After the shameful, embarrassing performance of the Bush administration in denying the most basic human rights to detainees at Guantánamo, Bagram, Afghanistan, and at CIA black sites elsewhere, the record of the Obama admininstration on this issue has been mixed at best.
Initially, Obama canceled Bush executive orders that permitted torture (while denying such a label), and ordered the closure of the Guantánamo detention camp and the subjection of prisoners to legal trial with the full rights of other prisoners under our legal system. These measures were desperately needed to rectify the Bush policy of defying international law and stretching the constitution past the breaking point. They should ultimately be codified in law by congressional action, to guard against future abuses by future presidents, but as initial steps these early Obama decisions are vitally important.
The Obama follow-through, however, has been less impressive. On at least two occasions in court, the Obama Justice Department was given the opportunity to reject the Bush doctrine that detainees have no right to seek a writ of habeas corpus. On both occasions, the government declined to change its position. Thus, it is still the Obama administration’s position that people may be detained indefinitely without charges and without redress. Some have suggested that the administration was simply playing for time while it formulates an alternative policy, and that may be. But meanwhile they have prejudiced the prospects of the prisoners who were involved in these cases, and set precedents that may come back to haunt them if they do ultimately adopt a different policy. And it may also be that in the end Obama will not change the Bush policy. That would be a grave error.
Supporting the latter view, Leon Panetta, the new head of the CIA, testified to Congress that, while he would not knowingly send detainees to other countries where they might be tortured (known as “extraordinary rendition”), he would not give up the right to engage in such rendition. And for what other reason might he authorize rendition? He did not say. Here, at the highest policy level, the administration acknowledges that it will continue to use the abusive practices of its predecessor, but promises not to be quite as abusive.
Candidate Obama had it right when he pointed out that violations of international law and the constitution in the name of keeping us secure posed a false dichotomy. We need to hold him to his pledge to root out these abusive and counterproductive policies.