072910 ACLU Obama Establishing New Normal

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ESTABLISHING A NEW NORMAL

National Security, Civil Liberties, and Human RightsUnder the Obama Administration

AN 18-MONTH REVIEW

JULY 2010

AMERICAN CIVIL LIBERTIES UNION

125 Broad Street, 18th Floor

New York, NY 10004

www.aclu.org



Establishing A New Normal | 2

INTRODUCTION

On January 22, 2009—his second ull day in oce

—President Obama signed a series o executive

orders that squarely repudiated some o the mostegregious abuses o the Bush administration.

The new orders categorically prohibited torture

and limited all interrogations, including those

conducted by the CIA, to techniques authorized

by the Army Field Manual. They outlawed the

CIA’s practice o secret detention and shut down

the CIA’s overseas prisons. And they mandated

the closure o the Guantánamo prison within one

year. These auspicious rst steps towards ulll-

ing candidate Obama’s promise o change were

more than symbolic gestures: they carried theorce o law, they placed the power and prestige

o the presidency behind restoration o the rule o

law, and they gave weight to the President’s ot-

stated view that adherence to our nation’s unda-

mental principles makes us saer, not less sae.

But in the eighteen months since the issuance

o those executive orders, the administration’s

record on issues related to civil liberties and

national security has been, at best, mixed. Indeed,

on a range o issues including accountability ortorture, detention o terrorism suspects, and use

o lethal orce against civilians, there is a very

real danger that the Obama administration will

enshrine permanently within the law policies and

practices that were widely considered extreme

and unlawul during the Bush administration.

There is a real danger, in other words, that the

Obama administration will preside over the cre-

ation o a “new normal.”

This report examines the Obama administra-tion’s record to date on a range o national secu-

rity policies that implicate human rights and

civil liberties. It concludes that the administra-

tion has taken positive steps and made genuine

progress in some areas. Perhaps most notably,

the administration’s release o Justice Depart-

ment memoranda that purported to authorizethe Bush administration’s torture regime, as

well as a CIA report describing how even those

lax limits were exceeded, evinced a commitment

to transparency o truly historic signicance,

and the administration deserves high praise or

making those critical documents available or

public scrutiny. Regrettably, in a pattern that has

repeated itsel throughout the administration’s

rst eighteen months, a signicant achievement

was ollowed by a step back: the administration

reversed its decision to comply with a court deci-

sion ordering the release o photos depicting the

abuse o prisoners in Iraq and Aghanistan, and

it supported legislation granting the Secretary oDeense unprecedented authority to conceal evi-

dence o misconduct.

Similarly, the administration’s admirable com-

mitment to dismantle the Guantánamo prison

has been undermined by its unwillingness to

dismantle the legal architecture o the Bush-

era detention regime: the Obama administration

has continued to assert the authority to detain

militarily, without charge or trial, Guantánamo

detainees (and others) captured ar rom any con-ventional battleeld, and there is a genuine dan-

ger that the administration will close the prison

but enshrine the principle o widespread military

detention without trial. Equally disappointing, the

There is a real danger…that

the Obama administration will

preside over the creation o a

“new normal.”




administration’s unequivocal prohibition against

torture has been undamentally weakened by its

continuation o the Bush administration’s eorts

to stymie meaningul accountability: the admin-

istration has adopted the same sweeping theory

o “state secrets” to prevent torture victims romseeking justice and compensation in U.S. courts,

and the President himsel has publicly opposed

criminal investigations o the architects o the

torture regime.

The ACLU will continue to monitor the impact o

the administration’s national security policies on

undamental civil liberties and human rights. We

hope that this report, published less than hal-

way through the President’s rst term, will serve

as a vehicle or refection and urther dialogue;we hope that the administration will renew its

commitment to the principle that the nation’s

undamental values are the very oundation o its

strength and security.




TRANSPARENCY

Many o the Bush administration’s most contro-

versial national security policies—the warrant-

less wiretapping program, the torture program,the rendition program—were conceived, devel-

oped, and authorized in secret. The American

public ound out about these policies long ater

they were put into place, and ater a great deal o

damage had already been done. Too oten, Amer-

icans had to rely on leaks to the news media,

or litigation by public interest organizations, in

order to nd out about consequential national

security policies that had been adopted in their

name. Too oten, national security policies that

should have been subject to public debate wereimplemented secretly. And too oten, this secrecy

shielded government ocials rom accountabil-

ity or decisions that violated the public’s trust

and the law.

Formerly secret government records released under theFreedom o Inormation Act

President Obama signaled a break rom this past

in his rst days in oce. In a Memorandum on

Transparency and Open Government, the Presi-dent acknowledged that transparency would

“strengthen our democracy,” and he pledged

that his administration would commit itsel to

“creating an unprecedented level o openness in

Government.”1 In a Memorandum on the Free-

dom o Inormation Act, the President declared

that “[a] democracy requires accountability,

and accountability requires transparency,” and

he ordered all ederal agencies to institute a

“presumption in avor o disclosure,” thereby

reversing the so-called “Ashcrot rule” that hadgoverned during the Bush administration. The

