By William Fisher
Human rights and open-government advocates were heartened by President Barack Obama’s pledge during his first week in office to create “an unprecedented level of openness in Government” and “establish a system of transparency, public participation, and collaboration.”
But now, well into Obama’s second 100 days in office, many are expressing outrage and disappointment that many of the president’s decisions have followed the path of his predecessor, President George W. Bush.
The Obama administration has invoked the "state secrets" privilege several times to prevent lawsuits dealing with “extraordinary renditions” and warrantless wiretapping from ever being heard in court. Department of Justice (DOJ) lawyers have argued that detainees at Bagram Air Force base in Afghanistan have no right to challenge their detention.
The government has also caved to Democrats and Republicans in Congress to keep any of the Guantanamo Bay detainees from ever entering the U.S., even though the Defense Department (DOD) has cleared these men for release and declared that they present no threat to U.S. national security. Reliable reports suggest that Obama is considering “indefinite detention” for GITMO detainees who cannot be tried in U.S. courts because the evidence against them was obtained through torture. The government has gone to court to appeal a court ruling ordering the release of a 2004 report from the Inspector General of the Central Intelligence Agency (CIA) describing the harsh treatment of prisoners in the agency’s secret prisons. And the new president has refused to make public photographs reportedly depicting abusive interrogations at these and other government detention centers.
Obama recently rejected a Freedom of Information Act (FOIA) request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies because the disclosure of such records might impinge on privileged "presidential communications."
On the issue of electronic surveillance, the new president has not repudiated the Bush-era executive orders supporting warrantless wiretapping and the legal opinions used to support them. Obama has resisted a “truth commission” to investigate former officials who allegedly broke the law and committed crimes, saying he would rather look forward than back.
Government lawyers asked a federal judge to dismiss a lawsuit brought on behalf of a couple who were placed on a terrorist watch list. And when watchdog group Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request to the Justice Department seeking records related to former vice president Dick Cheney's interview with the Federal Bureau of Investigation (FBI) in the “outing” of CIA operative Valerie Plame, the Justice Department declined to turn over the records.
Our interviews with human rights and open-government advocates produced few explanations of the president’s actions, beyond calls for him to live up to his promises.
But a few have offered insights as to the “why” of what they see as Obama’s U-Turn. Among them is Professor Francis A. Boyle of the University of Illinois law school. He told IPS, “After winning the Democratic Party against Senator Clinton by appealing to its progressive wing, Obama immediately veered far to the right and co-opted all of the Clinton people into his campaign and then administration. So what we are seeing now is a Third Clinton Term with a continuation of many of the same foreign and domestic policies pursued by the Bush Jr. administration.”
He added, “This has little to do with personnel and personalities. It has to do structurally with the preservation and further extension of the American Empire abroad that necessarily requires the further consolidation of an American Police State at home. Hence the Obama administration has continued to ratify the illegal and unconstitutional policies of the Bush administration in court cases across the board, while escalating the Bush admistration's imperialist intervention into Afghanistan and now expanding it into Pakistan.”
Another explanation came from Michael Ratner, president of the Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to represent Guantanamo prisoners.
He asked rhetorically in response to an IPS reporter’s question,
“Why did Obama make promises about less secrecy, transparency and a narrowed state secrets privilege and proceed to have his administration assert positions and back legislation that was directly contrary to those promises? In the U.S., we complain about Chile hiding the crimes of the Pinochet regime, or Germany hiding the Nazi crimes or Russia the crimes of the KGB, yet where is the screaming when President Obama hides the war crimes of the Bush administration?”
His answer: “In part, the recent blatant assertions of secrecy are to hide crimes of former and some current officials. That is why President Obama is keeping the torture photos hidden. That is why he is continuing to assert broad state secret claims to try and hide the rendition program. That is why the 2004 CIA report on the secret site interrogations will be released with heavy redactions. Not only would the photos and documents implicate the Bushies, but remember some of those abuses were apparently committed by units under the command of the recently appointed commander in Afghanistan, General (Stanley) McChrystal. Some of the crimes were allegedly approved or committed by the current Deputy Director of the CIA, Stephen Kappes, who is keeping his job.”
“Release of the torture and abuse information and especially the photos would put incredible pressure on President Obama to actually hold accountable the torture team. This is not something he wants to do. He wants to ‘move on’, but he will never be able to ‘look forward’ to the future without torture until and unless the perpetrators of torture are punished,” he declared.
Chip Pitts of the Bill of Rights Defense Committee offers another perspective. He told IPS, ““There are undoubtedly elements of truth in each of the theories – or excuses – I’ve imagined or heard for the president’s broken January promise.”
“But the hedging and retaining litigation and other exceptions, instead of restoring the full presumption of transparency and openness in interpreting FOIA, are as disappointing as the hedging and retaining exceptions on other core planks of the rule of law, such as the prohibition on torture, military commissions, preventive detention, and maintaining ubiquitous surveillance.”
He added, “The free information flows and social networking technologies in the Iranian protests are only the latest indication of transparency’s new historical power. Obama himself recognized in that context the new meaning for Martin Luther King’s injunction that “the arc of the moral universe is long, but bends toward justice.”
“Obama would be better-advised to be on the right side of that history than on the side of darkness and cover-up,” he said.
A more hopeful note comes from Peter M Shane, a law professor at Ohio State University. He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”
But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”
How the new administration will ultimately resolve its conflicts between secrecy and open government remains to be seen. But, as President Obama said over the weekend in relation to the current Iranian conflict, “the world is watching.”