Obama and the Future of the Imperial Presidency: Abuses of Power and Redressing the Wrongs of the Bush Administration – New York Society for Ethical Culture Advocacy Forum – Speech Notes – PDF

2009 Obama and the Imperial Presidency Speech Notes

Ethical March 25 2009

Changes—half way measures; half full or empty

Crawling out of a dark pit—

Rolling back the practices—where are we–

Gitmo 2 baskets 3 baskets; ec definition; bagram habeas; special courts;

Secret sites; extra. Renditon; torture—afm annex m; cia

Repairing the Damage and Making Sure they don’t happen again—accountability

Truth/justice damges/reparations and proseuctions

Civil cases—state secrets/ immunity; bad

lahey; immunity; turn page bad

prosecutions—pic of obama; –ness—higher ups; look forward

Legal obligaiton as well

make the demand;

BOOK—the pros of donald rumsfeld a trial by book

mca—civil and criminal–

Diavowing the power—repudiating it; nowhere—just finds other sources

Saying memos no longer in effect not enuff; need to say pres. not have power to disregard proh on torture; set up special cts; cidt—

–changing practice without disavowal–Ec-definition —al marri ec;

Signing statements?

CCR what to do—on line petition; lahey letter; 100 days; book;

Obama and Future of Imperial Presidency: Abuses of Power and Redressing the Wrongs of the Bush Administration—

Focus esp on torture and detention issue—broad assertions of exec power to ignore const and law

(new memo + more)

  1. give you a quick status—-where are we some 2 months in—torture detention issues—
  2. Accountability–
  3. Doing something about it

Rough 7 or 8 years–unrelenting—dark pit–all these issues—Torture to gtimo to rendition to speical trials—-

Like to believe we have turned a corner–half full or half empty—much more—-real battle–forces arrayed against us—don’t just expect it without work

Gitmo –240 remain—

Executive Order: close in a year:

  1. But how close: CCR plan–2 baskets or 3 baskets—focus on that–­No place for it; erosion of rights; repackages somewhere else
  2. in the interim—obama admin is defending a detention scheme without trial

Just over a week ago–4 o’clock press release—bush tactic—DOD withdraws ec definition–

Drops enemy combatant and no longer exec power—all think great news

But read the briefs—now called: members of enemy forces and members of opposing forces—

And guess what—definition of who can be held indefinitely—almost the same except for one word—substantially in front of supported—

As to power—no longer says cc power but statute—just read broadly-not give up the power—key not repudiate it—-

Old wine new bottles—lets hope —not the end of the story—

bottom line of all this —at least for now —preventive detention auth—fight it

1A. Other Prisons Bagram and habeas—so far the same—insisit on habeas

  1. —military commissions—rump trials —7 years

are we going to go back to regular trials—fed or ucmj cts martial—

Not clear—

Yes in an EO–Military commissions stopped but only 4 months —

And a study to see how—again weigh in—no place—special trials

  1. Secret sites—-

you know what these are: cia run—water board; jane m dark side

“close expeditiously— and short term– transitory”

What does it mean trust cia better but still issues end all secret sites

(recent nyrb danner—icrc) tenet medal of freedom

  1. Extraordinary rendition eo—study and ensure no one rendered who can face torture–diplomatic assurance; but not renditions–go grab across border with force and violence–no renditon
  2. Torture Program—assume don’t need to detail–thinner red cross; along with jane mayer and phillipe sands—and memos—survivors

what has Obama done—

  1. EO Bans torture and Geenva —-Applies AF

But: Wiggle room for CIA and study commission see panetta ticking time bomb

But AFM and Annex M enemy combatants isolation sensory and sleep dep.

So torture is or cld be still a problem

See recent new yorker piece on long term solitay—not just gitmo–(get rid of annex m—no enhanced techniques); no speical auth cia

Clearly a start on the practices but no means an end; and while not claim the same executive power as Bush—does not reputdiate it

And what of accountabiluty for these practies especially torture a nd extraordinary rendition—??

