More
than five years after first taking office, the president's promises
deserve a re-write.
(Photo: Original Jim Crimmings / Flickr / cc /
re-purposed by Common Dreams)
In January 2009, Barack Obama
entered the Oval Office projecting idealism and proud to be the
constitutional law professor devoted to turning democratic principles
into action. In his first weeks in office, in a series of executive
orders and public statements, the new president broadcast for all to
hear the five commandments by which life in his new world of national
security would be lived.
Thou shalt not torture.
Thou shalt not keep Guantanamo open.
Thou shalt not keep secrets unnecessarily.
Thou shalt not wage war without limits.
Thou shalt not live above the law.
Five years later, the question is: How have he and his administration lived up to these self-proclaimed commandments?
Let’s consider them one by one:
1. Thou Shalt Not Torture.
Here, the president has fared best at living up to his own standards
and ending a shameful practice encouraged and supported by the previous
administration. On his first day in office, he
ordered
an end to the practice of torture, or as the Bush administration
euphemistically called it, “enhanced interrogation techniques” (EITs),
by agents of the U.S. government. In the president’s words, “effective
immediately” individuals in U.S. custody “shall not be subjected to any
interrogation technique or approach, or any treatment related to
interrogation, that is not authorized by and listed in [the] Army Field
Manual.”
No questioning of future terror suspects would henceforth be done
without using standard, legal forms of interrogation codified in the
American criminal and military justice systems. This meant, among other
things, shutting down the network of secret prison facilities, or “
black sites,” the Bush administration had established globally from
Poland to
Thailand,
where the CIA had infamously tortured its captives in the Global War on
Terror. With that in mind, Obama ordered the CIA to “close as
expeditiously as possible any detention facilities that it currently
operates and... not operate any such detention facility in the future.”
The practice of officially sponsored torture, which had, in fact,
begun to fall into disuse in the last years of the Bush administration,
was now to come to a full stop. Admittedly, there are still some issues
that warrant attention. The
continued force-feeding
of detainees at Guantanamo is a case in point, but state-sponsored
torture, justified by law, is now, as before the Bush years, illegal in
America.
The commandment banning torture has, it seems, lasted into the sixth
year of Obama’s presidency -- and so much for the good news.
2. Thou Shalt Not Keep Guantanamo Open.
On his first day in office, President Obama also
pledged to close the infamous Guantanamo Bay detention facility, home at the time to
245 detainees,
within a year. The task proved politically impossible. So today, the
president stands pledged once again to close it within a year. As he
said in his
State of the Union Address
last month, “this needs to be the year Congress lifts the remaining
restrictions on detainee transfers and we close the prison at Guantanamo
Bay.” And it’s possible that, this time, he might actually do so.
In June 2013, the president appointed former Clinton White House
lawyer Cliff Sloan as special envoy in charge of closing Guantanamo.
After a long period in which the administration seemed stymied, in part
by Congress,
in its efforts to send detainees approved for release home or to a
third country, Sloan has overseen the transfer from the island prison of
11 of them. He is now reportedly working to transfer the less than 80
remaining individuals the Pentagon has cleared.
But there’s a catch. No matter how many prisoners Sloan succeeds in
releasing, President Obama has made it clear that he only means to close
Guantanamo in the most technical sense possible -- by emptying the
current facility in one fashion or another. He is, it turns out, quite
prepared to keep the Guantanamo system of indefinite detention itself
intact and has no intention of releasing all the detainees. Those who
can’t be tried -- due, it is
claimed,
to lack of evidence -- will nonetheless be kept indefinitely somewhere.
Fewer than 50 prisoners remain behind bars without charges or trial
until -- as the formula goes -- the authorities determine that they no
longer pose a risk to American national security.
Although the
population is indeed dwindling (Gitmo
currently holds
155 detainees), the most basic aspect of the system, the strikingly
un-American claim that suspects in Washington’s war on terror can be
held forever and a day without charges or trial, will remain in place.
In other words, when it comes to his second commandment, the
president will be able to follow it only by redefining what closure
means.
