war on terror,” the government spied on American citizens; tortured and abused detainees in Iraq, Afghanistan, Guantanamo and CIA “black sites”; overrode Congressional authority to regulate war; and carried out human rights abuses around the globe in defiance of U.S. and international law.

When these unconstitutional actions were challenged in court, the administration resorted more aggressively than any previous administration to invoking the “state secrets privilege,” attempting to prevent these challenges from ever being heard by a court of law. The government claims that this privilege allows the head of an executive branch department to preclude evidence from being produced on the grounds that it is secret information that would harm national security or foreign relations interests if disclosed.

Instead of employing the privilege solely to limit access to classified evidence (as it was used in the past), the Bush administration used the state secrets privilege far more than any administration in history to ask courts to dismiss cases outright, turning the privilege into a tool for covering up government abuses and criminal activities and for blocking embarrassing disclosures. This abuse of the state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, in which independent judges make evaluations based on the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

Despite President Obama’s campaign pledges to halt abuse of the state secrets privilege, in its first real test case the Obama administration chose to continue the Bush administration’s practice of secrecy before justice. In the case, Mohamed v. Jeppesen Dataplan, Inc., five victims of extraordinary rendition, including former Guantanamo detainee Binyam Mohamed, filed suit against a flight-planning company and subsidiary of Boeing that is alleged to have served as the CIA’s contractor for its program of extraordinary rendition, assisting with flying the plaintiffs to secret sites in various countries where they were tortured. The Justice Department lawyer who appeared on behalf of the government in the case stated that the change of administrations had not changed the government’s position, continuing to argue for the case to be thrown out because the entire subject of the lawsuit is a “state secret.”

In September, the Attorney General issued new policies governing the invocation of the state secrets privilege that purport to raise the standard governing what information can be protected under the privilege. However, this new policy does not provide for judicial review of the evidence in question, thereby providing no meaningful check on the executive branch.

Under the new policy, the privilege could apparently be invoked to protect information that is not even classified, or is merely classified as confidential. It does not require the Attorney General or his assistant to evaluate the actual evidence to be privileged, but only to review a declaration submitted by the responsible department.

Regardless of who in the executive branch approves an assertion of state secrets, it is no substitute for the ability of a judge to review the underlying evidence itself. Judicial review is absolutely essential to ensure that the privilege is not abused. Without judicial review, a Department of Justice promise not to use the privilege to cover up lawbreaking or incompetence is simply a promise that the executive will police itself. Ironically, it was precisely that type of meaningless promise that enabled the myriad abuses that are currently the subject of the lawsuits that the Obama administration inherited and is now defending. The conspicuous absence of judicial review was a hallmark of the Bush administration, but it should not be a hallmark of this one.

President Obama must reverse dangerous legal positions taken by the Bush administration in cases brought by victims and survivors of government abuses, and he must end the practice of invoking the state secrets privilege to prevent judicial checks on executive power and accountability for executive branch abuses. Our system of checks and balances can only be effective if judges, and not only executive officials, can review evidence to evaluate whether it truly merits being shielded from disclosure.

CCR’s work in this area:

CCR’s case, CCR v Bush, challenging the NSA’s warrantless wiretapping program, also challenges the abuse of the state secrets privilege by the Justice Department. In this case, which is fundamentally about Americans’ right to be free of unchecked government surveillance, the government professed a need for secrecy in order to block any scrutiny of its own blatantly unlawful actions and asked the judge to dismiss the suit without reviewing the evidence. Another important case that has met with “state secrets” claims is CCR’s extraordinary rendition case, Arar v. Ashcroft.

Accountability for Bush Administration Officials

The unlawful activities of the Bush administration are now well documented, in many cases as a direct result of CCR’s litigation and early detainee representation. The evidence is clear that officials at the highest level of government were involved in egregious and illegal actions, including the authorization of torture and other war crimes.

President Obama has indicated his reluctance to pursue prosecutions for the crimes of high-level Bush administration officials, saying that he prefers to look forward rather than backward. But, by definition, accountability requires looking back, and both domestic and international law require the prosecution of officials responsible for severe human rights violations. Prosecuting the high-ranking former officials responsible for torture and other crimes can offer a measure of justice to the victims, re-establish higher standards for human rights protection, and provide the strongest possible deterrent against future administrations going down this dark path again. Prosecutions will also be a clear signal to countries around the world that the U.S. has drawn the line at torture.

President Obama’s decision to release four of the infamous “torture memos” was a step in the right direction. These documents, released in April 2009, make clear the involvement of Bush administration lawyers in authorizing torture. One of these lawyers, former head of the Office of Legal Counsel, Jay Bybee, is now a federal judge on the 9th Circuit Court of Appeals. Bybee is the author of one of the most chilling torture memos of the Bush administration, written expressly to attempt to provide legal cover for illegal activities—specifically, the use of torture, including waterboarding. A person who conspired to violate the Constitution and human rights should not be deciding critical questions of constitutional law.