President cautioned ederal agencies that “[t]he

Government should not keep inormation con-

dential merely because public ocials might be

embarrassed by disclosure, because errors and

ailures might be revealed, or because o specu-

lative or abstract ears.”2

Over the next weeks, the Obama administration

made modest—though nonetheless important

—improvements to the rules governing classi-cation.3 It unded a FOIA ombudsman.4 And it

required agencies to release some inormation

proactively and in ormats useable by the general

public.5

Most signicantly, the Obama administration

agreed to release the Justice Department mem-

os that had been the basis o the Bush adminis-

tration’s torture program—memos that the ACLU

and other public interest organizations had long

been seeking under the Freedom o InormationAct. The decision to release the memos was o

historic importance. The memos allowed Ameri-

cans to evaluate or themselves the legal argu-

ments that were the oundation o the torture




program, and to decide or themselves whether

the architects o the program had acted lawully

and in good aith. And in the weeks and months

ater the release o the memos, the Obama

administration released ocial reports that shed

urther light on these questions. In August 2009,it released a report by the CIA’s Inspector Gen-

eral assessing the CIA’s interrogation and deten-

tion program.6 In February 2010, it released a

report by the Justice Department’s Oce o Pro-

essional Responsibility assessing the conduct o

the lawyers who wrote the torture memos.7

The administration’s commitment to transpar-

ency, however, has been inconsistent, and it

has waned over time. Although the administra-

tion initially stated that it would comply with anappellate court decision requiring it to release

abuse photographs rom detention acilities in

Aghanistan and Iraq, it later reversed course

and declared that it would seek Supreme Court

review, and it supported an invidious amendment

to the FOIA intended to retroactively exempt the

photos rom release under the statute. In addition

to thwarting the decision o the appellate court,

“A democracy requires

accountability, and accountability

requires transparency. “

—PRESIDENT BARACK OBAMAin a 2009 memorandum to executivedepartments and agencies

the legislation invested the Secretary o Deense

with sweeping authority to withhold any visual

images depicting the government’s “treatment

o individuals engaged, captured, or detained”

by U.S. orces—no matter how egregious the

conduct depicted or how compelling the public’sinterest in disclosure.8 As the ACLU noted at the

time, the legislation essentially gave the greatest

protection rom disclosure to records depicting

the worst orms o government misconduct.

Since its change o heart on the abuse photo-

graphs, the administration has ought to keep

secret hundreds o records relating to the Bush

administration’s rendition, detention, and inter-

rogation policies. To take just a ew o many

possible examples, it has ought to keep secreta directive in which President Bush authorized

the CIA to establish secret prisons overseas; the

Combatant Status Review Transcripts in which

ormer CIA prisoners describe the abuse they

suered in the CIA’s secret prisons; records

relating to the CIA’s destruction o videotapes that

depicted some prisoners being waterboarded;

and cables containing communications between




the CIA’s secret prisons and ocials at CIA head-

quarters. It has argued that the CIA’s authority

to withhold inormation concerning “intelligence

sources and methods” extends even to meth-

ods that are illegal. The administration has

also ought to withhold inormation about pris-oners held at Bagram Air Base in Aghanistan.

Indeed, the Obama administration has released

less inormation about prisoners held at Bagram

Air Base than the Bush administration released

about prisoners held at Guantánamo.

One topic that the Obama administration has

shrouded in secrecy warrants particular atten-

tion. Over the last ew months, many media

organizations have reported about the adminis-

tration’s “targeted killing” program—a programunder which the administration asserts the

authority to kill suspected terrorists anywhere in

the world. At least one o the program’s targets is

a United States citizen. Even the program’s pro-

ponents concede that the program raises serious

questions o law and public policy. (We discuss

the program at more length below.) Yet the inor-

mation available to the public about the pro-

gram is extremely limited. Stonewalling a FOIA

request led by the ACLU, the CIA has reused

even to conrm or deny whether it has recordsabout the program. There is no legitimate basis

or the administration’s reusal to disclose the

legal basis or the program and basic inorma-

tion about the program’s scope.

Also o grave concern to us is the administra-

tion’s aggressive pursuit o government whistle-

blowers. During his campaign, candidate Obama

said that he knew “a little bit about whistleblow-

ing, and making sure those olks get protection.”

Rather than protect whistleblowers, however,the administration has been prosecuting them.

It has charged Thomas Drake, a ormer ocial o

the National Security Agency, or allegedly leak-

ing inormation about waste and incompetence

at that agency. (Notably, it was only because o

a leak to the media that the public learned o the

NSA’s warrantless wiretapping program.) It has

charged Bradley Manning, a 22-year-old Army

intelligence analyst, or allegedly leaking a video

showing the killing o two Reuters news sta and

several other civilians by U.S. helicopter gun-ships in Iraq. (Reuters had spent nearly three

years trying to obtain the video through FOIA;

now that the video is in the public domain, it is

clear that there was no basis or withholding it.)9

In its rst months, the Obama administration

pledged a new era o transparency, and it took

substantial and historic steps to make good on

that pledge. Over the next eighteen months, we

urge the administration to recommit itsel to the

ideals that the President himsel invoked in hisrst days in oce. Our democracy cannot sur-

vive i crucial public policy decisions are made

behind closed doors, implemented in secret, and

never subjected to meaningul public oversight

and debate. It cannot survive i the public does

not know what policies have been adopted in its

name.




TORTURE AND ACCOUNTABILITY

The Justice Department memos that the Obama

administration released in April 2009 related to

a torture program that was conceived and devel-oped at the highest levels o the Bush adminis-

tration. Justice Department lawyers wrote legal

opinions meant to justiy torture; senior civilian

and military ocials authorized torture; and CIA

and military interrogators used torture—at Guan-

tánamo, in the CIA’s black sites, and elsewhere.

