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Excessive Secrecy Undermining Obama’s Human Rights Achievements

SOURCE: AP/Charles Dharapak

President Barack Obama delivers an address on national security, terrorism, and the closing of the Guantanamo Bay prison at the National Archives on May 21, 2009. The Obama administration can build public confidence in government if it rejects excessive secrecy and revives its pledge on transparency.

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Today is World Human Rights Day, the annual celebration of the adoption in 1948 of the Universal Declaration of Human Rights. The visionary leadership of Eleanor Roosevelt was the driving force behind the Declaration and the United States had consistently pressed for the spread of human rights around the world for decades.

America’s longstanding authority as a global leader in human rights was one of our greatest national security assets. But the credibility of America’s commitment to human rights has been severely damaged in the wake of the Bush administration’s official policy of torture and abuse of detainees captured in the fight against Al Qaeda.

President Barack Obama prioritized reversing some of the previous administration’s worst policies, announcing the closure of Guantanamo Bay, unequivocally banning torture, and shutting down the CIA-run black prisons, all in the first days of his term. He also pledged that his administration would be the most transparent in American history, and he quickly followed through by releasing the memos the Bush administration relied upon to give legal cover for torture and other detainee abuse.

These early moves created the opening for President Obama to begin the essential process of restoring faith in the United States’ actions and motives, but they also put the president’s own credibility on the line to deliver the kinds of changes he promised.

Unfortunately, since those positive first actions, the Obama administration has fallen into a disturbing trend of relying on similar national security arguments the Bush administration used to deny public access to information about detainee abuse. There are appropriate instances to withhold information from the public based on national security concerns. But the frequency and pattern of its use is seemingly at odds with Obama’s stated positions and has caused many of the president’s early supporters to question his sincerity.

Some of the criticism equating Obama and Bush is ridiculous and irresponsible. But legitimate concerns about Obama’s policies do exist, especially as new questions have surfaced about past and present detainee treatment.

In many areas of the Obama presidency, expectations quickly outpaced any realistic capability to meet them. But it was Obama himself who promised a paradigm shift in U.S. detention policy and the most transparent presidency ever. Despite some unquestionable successes the Obama administration is still struggling to convince the public that a truly new era of American transparency and leadership on human rights has begun. Failure to live up to those standards would undermine the positive strides Obama has made on human rights policy and American national security.

Excessive government secrecy is an enemy of human rights and the rule of law. President Obama deserves praise for rejecting the underlying policies that caused the United States so much harm during the Bush years. But in withholding photos of detainee abuse, preventing legal challenges to torture and warrantless surveillance, and thwarting impartial hearings into suspicious deaths at Guantanamo, his administration has so far failed to pull down the veil of secrecy hiding the extent of Bush administration transgressions.

The Obama administration needs to build public confidence in the institutions of American government, especially now that new and credible allegations of recent detainee abuse have surfaced in Afghanistan. The early promise of the Obama administration can still be fulfilled if it rejects excessive secrecy and recalls its pledge on transparency.

Torture photos

The first sign of a retreat on transparency came amid the furor surrounding the release of the so-called torture memos. The Obama administration badly miscalculated the response to the deeply flawed legal reasoning the Bush administration secured to justify its desire to torture suspected Al Qaeda terrorists. Rather than put an end to the episode, the release of the memos only intensified the debate over the Bush administration’s policies.

Just a few weeks prior to releasing the memos, the Obama administration said it would not fight a decision by the Second Circuit Court of Appeals that ordered the release of hundreds of photographs of detainee abuse. Those photographs had been collected as part of the various military investigations into detainee treatment after the Abu Ghraib scandal broke and were the subject of a Freedom of Information Act request from the American Civil Liberties Union. But already mired in a debate it did not want over the torture memos, the Obama administration reversed its decision and claimed that it would appeal on the grounds releasing the photos would jeopardize the security of American servicemen and women serving in Iraq and Afghanistan.

There is an easily identifiable security rationale for not releasing the photographs even after making the memos public—hundreds of television and Internet-ready images are potentially much more explosive than legal reasoning. Abu Ghraib is burned into our memories because of the images. It is likely that the fact that the pictures were taken years ago and that Obama had banned torture would be lost in the crush of the 24-hour news cycle. It’s not hard to imagine that this would expose U.S. military personnel to significant risk.