3. Thou Shalt Not Keep Secrets.
The first issue that Obama
singled out
as key to his presidency on his initial day in office was the necessity
of establishing a sunshine administration. Early on, he tied his wagon
to ending the excessive secrecy of the Bush administration and putting
more information in the public arena. Bush-era policies of secrecy had
been crucial to the establishment of torture practices, warrantless
wiretapping, and other governmental excesses and patently illegal
activities. Obama’s
self-professed aim
was to restore trust between the people and their government by
pledging himself to “transparency” -- that is, the open sharing of
government information and its acts with the citizenry.
Transparency, he emphasized, “promotes accountability and provides
information for citizens about what their government is doing.
Information maintained by the Federal Government is a national asset.
My administration will take appropriate action, consistent with law and
policy, to disclose information rapidly in forms that the public can
readily find and use.” Towards that end, the president made a first
gesture to seal his good intentions: he
released a number of previously classified documents from the Bush years on torture policy.
And there, as it happened, the sunshine ended and the shadows crept
in again. In the five years that followed, little of note occurred in
the name of transparency and much, including a
war against whistleblowers
of every sort, was pursued in the name of secrecy. In those years, in
fact, the Obama administration offered secrecy (and its spread) a
remarkable embrace. The president also sent a chill through the
government itself by
prosecuting seven individuals who saw themselves as whistleblowers, far more than all other presidents combined. And it launched an
international manhunt to capture Edward Snowden, after he turned over to
various journalists secret National Security Agency files
documenting its global surveillance methods. At one point, the administration even arranged to have the Bolivian president’s plane
forced down over Europe on the (mistaken) assumption that Snowden was aboard.
After the drumbeat of Snowden’s revelations had been going on for months, government officials, including the president,
continued to insist that the NSA’s massive, secret, warrantless surveillance techniques were crucial to American safety. (This was
denied
in no uncertain terms by a panel of five prominent national security
experts Obama appointed to examine the secret documents and propose
reforms for the NSA surveillance programs.) Spokespeople for the
administration continued to insist as well that the exposure of these
secret NSA policies represented harm to the nation’s security of the
most primal sort. (For this claim, too, there has still been no proof.)
Before Snowden's revelations about the gathering of the phone
metadata of American citizens, Director of National Intelligence James
Clapper evidently had
no hesitation in lying to a congressional committee on the subject. In their wake, he
claimed
that they were the “most massive and most damaging theft of
intelligence information in our history.” Certainly, they were the most
embarrassing for officials like Clapper.
By 2014, it couldn’t have been clearer that secrecy, not
transparency, had become this government’s mantra (accompanied by vague
claims of national security), just as in the Bush years. One clear
example of this unabashed embrace of secrecy came to light last month
when that presidentially appointed panel weighed in on reforming the
NSA. While constructive reforms were indeed suggested, the idea that a
secret court -- the FISA court -- could be the final arbiter of who can
legally be surveilled was not challenged. Instead, the reforms suggested
and accepted by Obama were
clearly aimed at strengthening the court. No one seemed to raise the question: Isn't a secret court anathema to democracy?
Nor, of course, has secrecy been limited to the NSA. It’s been a hallmark of the Obama years and, for instance,
continues to hamper
the military commissions at Guantanamo. Their hands are tied (so to
speak) by the CIA’s obsessive anxieties that still-classified material
might come out in court -- either the outdated information al-Qaeda
figures detained for more than a decade once knew or evidence of how
brutally they were tortured. Perhaps the most striking example of
government secrecy today, however, is the
drone program. There, the president continues to
insist
that the Justice Department documents offering “legal” authorization
and justification for White House-ordered drone assassinations of
suspects, including American citizens,
remain classified, even as administration officials
leak information on the program that they think will make them look justified.
On the commandment against secrecy, then, the president has decidedly and defiantly moved from a shall-not to a shall.
4. Thou Shalt Not Wage War Without Limits.
At the outset of Obama’s presidency, the administration called into
question the notion of a borderless battlefield, aka the globe. He also
threw
into the trash heap of history the Bush administration’s term “Global
War on Terror,” or GWOT as it came to be known acronymically.