By accountability I include— Getting out the truth; justice and reparations to those injured; and prosecution of the authors and architects of the torture program—to deter those who wld torture again

  1. Civil Cases related to these practices:–torture/extra rendition Bush Blocked the lawsuits and now the Obama admin has—
  2. State secrets—stop a lawsuit—can be held up –jeppesen Recently obama same positon—judge was surprised—binyan!Mohamed—uk case —harm —
  3. Other ways to stop lawsuits qualified immunity—rasul v bush; padilla v yoo; arar v ashcroft ; legal advice argument
  1. Accountabilty by investigaiton and prosecution

CCR positon—coming around as more and more

Book—prosecution of donald rumsfeld–

Obligation to invest prosecute and punish–

  1. Best picture for my on why crim invest + prosecution is ness is obama on jm 22 signing orders—afm to all agencies; more or less—

Impt day–

But what does it tell us–next president-

  1. Obama and looking forward —
  2. A couple of months ago—never thought ; in the wind—growing—polls etc

2/3 crim invest/indept panel maj—criminal —

As Major Gen. Antonio M. Taguba, who investigated the Abu Gharib scandal for the Pentagon, declared: “There is no longer any doubt as to whether the current [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Nyrb report: table of contents

  1. —we know the key officials—go after the top—torture team

By torture team I mean primarily some of the key architects of the torture program—members of the principals committee bush cheney tenet Rumsfeld

War council–yoo addinton Haynes Gonzales flanigan by actively participating in a five-man War Council that planned War on Terror legal strategy­–legal advice but more —

  1. Prosecution ness as I said to deter in the future—moral and example—

But also because it is the law: CAT; states obligation; invest pro and punish

  1. Excuses: a. criminalizes a policy difference; it is not. The torture policy was already criminal.

b. potential defendants where acting in our best interest. That does not absolve them. It is the excuse made by torturers in every country of the world. If laws can be broken based on “best interests,” we are living in a lawless world —

  1. golden shield —legal excuses—prosecutor look into—(conspiracy—aid and abet)

There can be no excuses–

  1. 1-low done? Crim invest—speical or independent

Need mca repealed


10.—Suggestions for an inquiry short of prosecutions—

  1. Most prominent of which is Leahy—truth commissions—Whitewash—said as much; 1. immunity; 2 expose and turn the page

3.Fixated on prosecution—same page —4. Mistakes and learn from errors—

Must be rejected—impunity; not some fragile democracy—as in Latin America—and even there—commission avoid what obligated do under treaty

Ccr website—letter

  1. Suggestions other type —can be______ role if no immunity—and seen as a step; not as avoidance mechanism—prosecutor at same time

Survivors and victims play a role—

Some have argued not politically possible—certainly not if we don’t demand it -­that is what we must do—never get more then we ask for—or demand—changing

[document is missing page 7]

article 6 1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to

  1. First steps by US to get off page of torure—

eo’s but not enuff; loopholes; some in the orders eg annex m; some by statute—limits

on common article 3—

(give you more—rendition; ec’s; military commis; habeas bagram;

  1. Major obstacle in accountability is lack of will by US—yes a number of legal obstacles we have described—but a commitment to accountability for crimn invest to reparations would overcome many of them—

We have the criminal stat.—still a core left-2241 war crimes; 2340 and 2340a anti torture stat. —a lot of narrowing etc. but with political will overcome–

So when we hear —from US govt: look forward and not back—hearing that lack of will—

A misunderstanding of what is required and the role accountability plays—

It is looking forward —accountabilty and esp criminal invest is how we deter in the future-

Otherwise next govt. president can take back what this govt has done—

Or on Wed: Holder: We will let the law and the facts take us to wherever we go,” Holder said. But he added that the administration does not want to criminalize policy differences.

Holder said the department is “mindful” of recent news accounts. (danner) But when asked whether there was a formal Justice Department investigation, Holder said, “I wouldn’t say that.”