Government documents show that hundreds o

prisoners were tortured in U.S.-run detention

acilities, and that more than one hundred were

killed, many in the course o interrogations.

In his rst days in oce, President Obama unam-

biguously rejected this legacy. In an executive

order, President Obama categorically disavowed

torture and directed that all prisoners in U.S.

custody be aorded the protection o Common

Article 3 o the Geneva Conventions (in compli-

ance with the Supreme Court’s 2006 ruling in

Hamdan v. Rumsfeld ); that all interrogations o

prisoners in U.S. custody conorm to the Army

Field Manual; that the CIA close its secret pris-

Paintings by American artist Jenny Holzer o U.S. government documents released through ACLU litigation

ons; and that the International Committee o the

Red Cross be promptly notied o any person

detained by the United States.10

When the admin-istration released the Bush administration’s

torture memos in April 2009, the Justice Depart-

ment withdrew all o the legal memos that had

undergirded the Bush administration’s torture

program,11 and in a public statement President

Obama declared:

I prohibited the use o these interrogation

techniques by the United States because

they undermine our moral authority and

do not make us saer. Enlisting our valuesin the protection o our people makes us

stronger and more secure. A democracy

as resilient as ours must reject the alse

choice between our security and our ide-

als, and that is why these methods o inter-

rogation are already a thing o the past.12

The decision to dismantle the Bush administra-

tion’s torture program was a crucial one, not just

or the United States but or the world. President




Obama deserves credit or the decision, and or

his vigorous deense o it.

But while the administration has disavowed tor-

ture, it has made little eort to hold accountable

those who authorized it. In recent years, manyother countries—including some o America’s

closest allies, like the United Kingdom, Germa-

ny, Spain, and Canada—have begun to examine

their responsibility or the abuse and torture

o prisoners in U.S. custody. The United States

is increasingly isolated in its unwillingness to

investigate the roots o the torture program, its

reusal to compensate torture survivors, and its

ailure to hold accountable the senior govern-

ment ocials who authorized interrogators to

use torture.

The truth is that the Obama administration has

gradually become an obstacle to accountability

or torture. It is not simply that, as discussed

above, the administration has ought to keep

secret some o the documents that would allow

the public to better understand how the torture

program was conceived, developed, and imple-

mented. It has also sought to extinguish lawsuits

brought by torture survivors—denying them rec-

ognition as victims, compensation or their inju-ries, and even the opportunity to present their

cases.

Mohamed v. Jeppesen Dataplan, Inc., or example,

is a suit brought by ve survivors o the CIA’s

rendition program. In the district court, the Bush

adminstration argued that the case could not be

litigated without the disclosure o state secrets,

and that it should thereore be dismissed at the

outset. The district court agreed. To the surprise

o many, the Obama administration deend-ed that district court decision in the Court o

Appeals or the Ninth Circuit, arguing that the

district court was correct to deny the plaintis

any opportunity to present their case in court.

Even ater a three-judge panel o the Ninth Cir-

cuit court sided with the ACLU and vacated the

lower court decision, the Obama administration

persisted in its argument that the case should

not be litigated at all. It asked the ull Ninth Cir-

cuit to reconsider the decision o the three-judge

panel, and the court did so. A ruling is expected

in the next ew months.

The state secrets doctrine is not the only mech-

anism the Obama administration has invoked

to extinguish civil suits by torture survivors. In

Rasul v. Rumsfeld , a suit brought by ormer Guan-

tánamo detainees seeking redress or torture,

abuse, and religious discrimination, the Obama

administration argued, remarkably, that the

government deendants were immune rom suit

because, at the time that the abuse occurred,

established law did not clearly prohibit torture

and religious discrimination at Guantánamo. In Arar v. Ashcroft, the administration argued that

the Constitution provided no cause o action to

an innocent man who had been identied by the

United States as a terrorist, rendered to Syria or

torture, and not released until ten months later




when it was determined that he was not a ter-

rorist ater all. In that case, the administration

also argued to the courts that aording Arar a

judicial remedy “would oend the separation o

powers and inhibit this country’s oreign policy,”

and impermissibly involve the courts in assess-

ing “the motives and sincerity” o the ocials

who authorized Arar’s rendition.13

The administration has sometimes suggestedthat civil suits are unnecessary because the Jus-

tice Department has the authority to investigate

allegations that government agents violated the

law.14 But civil suits, o course, serve purposes

that criminal investigations do not: they allow

victims their day in court, and they provide an

avenue through which victims can seek compen-

sation rom perpetrators.

In any event, there is little evidence that the

administration is committed to a comprehensivecriminal investigation into the Bush administra-

tion’s torture program. In August 2009, Attor-

ney General Eric Holder announced that he had

ordered an investigation into incidents involving

CIA interrogations. The Attorney General char-

The Obama administration

has gradually become an

obstacle to accountability

or torture.

acterized the investigation, however, as a “pre-

liminary review” meant “to gather inormation to

determine whether there is sucient predication

to warrant a ull investigation o a matter.” He also

made clear that the investigation was ocused not

on the architects o the torture program but onincidents in which interrogators exceeded their

authority. It is conceivable that what began as a

narrowly circumscribed preliminary review will

grow into a broader investigation, but we have no

reason to have condence that the investigation

will expand in this way. The Special Prosecutor’s

torture investigation has already dragged on or

nearly a year, and a related investigation into the

CIA’s destruction o videotapes depicting bru-

tal interrogations has been ongoing or almost

three. And President Obama has made clear thathis own preerence is to “look orward, not back.”