After years of the Bush administration hiding its misconduct behind spurious claims of national security, however, the American people have good reason to be skeptical about the administration’s decision not to release the photos. Mere assertions of good faith are no longer sufficient and the Obama administration must demonstrate that this was a rare occurrence when genuine and specific national security concerns trump public disclosure. Unfortunately, what has transpired since provokes real doubt that the Obama administration will live up to its commitment to usher in a new era of transparency.

State secrets

Broad use of the state secrets privilege was among the staples of the Bush administration’s unprecedented secrecy regime. The privilege is designed to protect classified national security information from unauthorized disclosure during court proceedings. Its modern use in American law, however, is built on government misconduct and blatant deception.

In 1953, the government persuaded the Supreme Court that sensitive national security secrets would be disclosed if it was required to turn over an accident report to the widows of three airmen killed in a plane crash. When the accident report was finally made public during the 1990s it contained no genuine secrets, only evidence that negligence and misconduct were the actual causes of the crash. But by this time the state secrets privilege that emerged from the Reynolds case had long been established as a legitimate instrument for the executive branch to protect classified information from unauthorized disclosure.

The Bush administration, however, took the state secrets privilege to a new level. In the roughly 50 years between the Reynolds state secrets privilege’s creation and 2001—which was mostly during the Cold War—presidents invoked it only 55 times. In the eight years of the Bush administration it was applied in at least 40 cases. Making matters worse, the privilege had been transformed from the Reynolds evidentiary standard that could be used to remove specific evidence from a lawsuit, into a mechanism to dismiss entire cases, essentially giving the executive branch a veto over which lawsuits could proceed.

Since most of these lawsuits involved allegations of government misconduct related to torture or warrantless wiretapping, there was justified suspicion that the Bush administration’s true motives for squashing these lawsuits was to shield government officials from scrutiny. There certainly are instances when there are legitimate national security issues at stake and information must be protected from disclosure. But the only solution to that circumstance is not a blanket power for the executive to shield itself from scrutiny.

Reform of the state secrets privilege is necessary, and President Obama apparently agreed.

In April 2009, President Obama correctly observed, “I actually think that the state secret doctrine should be modified. I think right now it’s overbroad.” He then went on to add that he was, “searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.” At the time, the Obama administration was reviewing all instances of the Bush administration’s assertion of the privilege that were still pending.

In September, Attorney General Eric Holder announced the results of the review and put in place new guidelines for how the Obama administration would apply the privilege. The new rules significantly raise the internal executive branch checks for asserting claims of state secrets, requiring the attorney general to sign off on its use and prohibit its application to shield government misconduct. The Obama administration’s guidelines, however, are completely silent about the president’s criticisms of the privilege being used as a “blunt instrument” to dismiss entire cases. These are meaningful changes but they fall far short of what is required to, as Attorney General Holder claims is his intent, “rebuild the public’s trust.”

Importantly, the new procedures don’t seem to affect how the Obama administration applies the privilege in high-profile cases accusing the Bush administration of torture or other misconduct. In a number of cases dealing with either allegations of torture, extraordinary rendition, or warrantless electronic surveillance against the Bush administration, the Obama administration has repeatedly sought not just to remove certain evidence for these cases, but to dismiss the entire lawsuit simply on its assurance that national security would be harmed if the cases proceed. Only in one rather obscure and bizarre case involving a Drug Enforcement Agency official who accuses the CIA of bugging his house has the Obama administration reversed previous decisions to apply the privilege.

The first step for the Obama administration to “rebuild the public’s trust” is to drop the conceit that the executive branch has exclusive control over this issue and can resolve all the concerns itself. Congress is highly invested in the state secrets privilege, and the State Secrets Protection Act has been introduced in both 2008 and 2009—Vice President Joseph Biden was a co-sponsor of the 2008 version.

The Obama administration should engage with Congress to resolve whatever substantive differences exist and present a legislative agreement to modify the state secrets privilege. Even if final passage is difficult to achieve due to minority obstructionism in the Senate, the Obama administration could adopt the principles of the legislation and add them to the internal reforms it has already implemented. That would go a long way to eliminating what the president correctly identified as a “blunt instrument.”

Suicides at Guantanamo

One of the more tragic and despicable episodes of the Bush regime of torture and abuse occurred at Guantanamo in June 2006. Three Guantanamo detainees committed suicide by hanging themselves in their cells. The Bush administration immediately labeled the deaths a coordinated attack of “asymmetrical warfare” by Al Qaeda against the United States.