Impt to forcefully remind the US of its obligations under intemationl law-­To do otherwise grant impunity violate our obligations

  1. Some of the Obstacles to accountability—in the US—by courts, executive or statute–

Amt to immunity for serious human rights abuses—civil and criminal–outlined in detail—some sense—

  1. Provisions in MCA (2006) need to be repealed: (note 26) civil and criminal
  • No person invoke geneva as source of rights—habeas or civil (sec 5)
  • No alien ec’s writ of habeas corpus;
  • no aliens use cts to challenge lawfulness of “detention, transfer, treatment, trial, or condtions of confinement” (no habeas—already unconst at to gtimo); no damges cases even for torture)
  • 7(b) makes retroactive—(no challenges) to sept 11, 2001 as to war crimes, crimes against humanity and other human rights abuses
  • Repealed portion of War Crimes Act that criminalized all violations of Common Article 3 removes the prohibition on “outrages upon personal dignity, in particular humiliating and degrading treatment.” In its place, the Military Commissions Act prohibits “cruel or inhuman treatment.” (much narrower-­”intended to inflict severe or serious physical or mental pain or suffering) (P.L. 109-366, Sec. 6(b)(1)(A)(retroactive to nov 26 1997)—so what would be war crimes before are no longer
  • Allows just folloing orders/legal advice– defense for war crimes and other major human rights abuses—(look up proviiosn)
  1. US position in litigation obstacles to truth justice and reparations—cases to expose what occurred, declare it illegal and begin to make whole—

This admin has continued the obstacles the last admin way of these cases–

  • State secrets—jeppesen—redntion–ends it even if publicly known—only place not discussed is the courtroom—judges reaction
  • Qualified immunity—even from allegations committed torture—CCR case—Rasul v Bush—Claim law against torturing people at gitmo not clearly established—again this admin same positon; likewise in Padilla v Yoo a qualified immunity defense +he was only giving legal advice when allegatons much stronger;
  1. Statutes of Limitation that would prevent investigation, prosecution and punishemnt elimianted or tolled (page 17—notes 47/49—commison and cat)

Anti torture stat.-8 years if no death-2340 and 2340a (18 use 3286(b))

War crimes stat. 2441

Conspriacy-5 years –last overt act—

There is Only a Little More than a Year Left in the Statute of Limitations Period for Certain Alleged Crimes of Torture: Torture and abuse of Abu Zubaydah in the spring and summer of 2002, prior to the issuance of the August 1, 2002 OLC opinions. The eight-year statute of limitation period for Anti-Torture Act will expire in spring 2010. prosecutor has only a little more than a year from today to bring charges for some important and well-documented alleged torture or abuse incidents.

  1. Bilateral immuniy agreements and ICC

100 countries prohibit sending to icc —can result in no military or economic aid

(american servicemens protection act repealed)

Nethercutt amend—withdrawn and suspendion of US BIA policy

Sign and ratify ICC

Obstacles—concclusion –will; repeal; positons in court

  1. Some Discussion of Accountbilty Mechanisms—Summary -fuller discussion

Criminal Investitions and Prosecutions if Warranted

Indispensible no matter what other mechanisms employed:

deter future human rights violatons (not toletarte or repeat); provide justice to victims and punish—otherwise impunity and a future where abused can and will be repeated

US support gallup; some members of congress—but Obama admin—

Commison has already expressed itself on this before —asked US to investigate prosecute and punish—reiterate—in light of change and more info danner –CAT; commission rulings; geneva;

Other laws:

As to: Commissions of Inquiry— Presidential Commissions, Congressional Commissions; Hybrid Commissions, Truth Commissions—we outline problems—

Understand they Can play a impt role esp for survivors and victims stories, truth and reform

But not used as subtittues for civil and criminal liability or forestall or minimize calls for criminal liabilty

Criminal liablitly out front

Authority to refer for crim prosecuton

No immunity

Prosecutor involved so don’t harm chances for cimin prosecuton

The commission most p.r. in US —lahey —has none of these attributes and appears to be a substitute for crim prose:

  1. immunity; 2 expose and turn the page 3. Criticizes those fixated on prosecutions—4. Mistakes and learn from errors—but more is requd

Colleen Constello sum up—

Critical juncture—laws aginst impunity apply to the big and the small

Or justice jackson or simic

And diavow the unwritten understanding that crimes committed by the United States ask the Inter-am human rights commis to reaffirm

FOIA Litigation

Restitution, –including place of residence or another country
Financial Compensation


Satisfaction—truth and govt role

Repeal Mca amnesty and definintion of war crimes

Get rid of mili order number 1

Bought into some of worst myths no gwot but war



  1. Main Elements of the CIA

Detention Program

1.1 Arrest and Transfer

1.2 Continuous Solitary