Wednesday, April 29, 2009


By William Fisher

While human rights and open-government groups are generally pleased with President Barack Obama’s rhetoric during his first 100 days, some are skeptical that he will deliver on his promises.

Typical is Amnesty International. The group says, “President Obama has made a promising start in improving the United States' human rights record in his first 100 days in office, but he must now deliver on his promises.”

The London-based rights group praised Obama for declaring that he will close the Guantanamo Bay prison, but it said after an "auspicious start" in making a swift announcement, more than 240 detainees are no closer to freedom.

"The bottom line is that... unlawful detentions at Guantanamo Bay continue, and for the vast majority of the detainees, the change in administration has so far meant no change in their situation," Amnesty said.

The group also expressed concerns about suspects held at Bagram airbase in Afghanistan, which it said remained "shrouded in secrecy." Obama had inherited a "unique opportunity" to dismantle the Bush administration's apparatus for the war on terror which had produced "brutal practices and broken lives," Amnesty said.

"The closure of Guantanamo must mark the end of the policies and practices it embodies, not merely shift those violations elsewhere, whether to Bagram... or anywhere else," Amnesty said.

The Center for Constitutional Rights – which has mobilized a small army of pro-bono lawyers to defend Guantanamo detainees – praised Omaba’s rhetoric but cautioned that “in many areas of critical importance – like human rights, torture, rendition, secrecy and surveillance – his words have been loftier than his actions.”

Vince Warren, CCR executive director, says, “On Obama's very first day in office, his administration ordered a 120-day suspension of the military commissions for Guantanamo detainees. The commissions were widely assailed for allowing evidence obtained through coercion and torture, secret evidence and hearsay evidence, all in violation of the U.S. Constitution. But Obama did not abolish the military commissions; he only hit the ‘pause’ button.”

Warren faulted Obama for not moving more quickly to close the U.S. military prison at Guantanamo Bay, Cuba.

He said, “The new president's most dramatic moment came on day three when he issued executive orders to close Guantanamo's prison camp within one year. But Guantanamo isn't yet closed. The hundreds of men held there still haven't won their freedom, nor will they necessarily have their day in fair court. Another year for men who have been held in abusive and inhuman conditions for seven years already is simply too long.”

Warren said that “secrecy was the hallmark of the Bush administration. It classified more documents than any administration in history, restricted Freedom of Information Act requests and tried to protect government officials and military contractors from being held liable for illegal actions, such as torture and wrongful death.”

“It invoked the state secrets privilege to avoid scrutiny in court and
responsibility for government action more times than any other administration,” he said, but added:.

“Obama has come down on both sides of this issue, ordering far more transparency through cooperation with Freedom of Information Act requests, while at the same time invoking state secrets in a case charging an aviation corporation with complicity in rendering a detainee to torture.”

Warren was also critical of Obama on the issue of electronic surveillance. He said, “The U.S. government used to need a warrant before it could spy on its own people. In 2002, President George W. Bush issued a secret executive order illegally authorizing the National Security Agency to wiretap Americans without a warrant. When the program was exposed, the administration secured immunity from Congress for the telecommunications companies that participated in the program. Obama still has not repudiated the executive orders supporting warrantless wiretapping and the legal opinions used to support them.”

Warren said that release of the “torture memos” prepared by lawyers in the Bush Justice Department was “welcome,” but he noted that “Obama has indicated he will not prosecute former officials who broke the law and committed crimes, saying he would rather look forward than back. For there to be no consequences for creating a torture program not only calls our system of justice into question, but it also could allow the nightmare to happen all over again.”

He said, “After the Sept. 11 attacks, Bush quickly squandered the world's enormous goodwill toward the United States. The goodwill Obama has inspired can evaporate if the rest of the world begins to see his administration continuing too many of Bush's policies.”

At the same time, a leading open-government advocacy organization, OMB Watch, said, “The president and his team have made significant progress in both the right-to-know and regulatory areas.”

But it added that “there is still much work to be done as we move deeper into Obama's term in office.”

“Overall, the Obama administration has set a strong tone on transparency, but a true assessment cannot occur until the development of agency-wide policies are put in place and fully implemented,” the group said.

“During his first full day in office, Obama successfully communicated the importance of transparency to agencies and the public by issuing memorandums on the Freedom of Information Act (FOIA) and on transparency and open government.

The FOIA memo gave instructions and guidance to the attorney general on issuing new policies on the implementation of FOIA. The transparency memo directed agencies to harness new technologies to make information available to the public and for top officials to draft a blueprint Open Government Directive. These immediate actions were followed by steps to bring greater transparency to the regulatory process and to how scientific actions in government are handled,” the group said.

But it was critical of the new president on the issues of “signing statements” and use of the “state secrets privilege” to keep cases out of court on national security grounds.

It said, “Many groups considered Obama's signing statement on the 2009 omnibus appropriations bill to be an affront to whistleblower protections. These groups have interpreted Obama's signing statement as impeding the ability of government employees to communicate with Congress. Further, in repeated court cases, Obama administration officials have insisted on maintaining the Bush administration's broad interpretation of executive branch power on the issue of state secrets. There has been no public discussion of reviewing these policies for possible revision.”

OMB Watch noted that “Despite a fierce internal debate, the Obama administration has released four Bush-era ‘torture memos’ from the Department of Justice.

But, it added, “It remains to be seen if the administration will adopt a systematic approach to releasing other important documents that have been withheld from the public.”

The group noted that, in his first 100 days in office, President Obama “has made transparency a high priority and has started significant efforts in what will be a long process of getting government to be more open.”

But, it added, “Concerns and complaints have been raised by right-to-know advocates about various activities of the administration, including the usability of the White House website, transparency of legislation before the president signs it, and more. Additionally, it is difficult to accomplish much substantive change in just 100 days; much of the real test for this administration's commitment to transparency lies ahead. However, when measured against the yardstick of the five recommendations described above, it is impossible to view the administration's accomplishments as anything other than a success.”

Overall, the group concluded, Obama “has set a positive tone for the administration with his calls for increased transparency and renewed scientific integrity throughout government, his appointments of well qualified people to serve in regulatory agencies, his reversal of harmful regulatory practices and rushed deregulatory actions, and his initiation of an open process to reform the executive order that governs the rulemaking process. For these actions, the president deserves high marks.”