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.

More Evidence of Torture Still Translates to Zero Accountability

Recently, over at The Public Record, Jason Leopold took a look at some recently declassified documents from the Department of Defense that continue to make it clear that the Bush Administration knowingly put procedures into place that allowed for the abuse and torture of detainees in U.S. custody. The ACLU has also released reports on five detainee deaths that have occurred in Afghanistan and Iraq. From the Leopold:

Those documents which span thousands of pages include:

• Investigation of two deaths at Bagram. Both detainees were determined to have been killed by pulmonary embolism caused as a result of standing chained in place, sleep depravation and dozens of beatings by guards and possibly interrogators. (Also reveals the use of torture at Gitmo and American-Afghani prisons in Kabul).
• Investigation into the homicide or involuntary manslaughter of detainee Dilar Dababa by U.S. forces in 2003 in Iraq.
• Investigation launched after allegations that an Iraqi prisoner was subjected to torture and abuse at “The Disco” (located in the Special Operations Force Compound in Mosul Airfield, Mosul, Iraq). The abuse consisted of filling his jumpsuit with ice, then hosing him down and making him stand for long periods of time, sometimes in front of an air conditioner; forcing him to lay
  down and drink water until he gagged, vomited or choked, having his head banged against a hot steel plate while hooded and interrogated; being forced to do leg lifts with bags of ice placed on his ankles, and being kicked when he could not do more.
• Investigation of allegations of torture and abuse that took place in 2003 at Abu Ghraib.
• Investigation that established probable cause to believe that U.S. forces committed homicide in 2003 when they participated in the binding of detainee Abed Mowhoush in a sleeping bag during an interrogation, causing him to die of asphyxiation.

These documents make it clear more of what we already know and what I have written about in great detail, that former Secretary of Defense Donald Rumsfeld, was personally involved in the policies that were implemented regarding treatment of detainees:

Additionally, a Dec. 20, 2005, Army Inspector General Report relating to the capture and interrogation of suspected terrorist Mohammad al-Qahtani included a sworn statement by Lt. Gen. Randall M. Schmidt. It said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Maj. Gen. Geoffrey Miller, the commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003.

[...]

“Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey
Miller. These methods included, but were not limited to, 48 days of severe sleep
deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”

This is not groundbreaking news for anyone who has been following this issue, but rather more evidence that very real crimes were more-than likely committed during Bush's reign in the White House. Couple the results of these reports with an item that came out of Newsweek recently. According to Michael Isikoff, an Internal Justice Department report has preliminary findings concluding that Bush Administration lawyers (including John Yoo) did not act in good faith in issuing legal opinions on issues of torture. The implications of this, that these legal opinions were so outrageous that the actions of these lawyers cannot be viewed in good faith, continue to undercut claims by the Bush Administration and their supporters. Namely, that they believed their actions to be legal. To the contrary, evidence continues to mount that the legal opinions were crafted around policies (which required legal backing) that the former Administration wanted to implement.

Despite all of this, President Obama continues to respond to questions about criminal charges against the Bush Administration by stating that he wishes to "look forward" instead of backward. While Attorney General Holder and President Obama say that "no one is above the law", their language of "moving forward" indicates that serious investigations into lawbreaking are not a top priority. Chris Floyd suggests (though obviously tongue and cheek) that since the current Administration has no interest in pursuing any type of serious investigation into some of the worst crimes that we have seen in recent years, that we have a bipartisan compromise. We take one high level official (Floyd suggests Rumsfeld) and have him take the fall for everything. This way, as Floyd puts it, "The Republicans can claim they got rid of their 'bad apple,' and the Democrats can claim they have 'restored American honor."' After all, isn't this what bipartisan has come to mean these days during this so-called "new age" of government?

Despite calls for investigations and the growing interest of the public to look into criminal wrongdoing, the White House continues to downplay any meaningful action under the guise of putting the past behind us. Part of the "past" that the current Administration is attempting to bury is the complicity of the Democrats in implementing torture policies. It is not just the absence of action that should warrant criticism, but the proactive approach by the Obama Administration to defend and continue some of the worst policies of the Bush Administration; most recently the "state secrets" provision.

Claiming that "no one is above the law" while simultaneously turning a blind eye to crimes committed by the past Administration is inherently contradictory and will not deter future elected officials from committing blatant violations of the law. Actual accountability is not shielding members of your own party from potential investigation nor is it continuing policies like the "state secrets" provision after naming it one of the fundamental problems of the last eight years. The pressure on the Administration for real accountability needs to continue as more evidence continues to see the light of day.