Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

Establishing a New Normal Human Rights under the Obama Administration, ACLU, 2010

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
ESTABLISHING A NEW NORMAL

-;;t- -=-

. '.

"Ii'·.

'

o\!.i

National Security, Civil Liberties, and Human Rights
Under the Obama Administration
AN 18-MONTH REVIEW
JULY 2010

AMERICAN CIVIL LIBERTIES UNION

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
—President Obama signed a series of executive
orders that squarely repudiated some of the most
egregious abuses of the Bush administration.
The new orders categorically prohibited torture
and limited all interrogations, including those
conducted by the CIA, to techniques authorized
by the Army Field Manual. They outlawed the
CIA’s practice of secret detention and shut down
the CIA’s overseas prisons. And they mandated
the closure of the Guantánamo prison within one
year. These auspicious first steps towards fulfilling candidate Obama’s promise of change were
more than symbolic gestures: they carried the
force of law, they placed the power and prestige
of the presidency behind restoration of the rule of
law, and they gave weight to the President’s oftstated view that adherence to our nation’s fundamental principles makes us safer, not less safe. 
But in the eighteen months since the issuance
of those executive orders, the administration’s
record on issues related to civil liberties and
national security has been, at best, mixed. Indeed,
on a range of issues including accountability for
torture, detention of terrorism suspects, and use
of lethal force against civilians, there is a very
real danger that the Obama administration will
enshrine permanently within the law policies and
practices that were widely considered extreme
and unlawful during the Bush administration.
There is a real danger, in other words, that the
Obama administration will preside over the creation of a “new normal.”
This report examines the Obama administration’s record to date on a range of national security policies that implicate human rights and
civil liberties. It concludes that the administration has taken positive steps and made genuine

progress in some areas. Perhaps most notably,
the administration’s release of Justice Department memoranda that purported to authorize
the Bush administration’s torture regime, as
well as a CIA report describing how even those
lax limits were exceeded, evinced a commitment
to transparency of truly historic significance,
and the administration deserves high praise for
making those critical documents available for
public scrutiny. Regrettably, in a pattern that has
repeated itself throughout the administration’s

There is a real danger…that
the Obama administration will
preside over the creation of a
“new normal.”
first eighteen months, a significant achievement
was followed by a step back: the administration
reversed its decision to comply with a court decision ordering the release of photos depicting the
abuse of prisoners in Iraq and Afghanistan, and
it supported legislation granting the Secretary of
Defense unprecedented authority to conceal evidence of misconduct.
Similarly, the administration’s admirable commitment to dismantle the Guantánamo prison
has been undermined by its unwillingness to
dismantle the legal architecture of the Bushera detention regime: the Obama administration
has continued to assert the authority to detain
militarily, without charge or trial, Guantánamo
detainees (and others) captured far from any conventional battlefield, and there is a genuine danger that the administration will close the prison
but enshrine the principle of widespread military
detention without trial. Equally disappointing, the

Establishing A New Normal | 2

administration’s unequivocal prohibition against
torture has been fundamentally weakened by its
continuation of the Bush administration’s efforts
to stymie meaningful accountability: the administration has adopted the same sweeping theory
of “state secrets” to prevent torture victims from
seeking justice and compensation in U.S. courts,
and the President himself has publicly opposed
criminal investigations of the architects of the
torture regime.

The ACLU will continue to monitor the impact of
the administration’s national security policies on
fundamental civil liberties and human rights. We
hope that this report, published less than halfway through the President’s first term, will serve
as a vehicle for reflection and further dialogue;
we hope that the administration will renew its
commitment to the principle that the nation’s
fundamental values are the very foundation of its
strength and security. 

Establishing A New Normal | 3

TRANSPARENCY
Many of the Bush administration’s most controversial national security policies—the warrantless wiretapping program, the torture program,
the rendition program—were conceived, developed, and authorized in secret. The American
public found out about these policies long after
they were put into place, and after a great deal of
damage had already been done. Too often, Americans had to rely on leaks to the news media,
or litigation by public interest organizations, in
order to find out about consequential national
security policies that had been adopted in their
name. Too often, national security policies that
should have been subject to public debate were
implemented secretly. And too often, this secrecy
shielded government officials from accountability for decisions that violated the public’s trust
and the law.

QQQQQ

--..;;~~
..If'Of see.!ii-

Formerly secret government records released under the
Freedom of Information Act

President Obama signaled a break from this past
in his first days in office. In a Memorandum on
Transparency and Open Government, the President acknowledged that transparency would
“strengthen our democracy,” and he pledged
that his administration would commit itself to
“creating an unprecedented level of openness in
Government.”1 In a Memorandum on the Freedom of Information Act, the President declared
that “[a] democracy requires accountability,
and accountability requires transparency,” and
he ordered all federal agencies to institute a
“presumption in favor of disclosure,” thereby
reversing the so-called “Ashcroft rule” that had
governed during the Bush administration. The
President cautioned federal agencies that “[t]he
Government should not keep information confidential merely because public officials might be
embarrassed by disclosure, because errors and
failures might be revealed, or because of speculative or abstract fears.”2
Over the next weeks, the Obama administration
made modest—though nonetheless important
—improvements to the rules governing classification.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 memos that had been the basis of the Bush administration’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 Americans to evaluate for themselves the legal arguments that were the foundation of the torture

