While the Obama administration has made progress in its first year on some civil liberties and civil rights issues, its record on others such as privacy and surveillance is mixed, according to a report prepared this week by the American Civil Liberties Union (ACLU).
Out of 142 recommendations made, the administration acted on just over one-third of them, sometimes leaving previous policies it inherited from the Bush administration relatively intact.
The Obama administration, however, carried out seven of the nine highest-priority “Day One” recommendations the ACLU made, such as ending the use of torture, closing the CIA’s “black site” prisons and shutting down Guantánamo Bay. They were addressed in executive orders issued days after President Obama was sworn into office.
However, the administration still has not explicitly prohibited extraordinary renditions, and also lacks the eagerness for a full review of possible detainee-abuse cases or investigation of the Bush administration officials who authorized so-called “enhanced interrogation techniques.”
Regarding Guantánamo, Obama signed an executive order last year that called for the prison to be shut down this month and some of the detainees to be incarcerated at supermax prisons in the US. But Congress has been reluctant to help the president facilitate the closure due, in part, to fears of political repercussions come November’s midterm elections.
Complicating matters was the failed Christmas Day plot to blow up a Northwest Airlines jet bound for Detroit by a Nigerian radicalized in Yemen. Obama suspended the transfer of about three dozen Yemeni detainees who were cleared for release because of unfounded claims that they could be recruited by a branch of al-Qaeda in Yemen. Meanwhile, Democrats and Republicans have urged the president to rethink his plan for permanently shutting down the facility.
The report said the Obama administration has failed to implement the ACLU’s recommended changes regarding domestic surveillance, monitoring of political activists, terrorist watchlists and the Real ID Act.
Though Obama kept previous policies from the Bush administration such as the Patriot Act, it amended them somewhat to protect privacy and prevent gross abuses of power – but not enough to avoid having its record called “weak” by the ACLU in a statement Tuesday.
The report said that as required by the Foreign Intelligence Surveillance Act (FISA), the Obama administration needed to submit minimization procedures on the information-gathering methods the act grants. As of right now, however, “no publicly available information about the status or substance of those problems” exists.
During his campaign, President Obama promised to filibuster the FISA bill as long as it had a clause giving retroactive immunity to telecommunications companies. He then reversed his stance in June 2008, saying that the new bill was far from perfect – it still gave retroactive immunity, among other things – but still a compromise with more judicial oversight procedures and accountability that he preferred over not having such surveillance tools at all. In a statement to his supporters, he added that, as president, he would recommend actions to “preserve civil liberties and prevent executive branch abuse in the future” as needed.
In fall 2009, however, the Obama administration signaled it wanted to renew three key provisions in the Patriot Act and did so in December. The provisions allowed for “roving wiretaps” to be granted without identifying the target and warrants for business records such as banking or library ones, as long as the targets involved were shown to be relevant to foreign intelligence gathering or a terrorist investigation. The final one was a “lone wolf” provision allowing the monitoring of an individual without needing to show that the person is of relevant interest, though the government said this has never been used.
Michael Macleod-Ball, the acting director of the ACLU Washington Legislative Office, said that they knew the provisions would go through, but hoped that the administration would at the same time reform other parts of the Patriot Act that had been or could easily be abused, such as the FBI’s use of national security letters and exigent letters.
“There is evidence documenting these abuses that would allow Congress to determine how to narrow these authorities, yet no one in the administration or Congress wants to move in this direction,” he said.
Some worry that this inaction could cause these policies to stick around for a long time.
“Our hope a year ago was that the Obama administration would restore our nation’s long tradition of respect for privacy and the rule of law by rolling back the privacy-invading domestic security policies enacted by the Bush administration,” said ACLU’s executive director Anthony D. Romero in a statement. “Unfortunately, many of those policies have not been reversed, and we now run the risk of seeing them become a permanent part of American life.”
Regarding open government and civil rights, the Obama administration has acted on more of what the ACLU has indicated, or half of its recommendations.
It did make government more transparent with changes to the Freedom of Information Act by rescinding the “Ashcroft Doctrine,” and an executive order and task force review in December addressed the overclassification of documents, strengthened restrictions on reclassifying once-declassified information and encouraged greater information sharing.
In the area of civil rights, there has been renewed commitment toward voting rights, investigations into patterns and practices of law enforcement cases, reproductive freedom and immigration enforcement reform.
According to the report, Tom Perez, the assistant attorney general for civil rights, has publicly signaled his commitment to and prioritization of Civil Rights Division reform and enforcement of all federal civil rights statues within his power.
The report also noted how Obama, early in his presidency, rescinded the Global Gag Rule, which had prohibited foreign aid to “organizations overseas that promote or perform abortions.”
Regarding immigration, while the Department of Homeland Security never publicly put a stop to workplace raids, it has, in practice, “replaced large-scale raids and sweeps with a policy based on employer audits.” The Supreme Court also ruled on May 4 that immigrants who didn’t know the false ID or social security number they were using belonged to someone else couldn’t be charged with identity theft, which had been done under the Bush administration.
The administration’s first year “started out with a bang” as it met and exceeded expectations regarding torture and abuse, said Macleod-Ball. “Everyone became very hopeful.”
After this period of assertiveness, however, the administration “went into its shell,” said Shahid Buttar, the executive director of the Bill of Rights Defense Committee.
He added that while there were credible explanations for the delay of action on some issues, as for others, certain theories could explain the administration’s lag. One is that constitutionalists and grassroots “rule of law” supporters haven’t been as loud as the intelligence establishment and leadership in promoting its policy goals.
“There is a need for the grassroots movement to hold the administration accountable to its own campaign promises,” Buttar said, adding that he hoped the report could energize this base. “The folks who propelled the president into office went home and left the constitution out to dry.”
The Obama administration might also be spending a great deal of energy on domestic social policy. “Health care has sucked all the air out of the room,” Buttar said.
President Obama might also be waiting for the right political cover to deal with the rule of law issue, especially as he does not want to seem weak on national security issues.
“We can fault the administration, Congress, or American people,” said Shahid Buttar. “But we’re not caring enough in making rule of law a bigger issue.”
Officials from the White House could not be reached for comment.
Still, Macleod-Ball said that the administration’s openness to discussing these issues with them and acting on one-third of the suggested recommendations was a good start. “We had a sense that there were going to be … other things that were pretty complicated that they needed to think through.” With Guantánamo, for example, it was understood from the outset that it would take some time to fix.
Even though the ACLU called for the government to take care of a good deal of the items in its first year, he said, “We recognized it would be pie-in-the-sky thinking to think they’d get everything done in one year.”