ESTABLISHING A NEW NORMAL National Security, Civil Liberties, and Human Rights Under the Obama Administration AN 18-MONTH REVIEW JULY 2010 AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 www.aclu.org INTRODUCTION On January 22, 2009—his second full day in office progress in some areas. Perhaps most notably, —President Obama signed a series of executive the administration’s release of Justice Depart- orders that squarely repudiated some of the most ment memoranda that purported to authorize egregious abuses of the Bush administration. the Bush administration’s torture regime, as The new orders categorically prohibited torture well as a CIA report describing how even those and limited all interrogations, including those lax limits were exceeded, evinced a commitment conducted by the CIA, to techniques authorized to transparency of truly historic significance, by the Army Field Manual. They outlawed the and the administration deserves high praise for CIA’s practice of secret detention and shut down making those critical documents available for the CIA’s overseas prisons. And they mandated public scrutiny. Regrettably, in a pattern that has the closure of the Guantánamo prison within one repeated itself throughout the administration’s year. These auspicious first steps towards fulfill- ing candidate Obama’s promise of change were There is a real danger…that more than symbolic gestures: they carried the force of law, they placed the power and prestige the Obama administration will of the presidency behind restoration of the rule of preside over the creation of a law, and they gave weight to the President’s oft- stated view that adherence to our nation’s funda- “new normal.” mental principles makes us safer, not less safe. first eighteen months, a significant achievement But in the eighteen months since the issuance was followed by a step back: the administration of those executive orders, the administration’s reversed its decision to comply with a court deci- record on issues related to civil liberties and sion ordering the release of photos depicting the national security has been, at best, mixed. Indeed, abuse of prisoners in Iraq and Afghanistan, and on a range of issues including accountability for it supported legislation granting the Secretary of torture, detention of terrorism suspects, and use Defense unprecedented authority to conceal evi- of lethal force against civilians, there is a very dence of misconduct. real danger that the Obama administration will enshrine permanently within the law policies and Similarly, the administration’s admirable com- practices that were widely considered extreme mitment to dismantle the Guantánamo prison and unlawful during the Bush administration. has been undermined by its unwillingness to There is a real danger, in other words, that the dismantle the legal architecture of the Bush- Obama administration will preside over the cre- era detention regime: the Obama administration ation of a “new normal.” has continued to assert the authority to detain militarily, without charge or trial, Guantánamo This report examines the Obama administra- detainees (and others) captured far from any con- tion’s record to date on a range of national secu- ventional battlefield, and there is a genuine dan- rity policies that implicate human rights and ger that the administration will close the prison civil liberties. It concludes that the administra- but enshrine the principle of widespread military tion has taken positive steps and made genuine detention without trial. Equally disappointing, the Establishing A New Normal | 2 administration’s unequivocal prohibition against The ACLU will continue to monitor the impact of torture has been fundamentally weakened by its the administration’s national security policies on continuation of the Bush administration’s efforts fundamental civil liberties and human rights. We to stymie meaningful accountability: the admin- hope that this report, published less than half- istration has adopted the same sweeping theory way through the President’s first term, will serve of “state secrets” to prevent torture victims from as a vehicle for reflection and further dialogue; seeking justice and compensation in U.S. courts, we hope that the administration will renew its and the President himself has publicly opposed commitment to the principle that the nation’s criminal investigations of the architects of the fundamental values are the very foundation of its torture regime. strength and security. Establishing A New Normal | 3 TRANSPARENCY Many of the Bush administration’s most contro- President Obama signaled a break from this past versial national security policies—the warrant- in his first days in office. In a Memorandum on less wiretapping program, the torture program, Transparency and Open Government, the Presi- the rendition program—were conceived, devel- dent acknowledged that transparency would oped, and authorized in secret. The American “strengthen our democracy,” and he pledged public found out about these policies long after that his administration would commit itself to they were put into place, and after a great deal of “creating an unprecedented level of openness in damage had already been done. Too often, Amer- Government.”1 In a Memorandum on the Free- icans had to rely on leaks to the news media, dom of Information Act, the President declared or litigation by public interest organizations, in that “[a] democracy requires accountability, order to find out about consequential national and accountability requires transparency,” and security policies that had been adopted in their he ordered all federal agencies to institute a name. Too often, national security policies that “presumption in favor of disclosure,” thereby should have been subject to public debate were reversing the so-called “Ashcroft rule” that had implemented secretly. And too often, this secrecy governed during the Bush administration. The shielded government officials from accountabil- President cautioned federal agencies that “[t]he ity for decisions that violated the public’s trust Government should not keep information confi- and the law. dential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of specu- lative or abstract fears.”2 Over the next weeks, the Obama administration made modest—though nonetheless important —improvements to the rules governing classi- fication.3 It funded a FOIA ombudsman.4 And it required agencies to release some information proactively and in formats useable by the general public.5 Most significantly, the Obama administration agreed to release the Justice Department mem- os that had been the basis of the Bush adminis- tration’s torture program—memos that the ACLU and other public interest organizations had long been seeking under the Freedom of Information Act. The decision to release the memos was of historic importance. The memos allowed Ameri- cans to evaluate for themselves the legal argu- Formerly secret government records released under the ments that were the foundation of the torture Freedom of Information Act Establishing A New Normal | 4 program, and to decide for themselves whether the legislation invested the Secretary of Defense the architects of the program had acted lawfully with sweeping authority to withhold any visual and in good faith. And in the weeks and months images depicting the government’s “treatment after the release of the memos, the Obama of individuals engaged, captured, or detained” administration released official reports that shed by U.S. forces—no matter how egregious the further light on these questions. In August 2009, conduct depicted or how compelling the public’s it released a report by the CIA’s Inspector Gen- interest in disclosure.8 As the ACLU noted at the eral assessing the CIA’s interrogation and deten- time, the legislation essentially gave the greatest tion program.6 In February 2010, it released a protection from disclosure to records depicting report by the Justice Department’s Office of Pro- the worst forms of government misconduct. fessional Responsibility assessing the conduct of the lawyers who wrote the torture memos.7 Since its change of heart on the abuse photo- graphs, the administration has fought to keep The administration’s commitment to transpar- secret hundreds of records relating to the Bush ency, however, has been inconsistent, and it administration’s rendition, detention, and inter- has waned over time. Although the administra- rogation policies. To take just a few of many tion initially stated that it would comply with an possible examples, it has fought to keep secret appellate court decision requiring it to release a directive in which President Bush authorized abuse photographs from detention facilities in the CIA to establish secret prisons overseas; the Afghanistan and Iraq, it later reversed course Combatant Status Review Transcripts in which and declared that it would seek Supreme Court former CIA prisoners describe the abuse they review, and it supported an invidious amendment suffered in the CIA’s secret prisons; records to the FOIA intended to retroactively exempt the relating to the CIA’s destruction of videotapes that photos from release under the statute. In addition depicted some prisoners being waterboarded; to thwarting the decision of the appellate court, and cables containing communications between “A democracy requires accountability, and accountability requires transparency.