Nov 27, 2008
Last week, Barack Obama was interviewed by Steve Kroft of 60 Minutes and the following exchange occurred:
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
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:
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?
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
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:
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:
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
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.
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
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.
© 2023 ACLU
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