On his first day in office, President Obama moved our nation miles ahead on the road to restoring its fundamental values by signing executive orders to close Guantanamo, halt the military commissions and end torture.
The ACLU, like millions of people the world over, cheered. The orders were an important first step toward restoring an America we can be proud of again. But we're not there yet, and there are some troubling signs that can't be ignored.
Upon close reading, the executive orders contained worrisome ambiguities. While they halted the military commissions, they left open the possibility of their revival in some form. They also banned torture but left open the future possibility for the CIA to use interrogation techniques not found in the Army Field Manual, the basis for legal interrogations by the military.
Knowing that our freshly minted president put together these orders with lightning speed, we took cautious note, but remained hopeful that once clarification came, so would reassurance.
This was not the first cause for concern. There had been others, like the retention of Defense Secretary Robert Gates. We couldn't help but wonder whether the "new Gates" had experienced a Road to Damascus conversion and was capable of adopting the new president's ideals. Our worries intensified when John Brennan was appointed Deputy National Security Adviser after being shot down for CIA Director because of his problematic civil liberties record. But while we took cautious note of these appointments, we decided to leave speculation aside.
Then came some increasingly troubling developments.
On Feb. 4, the British High Court ordered that documentation of the torture and rendition of Guantanamo detainee Binyam Mohamed must remain secret — not because releasing it would endanger national security, but because of a "threat" made by the Bush administration that disclosure would endanger intelligence sharing between the U.S. and Britain. The High Court said it was "difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters."
With the "threat" still in place, the Obama administration's reply, thanking the U.K. "for its continued commitment to protect sensitive national security information," spoke volumes. Not only did an administration that prides itself on transparency and accountability fail to condemn the withholding of information about an already well-publicized rendition program, but it applauded it without qualification.
Next was a Feb. 9 San Francisco federal court hearing in another case involving Mohamed in which he and four other rendition victims, represented by the ACLU, are suing a Boeing subsidiary for organizing the rendition flights that facilitated torture. A lower court threw out the lawsuit last year, indulging the Bush administration's improper use of the "state secrets" claim. Given Obama's stated commitment to transparency and opposition to torture and rendition, observers thought it was a given that his Justice Department would pull the plug on the over-broad state secrets claim in this case. Shockingly, a Justice Department lawyer stood up in court and fully adopted the Bush administration's position. To date, no torture victim has had his day in court.
Another cause for concern was the testimony of CIA Director Leon Panetta. At his confirmation hearing, Panetta cited the "ticking bomb" scenario, and left open the possibility that in certain circumstances the CIA could use abusive interrogation methods. He stated that agents who had committed torture, like waterboarding, will not be prosecuted if their actions were authorized by the Justice Department. In fact, Obama's Justice Department has yet to release critical memos believed to have authorized those actions under President Bush.
And just last week, Obama's choice for solicitor general, Harvard Law School Dean Elena Kagan, said she believes the government can hold suspected terrorists without trial.
We need President Obama to reassure Americans that these troubling signs are not indications that he's willing to compromise our fundamental principles. He must permanently end the flawed military commissions that allow evidence gleaned from torture, hearsay and coercion and are an assault on due process and the rule of law. These proceedings cannot be "modified" or "improved" — they must be scrapped — as in R.I.P.
Obama must ignore any advice from "split-the baby" advisers that encourage him to "retrofit" our established legal system to assure a certain outcome in admittedly difficult terrorism cases. And his administration should also stop defending the Supreme Court case of ACLU client Ali Al-Marri, in which the Bush administration claimed the extraordinary power to declare anybody it chooses, even U.S. citizens, "enemy combatants" and hold them indefinitely on U.S. soil.
Finally, President Obama must unequivocally commit to pursuing accountability for those who have authorized torture and other crimes. While his desire to move forward is understandable and necessary, it cannot be at the expense of upholding the law, which no one — not even the highest government officials — is above. Our government doesn't get to turn society's other cheek to admissions of torture and violations of law, especially when they come from officials like Guantanamo Convening Authority, Susan Crawford.
The full truth of the torture and abuse of the Bush administration will inevitably see the light of day whether it is in a month, a year or a century; the truth is always known in our America. But President Obama should not mar his historic legacy by colluding with the Bush abusers or by failing to demand accountability for the most egregious human rights violations perpetrated by any administration. A full investigation must be conducted, and if warranted, prosecutions carried out.
The ACLU remains hopeful that change has finally arrived. But restoring an America we can be proud of again cannot be done with half-steps, incomplete gestures or hesitancy. Hope realized is too hard won, and too easily lost.