In act the choice between “looking orward” and

“looking back” is a alse one. While it’s crucial

that the Obama administration adopt new poli-

cies or the uture, we cannot ignore the abuses

o the past. And while President Obama has dis-

avowed torture, a strong democracy rests not on

the goodwill o its leaders but on the impartial

enorcement o the laws. Sanctioning impunity

or government ocials who authorized tor-ture sends a problematic message to the world,

invites abuses by uture administrations, and

urther undermines the rule o law that is the

basis o any democracy.




DETENTION

While campaigning or the presidency, then-Sen-

ator Obama declared that in “the detention cells

o Guantánamo, we have compromised our mostprecious values.”15 He rejected unequivocally the

practices “o detaining thousands without charge

or trial” and “o maintaining a network o secret

prisons to jail people beyond the reach o law.”16

His bottom-line was clear: “As President, I will

close Guantánamo.”17 On his second ull day in

oce, President Obama ordered the CIA to close

its secret prisons, set a one-year deadline or

closing the Guantánamo prison, and established

an interagency task orce to review the cases o

everyone detained at Guantánamo.18

Soon there-ater, the administration abandoned the Bush

administration’s dubious legal argument that

lawul U.S. resident (and ACLU client) Ali Al-

Marri, who had been arrested by civilian authori-

ties in Illinois, could be detained indenitely bythe military without charge or trial. Al-Marri was

transerred to civilian custody where he pled

guilty to specied oenses and was sentenced to

a term o eight years.

It was a promising beginning, but eighteen

months later Guantánamo is still open and some

180 prisoners remain there. The administration

is not solely responsible or missing this one-

year deadline; Congress has obstructed any pos-

sible relocation o even indisputably innocentdetainees like the Chinese Uighurs to the United

States, thereby rendering diplomatic eorts to

relocate detainees in Europe and elsewhere ar

more dicult. And the administration deserves

credit or releasing some 67 detainees rom

Guantánamo. But the Obama administration’s

unjust decision to halt all detainee releases to

Yemen—even when the detainees have been

cleared or release ater years o harsh detention

—has been a major actor in the prison’s remain-

ing open; a majority o the remaining detaineesare Yemeni. Moreover, the administration bears

responsibility or opposing in court the release

o detainees against whom the government has

scant evidence o wrongdoing.

In one recent case, the Obama administration

vigorously opposed the release o Hassan al-

Odaini—who was 17 years old when arrested and

spent eight years imprisoned without charge.

The ederal court’s decision, which emphati-

cally ordered Mr. Odaini’s release, revealed thatthe government itsel had repeatedly concluded

that he was not a threat, but had instead simply

been in the wrong place at the wrong time when

Pakistani ocials arrested him during a surprise

Guantánamo should be closed,

but not at the cost o enshrining

the principle o indenite

detention in a global war

without end.

Former Guantánamo detainees




raid o a classmate’s home.19 While the Obama

administration complied with the court’s order

and released Mr. Odaini, the case wholly reutes

the claim that the administration would inde-

nitely detain only those “who pose a clear danger

to the American people.”20

It also suggests thatthe Guantánamo review task orce, which com-

pleted its work months ago, has not resulted in

the release o all innocent prisoners still held at

Guantánamo Bay.

O ar greater signicance than the administra-

tion’s ailure to meet its own one-year dead-

line is its embrace o the theory underlying the

Guantánamo detention regime: that the Execu-

tive Branch can detain militarily—without charge

or trial—terrorism suspects captured ar rom aconventional battleeld. President Obama rst

expressly endorsed this claim o authority in

May o 2009, in a major speech at the National

Archives. The President stated that Guantána-

mo detainees whom the administration deemed

dangerous, but who “could not be prosecuted”

because o a lack o reliable evidence, would be

held indenitely without trial, and he proposed

that Congress provide legislative authority or a

(Let) Drawing by the mother o ormer Guantánamo detainee, Omar Deghayes. (Right) Drawing by a British artist and activist JohnCatt presented to Omar Deghayes

new detention regime.21 Although, to its credit,

the administration has now publicly stated that

it will not support any new legislation expanding

detention authority, it has continued to assert,

in habeas corpus proceedings involving Guan-

tánamo and Bagram detainees, a dangerouslyoverbroad authority to detain civilian terrorism

suspects militarily. And its task orce has identi-

ed 48 Guantánamo detainees who will be held

indenitely without charge or trial.

Perhaps the most troubling iteration o this

sweeping theory o detention authority occurred

in legal proceedings in which the Obama admin-

istration deended the detention without judi-

cial review o detainees in the Bagram prison in

Aghanistan. While the Obama administrationhas improved the military screening procedures

in place at Bagram, those procedures still all ar

short o basic due process standards. In response

to habeas corpus petitions led by prisoners who

had been captured outside o Aghanistan and

transerred by the Bush administration to mili-

tary detention at Bagram Air Base, the govern-

ment argued that the courts lacked jurisdiction

even to hear the prisoners’ challenges, let alone




decide their merits, because the prisoners were

being detained in a war zone. This was disin-

genuous bootstrapping: the prisoners had been

captured outside the war zone and transerred

into it; the government thereater relied on their

presence in the war zone as a basis or avoidingany judicial scrutiny.

