Dean and Distinguished Professor of Law, University of California, Irvine, School of Law
Few presidents in history have come into office facing the daunting challenges confronting Barack Obama. The nation’s economy is in a deep crisis, almost certainly the worst economic situation since the depression of the late 1920s and early 1930s. Our military is stretched thin in two wars in Afghanistan and Iraq. The budget deficit is enormous and growing. The threat of terrorism always looms.
Any new president faces the almost overwhelming challenge of filling thousands of top policy positions and creating a working government in a very short period of time. But the need for rapid transition is heightened when the country, as now, is facing such immediate and dire problems.
President Obama will need to deal with many different issues simultaneously. None is more important, though, than restoring American credibility and moral leadership throughout the world. It is not hyperbole to say that the Bush administration has the worst record on human rights of any presidency in American history. Since the time of George Washington and the Revolutionary War, this nation has prided itself on humane treatment of all prisoners captured during war time. This country was integral to creating the Geneva Accords and treaties prohibiting torture and generally has been scrupulous in complying with them.
But the Bush administration implemented a wide array of policies that are blatantly at odds with international law and the American Constitution. Never before, with the exception of during the Civil War, has any President claimed the ability to detain American citizens without due process. Never before, at least so far as known, has the United States created rendition camps for the purpose of torture. Never before has any presidential administration proclaimed the ability to disregard treaties and statutes prohibiting torture. Never before has the United States government systematically engaged in torture, including of innocent individuals.
In her brilliant book, The Dark Side, Jane Mayer describes how the United States government systematically created rendition camps for the purpose of torture and engaged in actions that, by any definition, count as torture. She tells of Khaled El-Masri, who was mistakenly apprehended, held and tortured, and then dumped on the streets of Albania. She describes in detail what was done to Mandouh Habib, who was hung from the ceiling by his arms as he stood on a cylindrical drum that was attached to an electrical charge. When his interrogators didn’t like his answers, they could flip a switch, shocking
his feet to make him “dance,” which would cause him to slip so that his full weight would pull on his arms. He was detained and then released. She tells how Manadel al-Jamadi died as a result of the extreme interrogation techniques used against him.
No longer does the United States have the moral authority as a leader on matters of human rights. Those in the military or who have loved ones in the military are especially concerned: How can the United States expect foreign countries to obey international law when they have American prisoners when the United States does not do so with regard to foreign prisoners?
One of President Obama’s first actions must be to change course and to repudiate the Bush administration’s policies, which violate international law and the United States Constitution. First and most obviously, the Obama administration must renounce torture and reassure the country and the world that it will comply with treaties and statutes prohibiting torture. The torture of the Bush administration has not been that of Jack Bauer on the television program 24, where torture is used to find the ticking nuclear bomb minutes before it is about to explode. The Bush administration has approved the systematic use of torture to gather information, often from individuals who are held on no more than vague suspicions. There is no evidence that such interrogation techniques work because individuals will say anything to end extreme pain.
Second, the Obama administration must close the military prison at Guantanamo Bay, Cuba. Guantanamo has become an embarrassing symbol for the United States throughout the world of American lawlessness and disregard for international human rights. The individuals held in Guantanamo should be released or moved to federal prisons, including military prisons. Meaningful trials should be promptly provided to each person. If there is a basis for continued detention, it should be in facilities in the United States that meet the standards of international human rights. If there is no basis for detention, individuals should be released.
I have been representing a Guantanamo detainee, Salim Gherebi, since July 2002. He is a man in his late forties and is the father of three children. He was apprehended in Afghanistan. I have been to Guantanamo to meet with him. I have no idea why he is there. He may be a very dangerous man who needs to be locked up or he may be there by mistake. We now know that many were brought to Guantanamo in error. The United States paid warlords in Afghanistan to name those with ties to Al Queda and often they named rivals to get them out of the way and collect a bounty. Without due process and a meaningful hearing, there is no way to know if a person is being justly imprisoned.
Third, the Obama administration must declare that it supports war crimes investigations and prosecutions for those in the Bush administration who committed war crimes. Jane Mayer and others have shown that the policies developed and implemented by men such as Dick Cheney, David Addington, and John Yoo are war crimes. They have violated the most basic norms of human rights in approving the creation of rendition camps for the purpose of torture and in approving policies that led to torture and even death of prisoners.
It will be tempting for the new administration to move on and to see support for a war crimes prosecution as unnecessarily divisive. But our nation’s consistent support for war crimes prosecutions throughout the world requires the Obama administration to support them against those in American government who have committed war crimes. Otherwise, this country never will be credible in supporting war crimes trials for others.
I have no doubt that those in the Bush administration who devised and implemented the policies violating human rights did so with the best intentions and the desire to protect the country. But we must never forget the caution of the late Justice Louis Brandeis. He warned that the greatest threat to liberty will come from people acting for beneficial purposes. He said that people born to freedom know to resist the tyranny of
despots. He said that the insidious threat to freedom will come from well meaning people of zeal with little understanding of what the Constitution is about. Justice Brandeis did not know Dick Cheney or David Addington or Alberto Gonzales, but he could not have picked better words if he did. The Obama presidency must make one of its top priorities setting a new course with regard to human rights.
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