Wednesday, April 29, 2009

Obama's First 100

Much is being made of President Obama's first 100 days in office and the tone that has been set for his policies during this time period. Various organizations, pundits, and politicians are issuing their own assessment on President Obama's performance thus far and attempting to read the tea leaves for what lies ahead.

Personally, I think that much of this coverage can be overblown and seem a little silly. It reminds me of ridiculous "holidays" like Sweetest Day where you ask yourself, is all the attention really that necessary? 100 is a nice, round number and all, but it really doesn't signify too much if you really think about it.

Regardless, the chatter persists and perhaps we can be persuaded to find value in taking a little time to review some of the actions taken by the Obama Administration (not that we haven't been doing this on Days 34, 81, and 94 of his Presidency).

Concentrating on foreign policy in this entry, I found myself agreeing with much of the assessment given by Human Rights Watch in their "Report Card" that they issued today. They broke down their report into areas in which President Obama has achieved key accomplishments, has made missteps and missed opportunities, and decisions where the jury is still out on how events will play out.

Key Accomplishments that are listed in the Report Card are:

- Closing Secret CIA Prisons
- Implementing the Ban on Torture and Cruel, Inhuman or Degrading Treatment
- Repudiating Past Authorizations for Torture
- Bringing Saleh Kahlah al-Marri to Justice

Certainly, these decisions are worthy of praise and the speed with which some of these decisions were made (two days into office for some) underscores the vehement opposition that this Administration has to these policies. The President's decision to release the Bush era "torture memos" indicates that this Administration is interested in greater transparency and setting themselves apart from some of the Orwellian doublespeak and outright lies of the last eight years.

Some of the Missteps and Missed Opportunities listed in the Human Rights Watch report are as follows:

- Maintaining that the War is a rationale for holding suspected terrorists indefinitely without Trial
- Denying basic rights to prisoners at Bagram
- Adhering to the Bush Administration's Expansive View of the State Secrets Privilege

These missteps, in my view, are very problematic are incredibly discouraging for the hope of a fundamental change away from the policies of the last eight years. From the report:

One of the most potentially far-reaching Obama administration positions came to light in a Justice Department brief filed in Guantanamo litigation. On March 13, in response to a federal court order seeking a definition of the term "enemy combatant," the Obama administration claimed the authority to pick people up anywhere in the world on the grounds of support for or association with al Qaeda or the Taliban, and to hold them indefinitely in military detention. Rather than rejecting the Bush administration's ill-conceived notion of a "war on terror," the Obama administration merely discarded the phrase and tinkered with its form. The position expressed in the filing was a worrisome portent for the administration's future detention decisions.

This decision far from reverses the policy of the Bush Administration but is rather a continuation of the practice of indefinite detention without charge or trial. Closing Guantanamo Bay is a good thing, but it is merely treating a symptom without addressing the underlying disease of indefinite detention without a right to be charged or challenge said detention.

Also alarming is the Obama Administration's position on the use of the State Secrets Privilege. Not only is the Obama Administration using much of the same reasoning that the Bush Administration used surrounding this issue, but they have attempted to expand the rationale for using this privilege. Glenn Greenwald from February:

What was abusive and dangerous about the Bush administration's version of the States Secret privilege -- just as the Obama/Biden campaign pointed out -- was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security. That is the theory that caused the bulk of the controversy when used by the Bush DOJ -- because it shields entire government programs from any judicial scrutiny -- and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).

The Obama Administration certainly had a golden opportunity to reign in some of the expanded executive powers that the Bush Administration worked so hard to fight for over the last eight years, but instead, they have shown a willingness to adapt to and even defend these very same powers that Obama once criticized while running for office.

The final category that Human Rights Watch listed on their report card dealt with "Ongoing or Incomplete Reforms". Listed under this category was:

- Closing the Military Detention Center at Guantanamo Bay
- Suspending the Unfair Military Commissions
- Accounting for Past Abuses
- Ensuring that Prisoners are not Returned to Torture

It will be important to see how this Administration deals with these significant issues. While Obama has pledged to close down the detention facility at Guantanamo Bay, it is unclear how he will handle the estimated 240 prisoners that are being detained. A thorough review of each case is needed and those detainees who the government finds have credible evidence pending against them should be tried while those are being held on little to no evidence should be released.

While the heading in the Human Rights Watch report is labeled "Accounting for Past Abuses", they make clear that we need not simply account for these abuses, but assure that they never happen again by launching a thorough and wide-ranging investigation into the policies implemented after 9/11. From the report:

President Obama initially signaled a willingness to set up a non-partisan commission to investigate the abuses, but his office quickly backed away from the idea. The president also seems to have ruled out prosecuting CIA agents who carried out orders that they believed were legal, but the president left open the possibility of prosecuting those higher up the chain of command who gave orders to the CIA permitting detainees to be tortured.

Human Rights Watch urges President Obama to work with Congress to set up a commission of inquiry to investigate, document, and publicly report on post-9/11 counterterrorism-related abuses. The commission should make specific recommendations for individuals to be criminally investigated.

This recommendation by Human Rights Watch is not only appropriate for a country that prides itself on being a nation of laws, but necessary. An open inquiry into these abuses with recommendations for prosecution are the only way that we can, as Obama often mentions, productively "move forward". We cannot be a nation of Peggy Noonans and simply pretend that none of this happened. We must first address the issue and then work to hold those who broke the law to account for their crimes. A Truth Commission, like the one proposed by Senator Patrick Leahy (D-VT), is simply not enough. While getting to the bottom of everything is important, it will be meaningless if the law is not upheld with consequences for its breach.

President Obama is correct to receive mixed reviews for his first 100 days in office. As noted above, there is some good, some bad, and some that is undecided. Much of the undecided is critical to see whether, as I wrote about before the election, this President will be a man who adapts to the existing institutions or a man who is ready to tear them down with the goal of building something better. This is Obama's challenge.

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