The Court o Appeals or the D.C. Circuit sided

with the administration, eectively giving the

government carte blanche to operate the prison

at Bagram without any judicial oversight. Armed

with this decision, Obama administration ocials

have reportedly begun debating whether to use

the Bagram prison as a place to send individu-

als captured anywhere in the world or imprison-

ment and interrogation without charge or trial.22

Finally, the Obama administration has advocated

or the transer o some Guantánamo prisoners

to a prison in Thomson, Illinois, where they would

be detained by the military without charge or tri-

al. The ACLU will continue to oppose this eort

to transer the Guantánamo detention regime to

the heartland o America; we ear that i a prec-

edent is established that terrorism suspects canbe held without trial within the United States, this

administration and uture administrations will be

tempted to bypass routinely the constitutional

restraints o the criminal justice system in avor

o indenite military detention. This is a danger

that ar exceeds the disappointment o seeing

the Guantánamo prison stay open past the one-

year deadline. To be sure, Guantánamo should

be closed, but not at the cost o enshrining the

principle o indenite detention in a global war

without end.




TARGETED KILLING

O all o the national security policies introduced

by the Obama administration, none raises human

rights concerns as grave as those raised by theso-called “targeted killing” program. According

to news reports, President Obama has autho-

rized a program that contemplates the killing

o suspected terrorists—including U.S. citizens

—located ar away rom zones o actual armed

confict. I accurately described, this program

violates international law and, at least insoar as

it aects U.S. citizens, it is also unconstitutional.

The entire world is not a war zone. Outside o

armed confict, lethal orce may be used only as alast resort, and only to prevent imminent attacks

that are likely to cause death or serious physical

injury. According to news reports, the program

the administration has authorized is based on

“kill lists” to which names are added, sometimes

or months at a time, ater a secret internal pro-

cess. Such a program o long-premeditated and

bureaucratized killing is plainly not limited to

targeting genuinely imminent threats. Any such

program is ar more sweeping than the law allows

and raises grave constitutional and human rightsconcerns. As applied to U.S. citizens, it is a grave

violation o the constitutional guarantee o due

process.

The program also risks the deaths o innocent

people. Over the last eight years, we have seen

the government over and over again detain men

as “terrorists,” only to discover later that the

evidence was weak, wrong, or non-existent. O

the many hundreds o individuals previously

detained at Guantánamo, the vast majority havebeen released or are awaiting release. Further-

more, the government has ailed to prove the

lawulness o imprisoning individual Guantána-

mo detainees in some three quarters o the cas-

es that have been reviewed by the ederal courts

thus ar, even though the government had years

to gather and analyze evidence or those casesand had itsel determined that those prisoners

were detainable. This experience should lead the

administration—and all Americans—to reject out

o hand a program that would invest the CIA or

the U.S. military with the unchecked authority to

impose an extrajudicial death sentence on U.S.

citizens and others ound ar rom any actual

battleeld.




MILITARY COMMISSIONS

While campaigning or the presidency, then-

Senator Obama made cogent arguments against

military commission trials at Guantánamo onboth principled and pragmatic grounds. He pro-

essed “aith in America’s courts” and pledged to

“reject the Military Commissions Act.”23 In 2007

he pointed out the practical ineriority o the mil-

itary commissions, noting that there had been

“only one conviction at Guantánamo. It was or a

guilty plea on material support or terrorism. The

sentence was 9 months. There has not been one

conviction o a terrorist act.”24

The administration’s embrace o military com-mission trials at Guantánamo, albeit with

procedural improvements, has been a major dis-

appointment. Instead o calling a permanent halt

to the ailed eort to create an entirely new court

system or Guantánamo detainees, President

Obama encouraged an eort to redrat the legis-

lation creating the commissions and signed that

bill into law. To be sure, the reormed Military

Commissions Act contains improvements, but

there is still a very real danger that deendants

might be convicted on the basis o hearsay evi-

dence obtained coercively rom other detaineeswho will not be available or cross-examination.

More undamentally, the existence o a second-

class system o justice with a poor track record

and no international legitimacy undermines the

entire enterprise o prosecuting terrorism sus-

pects. So long as the ederal government can

choose between two systems o justice, one o

which (the ederal criminal courts) is air and

legitimate, while the other (the military commis-

sions) tips the scales in avor o the prosecution,both systems will be tainted by the likelihood

that the government will use the ederal courts

only in cases in which conviction seems virtually

assured, while reserving the military commis-

sions or cases with weaker evidence or where

there are credible allegations that the deen-

dants were abused in U.S. custody.

Handwritten statement by Guantánamo detainee Omar Khadr condemning his military commissions trial (Photo Credit: CarolRosenberg/The Miami Herald)




The error in continuing with a fawed military

commission system is perhaps most starkly

illustrated by the rst prosecution to go orward

at Guantánamo under President Obama’s watch.

