The Obama Administration, Guantánamo, and Restoring America’s Standing
Last week, Barack Obama was interviewed by Steve Kroft of 60 Minutes and the following exchange occurred:
Kroft: There are a number of different things that you could do early pertaining to executive orders. One of them is to shutdown Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?
Obama: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm gonna make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.
Obama's statement was widely celebrated as evidence that he intends to act swiftly and decisively to end the Bush administration's most controversial detention and interrogation policies. But that reaction overstates the meaning and importance of what Obama actually said.
Obama's response to the question that was asked was perfectly satisfactory as far as it went. He was asked whether he intends to close Guantanamo and "change interrogation methods" and he answered "yes" to both. It would have been rather shocking if he had answered any other way. Could one even imagine Obama proclaiming that he intends to leave Guantanamo open or that he intends to leave unchanged Bush's interrogation programs?
But his answers, adequate though they may be, actually tell us relatively little about how Obama intends to address the most vexing and important questions in these areas. The intention to close Guantanamo and to ban torture are not policies; they are mere generalities, concepts, aspirations. Even George Bush paid lip service to both goals: "I would like to close the camp and put the prisoners on trial," Bush said. "We do not torture," Mr. Bush told reporters.
Obama's 60 Minutes statement leaves unresolved many of the overarching questions about the policy changes he will mandate in order to reverse the most extreme Bush abuses, including:
- Will he quickly order Guantanamo closed by Executive Order or merely implement an incremental policy designed ultimately to culminate in the closing of Guantanamo - months or even years from now - once all detainees there are tried and/or released?
- Will he abolish the military commissions established by the Bush administration and ensure that all Guantanamo detainees are entitled to full due process in American federal courts or proceedings governed by the Uniform Code of Military Justice?
- Will he take the advice of people such as Brookings Institutions' Benjamin Wittes and The Washington Post Editorial Page and create a wholly new, separate court for detainees with severely limited due process safeguards, or will he order that they receive the full panoply of due process rights?
- When Obama says that he will make sure that "we don't torture," how will "torture" be defined? Will all of the Bush OLC memos re-defining "torture" be withdrawn? Will Obama issue an Executive Order and/or continue to support a law compelling all agencies - including the CIA - to adhere to the interrogation guidelines set forth in the Army Field Manual?
Obama has previously signaled that he would take aggressive and positive action in all of these areas, though there are also some conflicting signs that create some uncertainty. As but one example, earlier this year, Obama expressed clear support for a bill that passed the Senate, but was vetoed by Bush, which would have compelled the CIA to abide by the Army Field Manual. Similarly, Obama unambiguously vowed to The Boston Globe's Charlie Savage late last year as follows:
As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.
Yet since then, John Brennan, Obama's top intelligence adviser (and until yesterday, the leading candidate to lead the CIA), explicitly questioned whether such a measure was desirable.
Moreover, Obama was one of the few Senate Democrats who not only opposed the Military Commissions Act - which authorized Bush's military commissions - but also went to the floor of the Senate to sponsor amendments that would have limited its reach and, if passed, would have likely caused the Bush administration to veto it. Obama's opposition to these military commissions was thus reflected not only by his words, but also his past actions. Yet key Obama adviser Cass Sunstein has, in the past, expressed support for Bush's military commissions.
Perhaps most encouragingly of all, Obama was one of only 15 Senators who voted against the confirmation of Gen. Michael Hayden as CIA Director, a confirmation that passed the Senate with 78 votes. In opposing the nomination, Obama cited the fact that Hayden was "the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight" and that "this is a program that is still accountable to no one and no law." Obama said he was voting against Hayden "to send a signal to this Administration that even in these circumstances President Bush is not above the law."
And, Obama explicitly told The Boston Globe's Savage that the President does not have the authority to eavesdrop outside the parameters of FISA. Yet here, too, his leading advisers - including Sunstein and Brennan - have a history of supporting Bush's wireptapping programs.
With some significant exceptions - most notably his reversal on FISA and telecom immunity earlier this year - Obama has evinced very good instincts on issues of executive power, torture, Guantanamo, the rule of law, and related matters. Merely holding him to the vows he made during the campaign will go a long way to restoring America's standing in the world and reversing many of the worst Constitutional abuses of the last eight years.
But closing Guantanamo should be the first step taken, and it should be taken very quickly and decisively. It is true that merely closing Guantanamo without further reforms - particularly the abolition of the military commissions - would be woefully insufficient. As the ACLU's Anthony Romero put it recently in an interview I did with him:
Shut it down, and shut down the military commissions, because it won't be good enough if you shut down Guantanamo, and then transfer the detainees and charge them under these trials, and use the same screwed-up rules of the military commission at Fort Bragg or Fort Myers or anywhere else. You've got to shut down the existing military commissions as well.
Still, though it would be a symbolic step above all else, and would by itself be inadequate, closing Guantanamo is a powerful and necessary signal to the world about the path the U.S. intends to take under an Obama administration, and it is the one most easily and most quickly effectuated. As the ACLU's Romero put it:
First day in office, George Bush passed an executive order repealing the Clinton executive order and imposes a global gag rule. So we got it; while the tool is there, I think we ought not to mistake the power of the president being able to exert that power.
President Bush opened up Guantanamo with a stroke of his pen. Do we really want to have to get into a morass of partisan politics and horse trading to close Guantanamo when one president with impunity and with bad motivations opened a prison camp with no legal rights, and now we're going to be squabbling over the procedural details to do the right thing?
There are many steps which President Obama will need to take to put the U.S. back on the path of basic liberties and human rights. But closing Guantanmo - decisively and immediately - will signal to the world that he is serious about fulfilling the multiple pledges he made to restore America's standing in the world.
© 2008 ACLU