In August, the Attorney General named Deputy U.S. Attorney John Durham to conduct an inquiry into the abuse of prisoners held by the Central Intelligence Agency. Already appointed by the Bush administration to investigate the destruction of torture tapes, his role has been expanded to consider whether a full criminal investigation of the conduct of agency employees or contractors is warranted. This mandate is too limited to ensure the complete and independent investigation that is needed.

Responsibility for the torture program must not be laid solely at the feet of a few low-level CIA operatives. While some agents in the field may have exceeded the broad rules ghoulishly laid out by attorneys who twisted the law to create legal cover for the torture program, the scope of any investigation must include senior government officials who were responsible for directing, approving, or authorizing the use of such techniques. President Obama must direct the Attorney General to appoint an independent prosecutor with a full mandate to investigate and prosecute those responsible for torture and war crimes, as far up the chain of command as the facts lead.

Since the first public revelations about the Bush administration’s torture program, the Center for Constitutional Rights has been working to hold high-level officials and their lawyers accountable for their crimes. Using the principle of universal jurisdiction, CCR has thus far tried three times, twice in Germany and once in France, to bring criminal cases against former Defense Secretary Donald Rumsfeld, former CIA director George Tenet, and former White House Counsel/former Attorney General Alberto Gonzales and others who were part of the torture conspiracy. The Center has also published a book, The Trial of Donald Rumsfeld: A Prosecution by Book, that lays out the evidence that Rumsfeld and other high-level members of the Bush administration are responsible for war crimes and must be held accountable.

“Material Support” Prosecutions: Guilt by Association

The 1996 Anti-Terrorism and Effective Death Penalty Act made it a crime to provide “material support” to any organization designated by the U.S. State Department as a “Foreign Terrorist Organization.” Expanded by the USA PATRIOT Act, these provisions violate the First Amendment and amount to guilt by association by criminalizing support that is intended to promote the lawful activities of a designated organization.

These provisions criminalize wide-ranging forms of support, including the distribution of literature, engaging in political advocacy, participating in peace conferences, training in human rights advocacy, and donating cash and humanitarian assistance, even when the assistance is intended solely to promote the lawful and non-violent activities of a designated organization. The statute does not require any showing of intent to further terrorist or other illegal activity, it is unconstitutionally vague, and it grants the Secretary of State overly broad discretionary power to designate groups as “terrorist” and turn their supporters into outlaws.

CCR has been tackling material support legislation in court for nearly ten years, with a series of cases on behalf of the Humanitarian Law Project, a Los Angeles-based non­profit that advocates for the peaceful resolution of armed conflicts; and on behalf of Tamil-American aid groups which sought to provide tsunami relief in areas of Sri Lanka that are controlled by a designated organization. The Obama administration has defended the use of these provisions as vigorously as the Bush and Clinton administrations before it. The cases will be heard by the Supreme Court under the consolidated case name Holder v. Humanitarian Law Project on February 23, 2010.

Rendition

Upon taking office, President Obama issued an Executive Order regarding interrogations  that included the creation of a special task force to “study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture.”

However, in August, the Department of Justice announced that these new policy recommendations include procedures for ongoing forced transfers of prisoners to third countries for detention and interrogation, and that they permit reliance on diplomatic “assurances” from other countries that transferred prisoners will not be tortured. A portion of the recommendations regarding intelligence-community transfers remains classified.

It is unconscionable for the United States to arbitrarily arrest individuals in any country and then move them to a third country for the purpose of continued detention and interrogation without any legal procedure. This practice amounts to kidnapping and detention by proxy. Anyone in U.S. custody anywhere in the world must be afforded basic due process—including the right to challenge their detention, and any proposed extradition or international transfer, before a competent independent adjudicator.

The Convention Against Torture prohibits the transfer of an individual to a country where there are substantial grounds to believe they would be in danger of being tortured. As the case of CCR’s client Maher Arar has so vividly demonstrated, neither assurances from a foreign nation nor attempts to monitor a detainee’s treatment in a foreign nation can prevent torture. Mr. Arar was rendered to Syria., which purportedly provided some sort of assurance, yet he was tortured; and he was threatened with worse if he disclosed to Canadian officials how he was being treated. It wasn’t until ten months into his ordeal that he broke down and told a consular official that he was being tortured. The Obama administration must not rely on so-called “assurances” and “monitoring,” which have proven to fail in the past.

President Obama began his administration with promises to end torture and to bring U.S. detention policy in line with the law. However, the hope inspired by those positive first steps has faded as the Obama administration has embraced a detention policy that is far too similar to that of the Bush administration.

For more information about CCR’s client Maher Arar, download a fact sheet or visit this case page.

Restrictions on Travel to Cuba

President Obama campaigned with the promise to ease the ban on U.S. nationals travelling to Cuba and to engage in a dialogue with the Cuban government without “preconditions.” In March 2009, the Obama administration announced a roll-back of the restrictions on family-related travel and, several months later, the Department of Treasury promulgated new regulations. The changes stop short of lifting the travel ban in its entirety, leaving in place the restrictions on general travel to Cuba.

