Like many other civil libertarians, I have been deeply disappointed by President Obama’s willingness to continue many of the security practices of the Bush Administration. It is especially galling because–unlike Bush–Obama quite obviously knows what the Constitution requires, and has nevertheless been willing to engage in surveillance and other practices which most civil libertarians believe cross the line.President Obama gets blamed for many things he clearly doesn’t do, but in this area, disappointment in his performance is justifiable.
Because I have been pretty critical of Administration policy in this area, I was interested in the following observation posted on the Law and Courts Listserv, a scholarly exchange to which I subscribe.
In response to a post suggesting an equivalency between the policies of the two administrations, Professor Alexander wrote:
“Eugene says the Bush antiterrorism policy “is quite similar to the Obama Administration’s antiterrorism policy.”
I like many others have been deeply disappointed in aspects of the Obama Administration’s policy on detainees and counterterrorism, as well as the efforts by Congress and judges on the D.C. Circuit to force the administration to continue Bush policies. But Eugene’s statement is simply not the case. Contrary to the Bush administration:
* Obama has withdrawn from combat operations in Iraq and plans to
withdraw from Afghanistan in 2014;
* Obama found and killed bin Laden;
* on his first day in office Obama
1) revoked all the Bush administration OLC memos, executive
orders, and directives on interrogations;
2) ordered an end to torture, and cruel, inhumane, or
degrading treatment, and compliance with the Army field manual
(regardless of whether one thinks that is the end-all of good
interrogation practice);
3) ordered all CIA prisons worldwide to be closed;
4) ordered the closure of Guantanamo — it is decidedly not
his fault that the facility remains open;
5) ordered that the Geneva Conventions are the “minimum
baseline” for treatment of any individuals detained in “any armed conflict”;
6) ordered that the International Red Cross be given access
to all detainees;
* Obama ordered the trial in Art III court of KSM and the other
captured 9/11 plotters — again, not his fault that they must be tried
in military commissions;
* in March 2011 Obama issued an executive order directing that the
government comply with Art 75 of Additional Protocol I to the Geneva
Conventions “out of a sense of legal obligation” — thereby
acknowledging the binding nature of international law in connection with
the detention of suspected terrorists — and urged Congress to ratify
Additional Protocol II;
* the Obama administration revamped the military commission
procedures so that — although not as good as Art III courts — they are
much improved over the Bush versions;
* in particular, evidence obtained by cruel, inhuman, or degrading
treatment is barred;
* it appears that DOJ and DOD are pursuing and concluding military
commission plea bargains so that evidence in MC trials (such as the KSM
trial) will conform to Art III standards;
* the President and Attorney General have repeatedly declared that
waterboarding is torture and is illegal (in stark contrast to Bush,
Cheney, and Yoo, who have gleefully affirmed torture as good policy); and
* no prisoners have been transferred to Guantanamo and the
administration has repeatedly stated that none will be.”
Clearly, Professor Alexander has been following these matters far more closely than I have.
Now, I’ll be the first to acknowledge that being better than the Bush Administration on civil liberties is hardly a “get out of jail free” card. But this list did make me feel better.