The deendant, accused child soldier Omar

Khadr, is a Canadian citizen who was only 15years old when he was captured ater a reght

in Aghanistan. Khadr is alleged to have thrown

a grenade that killed a U.S. soldier. I the alle-

gations are true—and they have been cast into

serious doubt by subsequent revelations—then

Khadr was a child soldier brought to the battle-

eld by adults. In any event, Khadr has been sub-

jected to cruel and humiliating interrogations

during his eight years at Guantánamo. These

interrogations began almost immediately aterhis capture, while Khadr was in serious pain,

being treated or lie-threatening wounds in a

military eld hospital. The very rst hearing at

the revamped military commissions concerned

whether Khadr’s statements to interrogators

could be used against him, despite this torture

and abuse. It was marred by the same chaotic

lack o regular process that characterized other

hearings in the military commissions. Proceed-

ing with this prosecution or any other in so fawed

a system would be not only unjust but unneces-sary: the ederal criminal courts are both airer

and more eective. It is long past time to end the

ailed experiment o military commission trials at

Guantánamo.

“Part o my job as the next

president is to break the ever

o ear that has been exploited

by this administration.”

—SENATOR BARACK OBAMAin a November 14, 2007 interview




SPEECH AND SURVEILLANCE

With limited exceptions, the Obama administra-

tion’s positions on national security issues relat-

ing to speech and surveillance have mirroredthose taken by the Bush administration in its

second term.

Early in his campaign, candidate Obama declared

that he disagreed with President Bush’s deci-

sion to authorize the National Security Agency

to conduct warrantless surveillance o Ameri-

cans’ international telephone and email com-

munications.25 He later voted in avor o the FISA

Amendments Act, however, a statute that grant-

ed immunity to the telecommunications corpo-rations that had acilitated the NSA’s program,

limited the role o the court that oversees gov-

ernment surveillance in national security cases,

and authorized the NSA to continue—and even

expand—its warrantless surveillance o Ameri-

cans’ international communications. In eect,

candidate Obama made clear that his objection

was not to warrantless surveillance, but rather

to warrantless surveillance without congressio-

nal approval. And over the last eighteen months,

President Obama’s administration has deend-ed the FISA Amendments Act in the same way

that the last administration did so: by insisting

that the statute is eectively immune rom judi-

cial review. Individuals can challenge the stat-

ute’s constitutionality, the administration has

proposed, only i they can prove that their own

communications were monitored under the stat-ute; since the administration reuses to disclose

whose communications have been monitored,

the statute cannot be challenged at all. In some

ways, the administration’s deense o the statute

is as troubling as the statute itsel.

The Obama administration has been reluctant to

yield any o the expansive surveillance powers

claimed by the last administration. It has pushed

or the reauthorization o some o the Patriot

Act’s most problematic surveillance provisions.And like the Bush administration, the Obama

administration has invested border agents with

the authority to engage in suspicionless search-

es o Americans’ laptops and cell phones at

the border; Americans who return home rom

abroad may now nd themselves conronted with

a border agent who, rather than welcoming them

home, insists on copying their electronic records

—including emails, address books, photos, and

videos—beore allowing them to enter the coun-

try. (Through FOIA, the ACLU has learned thatin the last 20 months alone, border agents have

used this power thousands o times.)

The Obama administration has also adopted




some o the Bush administration’s arguments

on issues relating to ree speech. In an impor-

tant case that reached the Supreme Court, the

Obama administration took the position that it

could prosecute individuals under a statute that

bars the provision o “material support” to ter-rorist organizations even i the support in ques-

tion consists solely o speech—advice on issues

relating to international law, or example, or on

peaceul resolution o conficts. In a dispiriting

oral argument, Solicitor General Elena Kagan

even proposed that lawyers could be sent to

prison or ling riend-o-the-court bries on

behal o designated terrorist organizations. The

Supreme Court ultimately adopted many o the

administration’s arguments and issued a deci-

sion that can airly be described as a catastropheor the First Amendment.

There is one area in which the Obama adminis-

tration has made a notable break with the poli-

cies o the last administration. During the last

administration, dozens o oreign writers, schol-

ars, and artists were denied visas to visit the

United States because they held political viewsthat the administration disavored. Many o the

excluded individuals were critics o American

oreign policy. Early this year, the Obama admin-

istration ended the exclusions o two particularly

prominent oreign intellectuals—Tariq Ramadan,

a proessor at the University o Oxord, and Adam

Habib, the Vice-Chancellor o Research at the

University o Johannesburg in South Arica. The

decision to end these exclusions represented an

important victory or ree speech and the ree

exchange o ideas across international borders.




WATCH LISTS

The national security establishment’s record in

creating and managing watch lists o suspect-

ed terrorists has been a disaster that too otenimplicates the rights o innocent persons while

allowing true threats to proceed unabated. This

regrettable outcome is partly a result o misman-

agement and partly due to the deceptive diculty

o creating identity-based systems or providing

security. These ailures have been documented

in a long string o government reports, which

are consistent in their identication o persis-

tent design faws and ongoing, unacceptably high

error rates.26 In May 2009 the Department o Jus-

tice Inspector General ound that many subjectso closed FBI investigations were not taken o the

list in a timely manner, and tens o thousands o

names were placed on the list without appropri-

ate basis.27 A 2009 report by the Inspector Gen-

eral o DHS detailed extensive problems with the

redress process or people improperly identied

on watch lists.28 Further, because o outmoded

inormation technology systems, the method or

clearing the names o people who pose no threat

to national security rom watch lists is plagued

by delays, and DHS can’t even monitor how manycases it resolves. Yet in the wake o Umar Farouk

Abdulmutallab’s ailed Christmas Day bomb-

ing, National Counter-Terrorism Center Deputy

Director Russell Travers told Congress that the

watch list architecture “is undamentally sound,”and suggested that the lists would soon be get-

ting bigger: “The entire ederal government is

leaning very ar orward on putting people on

lists.”29

Indeed, rather than reorm the watch lists the

Obama administration has expanded their use

and resisted the introduction o minimal due pro-

cess saeguards to prevent abuse and protect civ-

il liberties. The Obama administration has added

thousands o names to the No Fly List, sweepingup many innocent individuals. As a result, U.S.

citizens and lawul permanent residents have

been stranded abroad, unable to return to the

United States. Others are unable to visit amily on

the opposite end o the country or abroad. Indi-

viduals on the list are not told why they are on the

list and thus have no meaningul opportunity to

object or to rebut the government’s allegations.

