Guantanamo Is Still Open: Obama’s Unfinished Human Rights Agenda

One year ago today, President Barack Obama promised to close the Guantanamo detention camp, as soon as possible and in “no later than 1 year.”

Guantanamo is still open. Why does this symbol of the betrayal of fundamental American values remain open and what does it say about Obama’s pledge to launch a dynamic change from the Bush years and restore the rule of law?

Within two days of being sworn in, on January 22, 2009 Obama keep an important campaign pledge by signing an Executive Order to close Guantanamo within one year. The Order recited that over the previous 7 years approximately 800 individuals had been detained there, 500 of whom had been released or transferred to third countries. Obama noted that some detainees had been held for more than 6 years and most at least 4 years.

Obama made an express finding that the “prompt and appropriate disposition” of the remaining detainees “would further the national security and foreign policy interests of the United States and the interests of justice.” The Order also confirmed that these detainees “have the constitutional privilege of the writ of habeas corpus.”

The failure to close Guantanamo on time comes in the midst of some highly critical appraisal’s of Obama’s first year in office, not as one would expect from his Republican opponents, but from his natural allies.

Writing in The Atlantic last week, Andrew Cohen, observed that on Inauguration Day “the liberal legal establishment was drooling over itself at the prospect of a Democratic administration applying its version of the ‘rule of law’ to American life,” yet one year later, “we can say with certainty only that things did not get worse.”

A New York Times editorial on January 14 lamented that “Obama’s campaign ambition has been diluted with a pragmatism that has been the hallmark of Year One – without much of the progress he had hoped.”

In a column published January 12, entitled “George W. Obama,” Nat Hentoff writes: “But now, Bush’s successor – who actually taught constitutional law at the University of Chicago – is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.”

And perhaps the harshest critique came from Roger D. Hodge, the editor of Harper’s Magazine, in his latest column entitled “The Mendacity of Hope,” in which he writes that as “president, with few exceptions, Obama either has embraced the unconstitutional war powers claimed by his predecessor or has left the door open for their quiet adoption at some later date.”

“Obama has set a trap for himself, but because he is such a clever politician, the spring is just as likely to fall on us instead,” writes Hodge. “Such insidious governance demands serious, sustained opposition, not respectful disagreement or fanciful historical apologies or mournful lamentations about the tragedy of his presidency. Principles can be sacrificed to hopes as well as to fears.”

President Obama has sent his Justice Department lawyers to court to defend Bush policies and practices which senator and/or candidate Obama had roundly condemned, including indefinite detention without charges or trials, the use of the state secrets privilege to dismiss entire lawsuits brought by innocent victims of Bush’s “War on Terror,” blocking the release of photographs disclosing the widespread torture and abuse of detainees in U.S. military facilities around the world, warrantless wiretapping of American citizens and the CIA’s use of private airlines to transport individuals to foreign countries known to engage in torture and abuse prohibited by international law.

In addition, Obama has embraced the Patriot Act; reserved the authority to use “rendition” to capture individuals and transport them to foreign countries known to torture; preserved military commissions for an unspecified group of detainees who are not afforded their constitutional rights in a criminal trial and reserved the power to issue national security letters to obtain records without a court order.

All this despite the fact that in a speech in Washington in August 2007 he criticized Bush’s claims of “unchecked presidential power” and vowed to reject the Military Commissions Act and adhere to the Geneva Conventions, which he said meant “no more illegal wiretapping of American citizens, no more national-security letters to spy on citizens who are not suspected of a crime” and “no more ignoring the law when it is inconvenient.”

And all this despite the fact that just a few years ago in his book The Audacity of Hope, Obama wrote that “when we detain suspects indefinitely without trial,” then “ we weaken our ability to pressure for human rights and the rule of law in despotic regimes.”

In an indepth look at Obama’s approach to national security in last Sunday’s New York Times, Peter Baker reported that a “half-dozen former senior Bush officials involved in counterterrorism” told him before the attempted airline bombing on Christmas Day that “for the most part, they were comfortable with Obama’s policies” and that Bush himself hopes that he will look better in the eyes of history if his successor preserved most of what he had put into place.

Surely, the national security threats to the United States take on a more immediate gravity once one is serving as President than running for President. And surely those who are criticizing Obama for failing to repudiate what Bush did in the name of fighting terrorism fully realize that an administration led by John McCain and Sarah Palin would have embraced far more of Bush’s policies and practices.

But given the promises of Hope and Change on which Obama based his entire campaign, and his vision that the United States can be both safe and free, is it too much to ask the President not to compromise on this country’s fundamental principles and that he and his Justice Department develop more robust and independent policies when it comes to civil liberties and human rights that reject Bush’s rampant abuse of executive authority and adhere more faithfully to the Constitution and our international treaty obligations?

Obama is not alone to blame for failing to close Guantanamo. Leaders in Congress, both Democrat and Republican, voicing hysterical fears of allowing terrorists into the United States, have restricted the administration’s ability to transfer detainees to domestic prisons and so far have refused to authorize funds Obama sought to purchase the Thomson Correctional Center, a nearly vacant maximum-security Illinois prison.

Likewise, wails of opposition were raised when Attorney General Eric Holder announced that Khalid Shaikh Mohammed and others suspected terrorists would be prosecuted in federal court in New York.

Yet in the midst of all this shrill fear-mongering, it has been largely ignored that since the late 1980s, there have been approximately 135 terrorism prosecutions in our federal criminal system, of which 119 were filed after 9/11 involving 289 defendants, according to a July 2009 report from human Rights First, written by two former federal prosecutors, which concluded that “the federal courts have a proven track record of serving as an effective and credible system for prosecuting and incapacitating terrorists.”

When Obama took office last year, he promised to “restore the standards of due process and the core constitutional values that have made this country great.” It is time for him to do just that.

Stephen Rohde, a constitutional lawyer and author, is Chair of the ACLU Foundation of Southern California and President of Interfaith Communities United for Justice and Peace.