The United Nations has condemned the U.S. embargo of Cuba for 18 consecutive years. Independent government reports have criticized the amount of resources devoted to enforcement of the embargo and Secretary of State Hillary Clinton has admitted that U.S. policy toward Cuba has “failed.”

Today, most countries have diplomatic relations with Cuba, and only the United States prohibits its nationals from travelling to the island nation. U.S. nationals are not prohibited from visiting any other country, including those that are subject to other U.S. sanctions regimes—for example, North Korea, Iran or Sudan. There is increased public support, including among Cuban-Americans, for lifting the travel restrictions entirely and allowing travel to Cuba for all. The Cuba travel ban is a relic of unsuccessful Cold War policy kept alive by electoral considerations and not rational foreign policy or national security concerns. The Obama administration should lift the travel ban entirely and annul the penalties previously imposed against individuals as part of the travel ban.

Since 1997, CCR has worked to rescind the travel restrictions enforced as part of the embargo and has represented over 425 individuals accused of violating the travel ban. CCR publishes Know Before You Go: A Guide for Travelling to Cuba, and is challenging the procedures by which the Department of Treasury investigates suspected travel to Cuba in our case, Sanders v. Szubin. More information is available on our Cuba Travel Project webpage.

Torture

An important provision in the January 22, 2009 Executive Order regarding Interrogations  was repudiating the numerous executive orders and opinions issued during the Bush administration that granted official approval for torture, cruel and inhuman treatment, and abuse. The order explicitly affirmed the applicability of the Geneva Conventions to all persons in U.S. custody who are detained in any armed conflict and limited interrogation techniques to those allowed in the Department of Defense Army Field Manual (AFM).

While this executive order certainly represents an extraordinary step forward, the current version of the Army Field Manual authorizes numerous brutal interrogation techniques that amount to torture. The persistence of these Bush-era torture techniques, combined with Obama’s refusal to seek prosecutions for those responsible for designing and overseeing the illegal torture program, makes ending torture an unfinished promise.

While the current Army Field Manual does not allow waterboarding or many other torture techniques adopted by the Bush administration, it still condones an array of techniques that constitute torture. The manual was revised in 2006, in part as an attempt to legitimize some of the abuses taking place at Guantanamo and elsewhere. It includes a new section, Appendix M, which applies only to so-called “unlawful enemy combatants,” a term used to describe detainees in Guantanamo and elsewhere that was not a recognized designation under U.S. or international law prior to being introduced by the Bush administration in 2002 and later incorporated into the Military Commissions Act of 2006. This appendix allows such techniques as prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners. These techniques, especially when used in combination as permitted by these guidelines, can cause long-lasting psychological and physical harm and constitute cruel, inhumane and degrading treatment, and in some cases, torture.

Other techniques in the Army Field Manual allow U.S. interrogators to pretend to be from another country, or to pretend the prisoner is located in another country (including nations known for torture and abuse), and to use “Fear Up”—a procedure designed to psychologically exploit prisoners’ existing fears and to induce “new fears” in prisoners. This administration should remove Appendix M from the Army Field Manual entirely, and rewrite the rest of the document to remove abusive and illegal techniques.

President Obama has repeatedly indicated his reluctance to pursue prosecutions for the senior Bush administration officials who orchestrated and implemented the U.S. torture program, and he has even welcomed some of the conspirators into his administration. The current Department of Justice inquiry into CIA prisoner abuse is limited to investigating the agency’s low-level employees and contractors. While the torture program was created by the Bush administration, to date it has been the Obama administration that is ensuring impunity for the most powerful people responsible for these crimes. We will not be free of the dangerous legacy of torture until we hold those responsible for torture accountable, and thus show the world that these crimes will not be tolerated. Only criminal prosecutions will unequivocally demonstrate to future government officials that if they torture, they too will be held accountable.

Since the first public revelations of the Bush administration’s torture program, the Center for Constitutional Rights has been working to hold high-level officials and their lawyers accountable for their crimes. CCR has tried three times—twice in Germany and once in France—to bring criminal cases against former Defense Secretary Rumsfeld, former CIA director George Tenet, former White House Counsel/former Attorney General Alberto Gonzales, and others who were part of the torture conspiracy. The Center has also published a book, The Trial of Donald Rumsfeld: A Prosecution by Book, that lays out the evidence that Rumsfeld and other high-level members of the Bush administration are responsible for war crimes and must be held accountable.

CCR is continuing to pursue torture Freedom of Information Act (FOIA) litigation charging the Department of Defense and other government agencies with illegally withholding records concerning the abuse of detainees in U.S. military

custody. Information about the role of private contractors in the U.S. torture program is available in CCR’s factsheet on corporations and torture in prisons in Iraq.