The result is an unconstitutional scheme under

which an individual’s right to travel and, in some

cases, a citizen’s ability to return to the UnitedStates, is under the complete control o entirely

unaccountable bureaucrats relying on secret evi-

From let to right: Ayman Lati, Adama Bah, Raymond Earl Knaeble, Halime Sat, and Steven Washburn; plaintis in an ACLUchallenge to the “No Fly List”




dence and using secret standards. The ACLU has

led a lawsuit challenging this lack o due pro-

cess.

The ACLU has also challenged the government’s

authority to reeze the assets o U.S. charities“pending investigation” without any judicial pro-

cess and on mere suspicion that they engaged

in prohibited transactions. In Kindhearts v. Geith-

ner, a ederal district court recently held that

the government cannot simply reeze a charity’s

assets now, and ask questions later. Rather, the

court ruled that the government must rst at

least establish probable cause that some viola-

tion occurred, and that the charity must have an

opportunity to rebut the government’s allega-

tions. The Obama administration continues to

oppose even this small measure o due process,

insisting in court lings that the protections o

the Fourth Amendment are inapplicable to thewholesale reezing o a U.S. entity’s property.

Instead o appealing a sensible court decision,

the administration should settle this litigation

and work with Congress to enact a constitutional

scheme that combats terrorist nancing while

respecting the constitutional rights o American

citizens and charitable entities.




CONCLUSION

President Obama will be in oce at least through

2012, and perhaps through 2016. But the policies

the Obama administration pursues on the issuesdiscussed in this report will have implications

that will extend ar beyond this presidency. That

is why it is so critical that the administration right

its course and keep aith with our nation’s high-

est ideals and aspirations.

There can be no doubt that the Obama adminis-

tration inherited a legal and moral morass, and

that in important respects it has endeavored to

restore the nation’s historic commitment to the

rule o law. But i the Obama administration doesnot eect a undamental break with the Bush

administration’s policies on detention, account-

ability, and other issues, but instead creates a

lasting legal architecture in support o thosepolicies, then it will have ratied, rather than

rejected, the dangerous notion that America is in

a permanent state o emergency and that core

liberties must be surrendered orever.

The ACLU will continue to monitor the impact o

the administration’s national security policies on

civil liberties and human rights. Our hope is that

this report, published less than hal-way through

the President’s rst term, will serve as a vehicle

or refection and urther dialogue.




ENDNOTES

1 Presidential Memorandum on Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2010), http://www.

whitehouse.gov/the-press-oce/transparency-and-open-government.

2 Presidential Memorandum on the Freedom o Inormation Act, 74 Fed. Reg. 4683 (Jan. 21, 2010), http://www.white-

house.gov/the-press-oce/reedom-inormation-act.

3 Exec. Order No. 13,526, 75 Fed. Reg. 705 (Dec. 29, 2009) (Classied National Security Inormation), http://www.white-

house.gov/the-press-oce/executive-order-classied-national-security-inormation

4 Steve Bagley, FOIA Ombudsman Promises Sunshine, Main Justice (Oct. 14, 2009), http://www.mainjustice.

com/2009/10/14/oia-ombudsman-promises-sunshine-eventually/

5 Exec. Order No. 13,526, supra note 3; Oce o Mgmt. & Budget, Open Government Directive (Dec. 8, 2009), http://www.

whitehouse.gov/omb/assets/memoranda_2010/m10-06.pd.

6 Central Intelligence Agency, Oce o Inspector General, Special Review: Counterterrorism Detention and Interroga-

tion Activities, September 2001 – October 2003 (May 7, 2004), http://luxmedia.com.edgesuite.net/aclu/IG_Report.pd.

7 Oce o Pro’l Responsibility, Report o Investigation into the OLC’s Memoranda Concerning Issues Related to the

CIA’s Use o “Enhanced Interrogation Techniques” on Suspected Terrorists (July 29, 2009), http://graphics8.nytimes.com/

packages/pd/politics/20100220JUSTICE/20100220JUSTICE-OPRFinalReport.pd;Memorandum rom David Margolis,Assoc. Dep. Att’y Gen., to Att’y Gen. Eric Holder Regarding Objections to the OPR Report o Investigation into the OLC’s

Memoranda Concerning Issues Related to the CIA’s Use o “Enhanced Interrogation Techniques” on Suspected Terrorists

(Jan. 5, 2010), http://graphics8.nytimes.com/packages/pd/politics/20100220JUSTICE/20100220JUSTICE-DAGMargolis-

Memo.pd.

