For disillusioned Obama supporters, the ACLU’s July report “Establishing the New Normal” is not a heartening read.
After being voted into office on promises that included undoing abuses carried out under the Bush administration – promises to protect privacy, to end government-sanctioned torture and rendition programs and to end the use of military commissions for non-enemy combatants – President Obama’s administration is proving it is far easier to tow the line than buck a trend.
According to a report by the ACLU, the current White House has not just failed to meaningfully follow through on its promises, but has also taken abusive policies, and, as shown in the case of targeted and interminable detentions, eroded civil rights to unprecedented levels.
Although the ACLU applauds the administration’s condemnation of the torture and rendition programs instituted under Bush, it says these positive steps are overwhelmed by what remains uncorrected and unaddressed. Using the CIA’s destruction of 92 interrogation tapes as an example, the ACLU says that an investigation into the incident – which was approved by a CIA official and is purported to have erased torturous interrogations carried about by Americans – has dragged on for three years with no resolution in sight The length of time is a minor issue compared with what the ACLU says such foot dragging signifies: “Sanctioning impunity for government officials who authorized torture.”
Fear of an unchecked, unaccountable government permeates the ACLU’s report, particularly in the section about targeted killings. In this instance, it is not just that the Obama administration has continued a policy of targeting alleged terrorists, but that it has a new wrinkle: American citizens, such as Anwar al-Awlaki, are also being rounded up in the “O.K.-to-kill” list. The shortfalls of this approach are many, and the ACLU says that the inaccuracy of less life-and-death approaches should make such an approach intolerable. “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,” the report says.
When the accused do have legal recourse, the ACLU says the administration is also failing, and the two-tier court system available to detainees – federal courts and military commissions – does little to showcase the United States’ legal system as fair and just. Instead, the ACLU says the biased military commission system, which has a lower evidence standard and allows anonymous, third-party testimony, is also inhumane because abuse during detention or abuse during interrogations do not disqualify testimony. The ACLU says even the federal court system is tainted because it is used at the government’s discretion, and even then, only when the defense thinks losing its case is impossible.
The report also takes aim at detention itself. According to both the ACLU and the Department of Justice’s January 2010 Guantanamo Review Task Force report, there are Yemenis, who in the parlance of the Department of Justice, are eligible for “conditional detainment,” and in the language of the ACLU, “have been cleared for release after years of harsh detention.” These Yemenis can only be released under the following conditions: if there is an appropriate rehabilitation program for the detainees when and if they return home; if they cannot be repatriated to Yemen, that the third-party country has sufficient security. But first, the US has to revoke the moratorium on their release. The ACLU says, however, that this problem is not confined to Yemenis at Guantanamo, nor does blame rest solely with the president. The ACLU says Congress has also helped keep individuals, specifically Chinese Uighers, from being released.
The ACLU also asserts that the current administration has allowed the rules of detention to morph beyond reasonable limits such as geography to the point that individuals can be picked up in areas that are not war zones, transported to detention centers that are in war zones, and then, based on the location of their detention, treated as though they were captured in battle areas. Such power, the ACLU says, makes everyone a combatant. The ACLU indicates the domestic impact of this logic could erase civil rights, particularly if a Thompson, Illinois, prison becomes a holding place for Guantanamo detainees. “We fear that if precedent is established that terrorism suspects can be held without trial in the United States, this administration and future administrations will be tempted to bypass routinely the constitutional restraints of the criminal justice system,” the report says.
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