This January, in his State of the Union address, the president stated
his continued aversion to the notion that Washington should pursue an
unlimited war. He was speaking by now not just about the geography of
the boundless battlefield, but of the very idea of warfare without an
endpoint. “America,” he counseled, “must move off a permanent war
footing.” Months earlier, in speaking about the use of drone warfare,
the president had
noted
his commitment to pulling back on the use of force. "So I look forward
to engaging Congress and the American people in efforts to refine, and
ultimately repeal, the [Authorization for the Use of Military Force’s]
mandate."
Despite the president’s insistence on placing limits on war, however,
his own brand of warfare has helped lay the basis for a permanent state
of American global warfare via “low footprint” drone campaigns and
special forces operations
aimed at an ever morphing enemy usually identified as some form of
al-Qaeda. According to Senator Lindsey Graham, the Obama administration
has already
killed 4,700 individuals in numerous countries, including Pakistan, Yemen, and Somalia. It has
killed four U.S. citizens in the process and is
reportedly considering
killing a fifth. The president has successfully embedded the process
of drone killings in the executive branch in such a way that
any future president will inherit them, along with the White House “
kill list” and its “terror Tuesday” meetings. Unbounded global war is now part of what it means to be president.
On the commandment against waging limitless war, then, the president has visibly failed to comply with his own mandate.
5. Thou Shalt Not Live Above the Law
At the outset of his presidency, Obama seemed to hold the concept of
accountability in high regard. Following the spirit of his intention to
ban torture, his attorney general, Eric Holder, opened an
investigation
into the torture policies of the Bush years. He even appointed a
special prosecutor to look into CIA interrogation abuses. Two years
later, though, all but two of the cases
were dropped without prosecution. In 2012, the final two cases, both involving the deaths of detainees, were
dropped
as well on the grounds that there was insufficient evidence “to obtain
and sustain a conviction beyond a reasonable doubt.” Nor was there any
appetite inside the administration for prosecuting the Bush-era Justice
Department lawyers who had drafted the “torture memos” providing the
bogus justifications for applying torture techniques such as
waterboarding in the first place.
Not punishing those who created and applied the policy was clearly a
signal that no acts committed as part of the war on terror and under the
rubric of national security would ever be prosecuted. This was, in its
own way, an invitation to some future presidency to revive the torture
program. Nor have its defenders been silenced. If torture had been
considered truly illegal, and people had been held accountable, then
perhaps assurances against its recurrence would be believable. Instead,
each and every time they are given the chance, leading figures from the
Bush administration defend the practice.
In former CIA Director Michael Hayden’s
words, "the fact is it did work." Marc Thiessen, former speechwriter for President Bush and Secretary of Defense Rumsfeld, has
underscored
this message: "Dick Cheney is right. The CIA interrogation program did
produce valuable intelligence that stopped attacks and saved lives."
While the case against the torturers was dropped, a potentially
shocking and exhaustive analysis of CIA documents on the "enhanced
interrogation program," a
6,000 page report
by the Senate Select Committee on Intelligence, is still tangled up in
administration secrecy rules and regulations (see Commandment 2),
despite innumerable requests for its release. Supposedly the report
claims that the torture program did
not work or fulfill any of the claims of its supporters.
In other words, the absence of accountability for one of the most
egregious crimes committed in the name of the American people persists.
And from drone killings to NSA surveillance policies, the Obama
administration has continued to support those in the government who are
perfectly ready to live above the law and extrajudicially.
On this commandment, then, the president has once again failed to meet his own standards.
Five years later, Obama’s commandants need a rewrite. Here’s what
they should now look like and, barring surprises in the next three
years, these, as written, will both be the virtual law of the land and
constitute the Obama legacy.
Thou shalt not torture (but thou shalt leave the door open to the future use of torture).
Thou shalt detain forever.
Thou shalt live by limitless secrecy.
Thou shalt wage war everywhere and forever.
Thou shalt not punish those who have done bad things in the name of the national security state.
© 2014 Karen Greenberg
Karen Greenberg is the Executive Director of the Center on Law
and Security at the New York University School of Law. Her latest book,
The Least Worst Place, Guantanamo's First 100 Days (Oxford University Press), has just been published. She is also the co-editor of
The Torture Papers: The Road to Abu Ghraib, among other works.
