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Joanne Mariner

Obama's Counterterrorism Reforms: What Remains to be Done


Wednesday, May 6, 2009

In his first 100 days in office, President Barack Obama took crucial steps to reform U.S. counterterrorism policies, repudiating several key elements of the Bush administration's abusive approach to fighting terrorism.

Crucially, Obama issued three executive orders on his second full day in office that ordered the closure of the CIA's secret prisons, required the CIA to abide by the same interrogation standards as the military, and revoked past presidential directives and other regulations that had authorized the abusive treatment of prisoners. He also suspended the unfair military commission trials that were being held at Guantanamo, and put an end to the detention without trial of Ali Saleh Kahlah al-Marri, a U.S. resident who had been held as an "enemy combatant" since 2003.

But much remains to be done if the new administration is to turn the page on the Bush administration's "war on terror." Not only will President Obama need to find a solution for the approximately 140 men still in long-term detention without trial at Guantanamo, he will need to resolve the question of how to prosecute those detainees implicated in terrorist crimes.

It is still not clear if Obama, facing some difficult choices, will institute the reforms that are needed to bring U.S. counterterrorism policies back into line with basic human rights standards. Indeed, the new administration has already made a few serious missteps, including embracing the war paradigm as a justification for detaining people indefinitely without trial.

Below I discuss three key areas to watch over the coming year.

Closing Guantanamo

One of Obama's initial executive orders required that the military detention facility at Guantanamo be closed by January 2010. In contrast to President Bush's vague indications that he would "like" to close the facility, the order represented a tangible and promising step forward. Besides setting a date for Guantanamo's closure, the order called for a review of the status of the approximately 240 men still held at Guantanamo to determine if they should be transferred, released, prosecuted, or dealt with some other way.

Since issuing the order, however, the administration has done little to shrink the prisoner population at Guantanamo. Only a single detainee, Binyam Mohamed, has been released since Obama took office. Notably, some 15 Yemeni detainees who have been cleared for release or transfer have yet to be returned to their home country. Detainees' lawyers claim that conditions at the military detention facility have not improved, and that a purported Pentagon review of detention conditions was a sham.

A key Obama administration misstep on Guantanamo involves the 17 Uighur prisoners held there. Originally from China, the men have been cleared for release but cannot be returned to their home country because of the likelihood of torture. To date, the Obama administration has failed to release any of them into the United States, even though a large local Uighur community has pledged to assist in their reintegration into society, and even though the willingness of European countries to resettle detainees from Guantanamo is in large part contingent on the United States doing so first.

Because an estimated 50 to 60 detainees cannot be returned to their home countries for fear of abuse, it is crucial that the Obama administration jumpstart the resettlement process by releasing some detainees into the United States soon. More generally, how the administration handles the remaining detainees will be a key test of its reform agenda.

Prosecuting Detainees Implicated in Crimes

On the day he took office, President Obama directed military prosecutors to seek a 120-day suspension of military commission proceedings, the deeply flawed prosecutions that have been ongoing at Guantanamo. The president's subsequent executive order on Guantanamo stated that military commission proceedings would be halted during the detainees' status review process. That order also specifically mandated an assessment of whether it was feasible to prosecute Guantanamo detainees before US federal courts.

As of yet, the Obama administration has not indicated how or where it will try detainees who are implicated in crimes. The fairest approach by far would be to transfer all military commission prosecutions to the federal courts, which have a strong track record of trying terrorism cases and have proven capable of handling even the most sensitive and complicated such prosecutions.

Accounting for Past Abuses

The American people deserve a full and public accounting of the scale of post-9/11 abuses, why and how they occurred, and who was responsible for authorizing and facilitating them. Moreover, officials responsible for the enforced disappearance and torture of post-9/11 detainees should be brought to justice. Both are essential steps for repudiating these serious abuses and ensuring that they do not recur.

To date, the Obama administration has showed little enthusiasm for establishing a commission of inquiry or for initiating criminal investigations of officials implicated in serious crimes against detainees. With the release of four Bush-era torture memos in April, President Obama initially signaled a willingness to set up a nonpartisan commission to investigate 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, although he has left open the possibility of prosecuting those higher up the chain of command who gave orders to the CIA permitting detainees to be tortured.

Given the scale and severity of post-9/11 counterterrorism abuses, the new administration should work with Congress to set up a commission of inquiry to investigate, document, and publicly report on them. The Justice Department should also open a formal criminal investigation into the senior officials responsible for making torture and other abuses a part of official U.S. policy.

Joanne Mariner is a human rights attorney based in New York. Her previous FindLaw columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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