Feb. 23, 2009— -- As Attorney General Eric Holder travels to Cuba today to take part in a review of the Guantanamo Bay detention center, some civil libertarians and human rights groups have been feeling uneasy that they are receiving mixed signals regarding President Obama's commitment to dramatically alter the anti-terrorism policies of the Bush administration.
Although most of the groups were initially thrilled with the administration's promise to close the detention center, lately they have been worried that President Obama will not move as quickly or as definitively as they had hoped to investigate or reverse other legal positions taken by the Bush administration.
In his first week Obama issued executive orders calling for the closure of the detention center "within a year," a review of the legal status of each detainee, the shuttering of long-term CIA secret prisons abroad and the banning of some of the harshest interrogation techniques. President Obama also repudiated the legal opinions crafted during the Bush administration on topics such as torture.
At the time, Anthony Romero of the ACLU released a statement saying, "These executive orders represent a giant step forward. Putting an end to Guantanamo, torture and secret prisons is a civil liberties trifecta, and President Obama should be highly commended for this bold and decisive action so early in his administration."
But a month later, lawyers for the Justice Department chose to reassert one of the Bush administration's most controversial legal positions, by arguing in federal court in California that a national security case should be dismissed based on a "state secrets privilege." The Bush administration had argued that the case, involving alleged former detainees of the CIA's secret prison program, should be dismissed because it would cause valuable national security issues to be revealed in open court.
The ACLU was quick to react: "Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government," an ACLU statement said. "This is not change. This is definitely more of the same."
Matt Waxman, who served as deputy assistant secretly of defense for detainee affairs in the Bush administration, suggested it might be too early to conclude that the Obama administration would support a similar "state secrets privilege" in other cases that crop up.
"One should be careful in reading too much into the recent state secrets argument," he said. "However, it shows that while the Obama administration wants to distance itself from some Bush Administration practices and arguments, it will also want to preserve executive prerogatives. I expect that on many legal issues, the Obama administration will not go as far in repudiating Bush administration arguments as some camps hope."
There have been other disappointments for Democrats and human rights groups.
Sen. Patrick Leahy, chairman of the Judiciary Committee, floated the idea in a major speech at Georgetown University of creating a "truth commission" to investigate the Bush administration's Department of Justice. Later, at a press conference, President Obama did not embrace the idea saying, "I will take a look at Sen. Leahy's proposal, but my general orientation is to say, let's get it right moving forward."
"The reluctance to look back is disturbing," says Jen Nessel of the Center for Constitutional Rights, a group representing several detainees at Guantanamo. "Prosecutions may be the only way we are going to be able to ensure that we don't do this again down the road."
Last week, a Pentagon review of the conditions at the Guantanamo Bay detention center conducted by Adm. Patrick M. Walsh infuriated human rights activists because it found the conditions at Guantanamo to be in compliance with the Geneva Conventions. Tom Parker of Amnesty International released a statement, "It comes as no surprise that the Pentagon would say Guantanamo meets international human rights standards. However, there have been many well-documented accounts of abuse at Guantanamo over the past few years. When over 200 prisoners continue to be held without charge or trial -- many for more than six years, with scores in isolation and concerns about dozens on hunger strike -- it's clear the abuse of prisoners continues."
Others were concerned that the executive orders issued by the Obama administration could be less sweeping then they appear because they have a built in review process. During his confirmation hearing, CIA Director Leon Panetta, said that the executive order limiting the use of interrogation techniques to those included in the Army Field Manuel could be revised. "There is a review process that's built into that executive order that I am going to be a part of that will look at those kinds of enhanced techniques to determine how effective they were or weren't and whether any appropriate revisions need to be made as a result of that," Panetta said.
Nessel replied: "The executive orders seem to contain loop holes and lack of details."
Other groups have filed Freedom of Information Act law suits, attempting to get public access to Bush-era legal memos on issues such as interrogation techniques and wiretapping. The Obama administration has requested a delay in turning over some of the documents.
But supporters of the Obama administration say it is far too premature to make judgments to his commitment to radically change the way the Bush administration carried out its legal war on terror. They point out that the administration is thoroughly reviewing the case of every detainee. White House Counsel Greg Craig spent part of last week at Guantanamo in advance of Monday's trip by Eric Holder.
Reversing Bush Administration Policies
At Panetta's swearing-in ceremony at CIA Headquarters, Vice President Biden gave a rousing speech to CIA employees saying that the executive orders signed in the first week of office will "reverse the policies that in my view and the view of many in this agency caused America to fall short of its founding principles" and gave al Qaeda a "powerful recruiting tool."
And as Holder visits Gitmo for the first time, there are major deadlines for important cases approaching that could better define what the administration's position is going to be on the legal war on terror.
The administration has 11 months to decide how to handle the over 200 detainees remaining in Guantanamo Bay. The critical decision will be how to deal with those detainees who are considered too dangerous to release and too difficult to try in civilian court. As the administration dismantles the military commissions set up by the Bush administration it will have to find a process in or outside the current legal system with the ability to handle confessed terrorists such as Khalid Sheik Mohammed. It also has to find third-party countries willing to take on groups of detainees the administration is willing to release who cannot be sent home to their own countries out of fear they will be tortured.
The Justice Department has a March 23rd deadline to file papers on the case of Ali Saleh Kahlah al-Marri, the lone "enemy combatant" held in the United States. In 2003, President Bush signed an executive order declaring that al-Marri was "closely associated" with Al Qaeda and had "engaged in conduct that constituted hostile and war-like acts."
Unlike other enemy combatants held in the U.S. who were seized either on the battlefield or on a return trip from an alleged visit with terrorists abroad, al-Marri was living legally in Peoria, Ill., with his wife and five children when he was seized. He has been held as an enemy combatant for five years. The Supreme Court has agreed to hear his case and decide whether someone living here legally can be held indefinitely by the military without charges. The Obama administration asked for and received an extension to file its briefs in court and al-Marri's lawyer hopes Obama will reverse course from the Bush administration and either charge or release the prisoner.
The administration is also grappling with legal challenges from detainees being held in Bagram Air Force base in Afghanistan. After the Supreme court found that detainees being held in Guantanamo could challenge their detention in federal court, other detainees have tried for the same right. These challenges could be the next major legal frontier in detainee legal challenges, although experts believe courts may be very reluctant to extend U.S. constitutional protections to a foreign combat zone.
A watchdog group at the Department of Justice, the Office of Professional Responsibility, is working on the final draft of a report investigating Department of Justice attorneys in the Bush administration who provided legal guidance regarding interrogation techniques. Democratic Sens. Dick Durbin, D-Ill., and Sheldon Whitehouse, D-R.I., have asked for an update of the OPR investigation.
The senators issued a statement saying, "Our intelligence professionals should be able to rely in good faith on the Justice Department's legal advice. This good faith is undermined when Justice Department attorneys provide legal advice so misguided that it damages America's image around the world and the Justice Department is forced to repudiate it."
Holder will travel to Guantanamo with Matthew G. Olsen who he named last week to lead a new interagency task force to implement the executive order calling for a review of the status of each detainee. A final complication for the Obama administration is that in the days and weeks to come while it conducts its review, it will not have total control over the timing of decisions. Says Waxman, "Some ongoing litigation will force decisions sooner than would be hoped. Events on the ground may necessitate quick legal decisions, too."