The families of two of the detainees have now sued numerous former U.S. government officials and military personnel, claiming that torture and the horrific conditions at Guantanamo led the two to commit suicide. The Obama administration— though not named in the case—has filed court papers in support of the government and military officials. It argued that the 2006 Military Commissions Act barred federal courts from hearing any claims related to the treatment of detainees held at Guantanamo. Additionally, a 2008 Supreme Court ruling that extended habeas corpus rights to the detainees did not strike down the other prohibition on detainee treatment claims and habeas rights do not convey to an individual’s family after death.

The Obama administration’s position may be legally correct, but it is morally indefensible, especially in light of a new report released this week by Seton Hall University Law School that calls into serious question the military’s account of the events surrounding the detainees’ deaths. The U.S. military’s official investigation of the incident concluded that the three detainees completed 10 distinct tasks to hang themselves and remained suspended for at least two hours completely unnoticed in their always lit wire mesh cells. Not only did the detainees fashion their own nooses from sheets and T-shirts, but they managed to tie their hands and feet together and stuff a rag down their throats before hanging themselves.

Standard operating procedure called for constant visual and video supervision of the detainees, and the cell block in question had five guards for just 28 detainees. It is inconceivable that the detainees could have pulled off their suicides without significant violations of these procedures by the guards, yet the investigation resulted in no reprimand or sanction against anyone at any level of responsibility.

Rather than presenting a credible account of the events surrounding the deaths of these detainees, the investigation has only added to the questions and undermined confidence that the military can investigate itself. A court case before an impartial judge is exactly what is required to uncover the facts of what actually happened, but the Obama administration is helping thwart such a hearing.

Afghan torture allegations

The Obama administration has banned torture and so-called “enhanced interrogation techniques.” There are no loopholes for military necessity or exceptions that allow the intelligence community or government contractors to abuse detainees to gain intelligence or for any other reason. This, of course, only makes it more puzzling why the Obama administration would use broad assertions of secrecy to restrict access to past activities it opposes and prohibited.

Credible allegations have now surfaced that abusive interrogation by U.S. military forces persists in Afghanistan in spite of Obama barring the practice. Two young Afghans told The Washington Post that “they were beaten by American guards, photographed naked, deprived of sleep and held in solitary confinement for at least two weeks,” all violations of the Army Field Manual for interrogation and the Detainee Treatment Act of 2005

In a separate account, several former detainees told The New York Times that Special Operations forces operate a secret, black jail at Bagram Air Base separate from the Bagram Theater Internment Facility. These detainees are allegedly hidden from the Red Cross at the secret prison for weeks at a time, again a violation of the procedures governing detainee treatment.

The Obama administration’s response has been woefully inadequate. Lt. Col. Mark Wright, described by the Post as a Defense Department spokesman, claimed the military does not respond to each allegation of detainee abuse and then added the remarkable assertion, “Department of Defense policy is and always has been to treat detainees humanely.”

There is a massive difference between officially sanctioned torture and abuse at the hands of individuals expressly violating established procedures designed to prohibit that very conduct. This distinction is important for Americans but meaningless to the victims, and, of additional concern, could further erode international and particularly Afghan support for the now expanded U.S. military mission.

After the horrors of the Bush years, the U.S. government has lost the benefit of the doubt regarding what is official policy and what is not. Genuine urgency is required to get to the bottom of these allegations and the results of any investigation must be disclosed to the public in a manner that builds confidence it its conclusion, not add to the questions surrounding the incidents.

The Obama administration must fulfill its pledge of greater transparency

The Obama administration has made vital changes to U.S. policies to improve America’s respect for human rights and the rule of law. It was important to make these changes not only for our moral responsibilities and the legacy of American leadership, but because the stain of the Bush administration had become a strategic problem for the United States. It remains a national security imperative that the Obama administration close the prison at Guantanamo Bay, unequivocally renounce torture and abusive interrogation, and shut down CIA-run secret prisons.

In the 21st century, American national security begins with the credibility of American leadership. The meaningful improvements in America’s human rights policies are only the beginning of a process to restore faith and confidence in the American government. That process has only been made more important by President Obama’s own words that have committed his administration to an irreversible path toward greater transparency and respect for human rights. A sustained retreat from these goals will undermine early accomplishments, erode the credibility of President Obama, and weaken the United States and our security.

Ken Gude is the Associate Director of the International Rights and Responsibility Program at American Progress.

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