8 Protected National Security Documents Act o 2009, Pub. L. No. 111-83, § 565, 123 Stat. 2142, 2184-86.

9 Dean Yates, Reuters Seeks US Army Video of Staff Killed in Iraq, July 11, 2008, http://www.reuters.com/article/

idUSL05399965; David Schlesinger, War Journalists Have Right to Safety , Guardian (U.K.), Apr. 21, 2010, http://www.guard-

ian.co.uk/commentisree/ciamerica/2010/apr/21/war-journalists-right-saety.

10 Exec. Order No. 13,491, 74 Fed. Reg. 4891 (Jan. 22, 2009) (Ensuring Lawul Interrogations), http://www.whitehouse.

gov/the_press_oce/EnsuringLawulInterrogations/

11 Memorandum rom David J. Barron, Acting Ass’t Att’y Gen. to Att’y Gen. Eric Holder Regarding Withdrawal o Oce

o Legal Counsel CIA Interrogation Opinions (Apr. 15, 2009), http://www.justice.gov/olc/2009/withdrawalocelegalcoun-

sel.pd.

12 Statement o President Barack Obama on Release o OLC Memos (Apr. 16, 2009), http://www.whitehouse.gov/the_

press_oce/Statement-o-President-Barack-Obama-on-Release-o-OLC-Memos/

13 Brie in Opposition to Petition or Certiorari, Arar v. Ashcroft, No. 09-923 (May 12, 2010).

14 See, e.g., Brie o the United States, Padilla v. Yoo, No. 09-16478 (9th Cir. Dec. 3, 2009).

15 Senator Barack Obama, Remarks at the Wilson Center, The War We Need to Win (Aug. 1, 2007), http://www.baracko-

bama.com/2007/08/01/the_war_we_need_to_win.php

16 Barack Obama, Renewing American Leadership, Foreign Aairs, July/Aug. 2007.

17 Obama, The War We Need to Win, supra note 14.

18 Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009) (Review and Disposition o Individuals Detained at the

Guantánamo Bay Naval Base and Closure o Detention Facilities).

19 Abdah v. Obama, No. 04-1254, __ F. Supp. 2d __, 2010 WL 2326041 (D.D.C. May 26, 2010).

20 President Barack Obama, Remarks on National Security at the National Archives (May 21, 2009), http://www.white-

house.gov/the_press_oce/Remarks-by-the-President-On-National-Security-5-21-09/.

http://www.whitehouse.gov/the-press-office/transparency-and-open-government


http://www.whitehouse.gov/the-press-office/freedom-information-act


http://luxmedia.com.edgesuite.net/aclu/IG_Report.pdf

http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICE-OPRFinalReport.pdf


http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICE-DAGMargolisMemo.pdf






http://luxmedia.com.edgesuite.net/aclu/IG_Report.pdf








21 Id.

22 Julian E. Barnes, U.S. Hopes to Share Prison with Afghanistan, L.A. Times, June 9, 2010.

23 Obama, The War We Need to Win, supra note 14.

24 Id.

25 Interview by Eric Schmidt with Senator Barack Obama at Google (Nov. 14, 2007), http://www.youtube.com/

watch?v=m4yVlPqeZwo.

26 See for example, GAO Report to Congressional Requesters, GAO-03-322 Terrorist Watch Lists Should Be Consolidated

to Promote Better Integration and Sharing (April 2003); Department o Homeland Security, Oce o Inspector General,

OIG-04-31 DHS Challenges in Consolidating Terrorist Watch List Information (August 2004); Department o Justice, Oce

o the Inspector General, Audit Report 05-27 Review of the Terrorist Screening Center (Redacted for Public Release) (June

2005); Department o Justice, Oce o the Inspector General, Audit Report 05-34, Review of the Terrorist Screening Cen-

ter’s Efforts to Support the Secure Flight Program (Redacted for Public Release) (August 2005); Department o Justice,

Oce o the Inspector General, Audit Report 07-41, Follow-Up Audit of the Terrorist Screening Center (Redacted for Public

Release) (September 2007); Department o Justice, Oce o the Inspector General, Audit Report 08-16, Audit o the U.S.

Department o Justice Terrorist Watchlist Nomination Processes (March 2008); Department o Justice, Oce o the

Inspector General, Audit Report 09-25, The Federal Bureau of Investigation’s Terrorist Watchlist Nomination Practices (May

2009); Department o Homeland Security, Oce o Inspector General, OIG-00-103, Effectiveness of the Department of

Homeland Security Traveler Redress Inquiry Program, (September 2009).

27 Department o Justice, Oce o the Inspector General, The Federal Bureau of Investigation’s Terrorist Watchlist Nomi-

nation Practices (May 2009), Audit Report 09-25.

28 Department o Homeland Security, Oce o Inspector General, Eectiveness o the Department o Homeland Secu-

rity Traveler Redress Inquiry Program OIG-00-103 (September 2009).

29 See The Lessons and Implications of the Christmas Day Attack: Watchlisting and Pre-Screening, Hearing of the S. Comm.

On Homeland Security and Governmental Affairs, 111th Cong. (2010)(Statement o Russell Travers, Deputy Director National

Counterterrorism Center); and Mike McIntire, Ensnared by Error on Growing U.S. Watchlist, New York Times, Apr. 6, 2010,

at: http://www.nytimes.com/2010/04/07/us/07watch.html?pagewanted=all.

http://www.nytimes.com/2010/04/07/us/07watch.html?pagewanted=all

http://www.nytimes.com/2010/04/07/us/07watch.html?pagewanted=all

072910 ACLU Obama Establishing New Normal

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