Establishing A New Normal | 4

program, and to decide for themselves whether
the architects of the program had acted lawfully
and in good faith. And in the weeks and months
after the release of the memos, the Obama
administration released official reports that shed
further light on these questions. In August 2009,
it released a report by the CIA’s Inspector General assessing the CIA’s interrogation and detention program.6 In February 2010, it released a
report by the Justice Department’s Office of Professional Responsibility assessing the conduct of
the lawyers who wrote the torture memos.7
The administration’s commitment to transparency, however, has been inconsistent, and it
has waned over time. Although the administration initially stated that it would comply with an
appellate court decision requiring it to release
abuse photographs from detention facilities in
Afghanistan and Iraq, it later reversed course
and declared that it would seek Supreme Court
review, and it supported an invidious amendment
to the FOIA intended to retroactively exempt the
photos from release under the statute. In addition
to thwarting the decision of the appellate court,

the legislation invested the Secretary of Defense
with sweeping authority to withhold any visual
images depicting the government’s “treatment
of individuals engaged, captured, or detained”
by U.S. forces—no matter how egregious the
conduct depicted or how compelling the public’s
interest in disclosure.8 As the ACLU noted at the
time, the legislation essentially gave the greatest
protection from disclosure to records depicting
the worst forms of government misconduct.
Since its change of heart on the abuse photographs, the administration has fought to keep
secret hundreds of records relating to the Bush
administration’s rendition, detention, and interrogation policies. To take just a few of many
possible examples, it has fought to keep secret
a directive in which President Bush authorized
the CIA to establish secret prisons overseas; the
Combatant Status Review Transcripts in which
former CIA prisoners describe the abuse they
suffered in the CIA’s secret prisons; records
relating to the CIA’s destruction of videotapes that
depicted some prisoners being waterboarded;
and cables containing communications between

“A democracy requires
accountability, and accountability
requires transparency. “
­

—PRESIDENT BARACK OBAMA
in a 2009 memorandum to executive
departments and agencies

Water Board

Establishing A New Normal | 5

the CIA’s secret prisons and officials at CIA headquarters. It has argued that the CIA’s authority
to withhold information concerning “intelligence
sources and methods” extends even to methods that are illegal. The administration has
also fought to withhold information about prisoners held at Bagram Air Base in Afghanistan.
Indeed, the Obama administration has released
less information about prisoners held at Bagram
Air Base than the Bush administration released
about prisoners held at Guantánamo.
One topic that the Obama administration has
shrouded in secrecy warrants particular attention. Over the last few months, many media
organizations have reported about the administration’s “targeted killing” program—a program
under which the administration asserts the
authority to kill suspected terrorists anywhere in
the world. At least one of the program’s targets is
a United States citizen. Even the program’s proponents concede that the program raises serious
questions of law and public policy. (We discuss
the program at more length below.) Yet the information available to the public about the program is extremely limited. Stonewalling a FOIA
request filed by the ACLU, the CIA has refused
even to confirm or deny whether it has records
about the program. There is no legitimate basis
for the administration’s refusal to disclose the
legal basis for the program and basic information about the program’s scope.

a leak to the media that the public learned of the
NSA’s warrantless wiretapping program.) It has
charged Bradley Manning, a 22-year-old Army
intelligence analyst, for allegedly leaking a video
showing the killing of two Reuters news staff and
several other civilians by U.S. helicopter gunships in Iraq. (Reuters had spent nearly three
years trying to obtain the video through FOIA;
now that the video is in the public domain, it is
clear that there was no basis for withholding it.)9
In its first months, the Obama administration
pledged a new era of transparency, and it took
substantial and historic steps to make good on
that pledge. Over the next eighteen months, we
urge the administration to recommit itself to the
ideals that the President himself invoked in his
first days in office. Our democracy cannot survive if crucial public policy decisions are made
behind closed doors, implemented in secret, and
never subjected to meaningful public oversight
and debate. It cannot survive if the public does
not know what policies have been adopted in its
name.

Also of grave concern to us is the administration’s aggressive pursuit of government whistleblowers. During his campaign, candidate Obama
said that he knew “a little bit about whistleblowing, and making sure those folks get protection.”
Rather than protect whistleblowers, however,
the administration has been prosecuting them.
It has charged Thomas Drake, a former official of
the National Security Agency, for allegedly leaking information about waste and incompetence
at that agency. (Notably, it was only because of

Establishing A New Normal | 6

TORTURE AND ACCOUNTABILITY
The Justice Department memos that the Obama
administration released in April 2009 related to
a torture program that was conceived and developed at the highest levels of the Bush administration. Justice Department lawyers wrote legal
opinions meant to justify torture; senior civilian
and military officials authorized torture; and CIA
and military interrogators used torture—at Guantánamo, in the CIA’s black sites, and elsewhere.
Government documents show that hundreds of
prisoners were tortured in U.S.-run detention
facilities, and that more than one hundred were
killed, many in the course of interrogations.
In his first days in office, President Obama unambiguously rejected this legacy. In an executive
order, President Obama categorically disavowed
torture and directed that all prisoners in U.S.
custody be afforded the protection of Common
Article 3 of the Geneva Conventions (in compliance with the Supreme Court’s 2006 ruling in
Hamdan v. Rumsfeld); that all interrogations of
prisoners in U.S. custody conform to the Army
Field Manual; that the CIA close its secret pris-

ons; and that the International Committee of the
Red Cross be promptly notified of any person
detained by the United States.10 When the administration released the Bush administration’s
torture memos in April 2009, the Justice Department withdrew all of the legal memos that had
undergirded the Bush administration’s torture
program,11 and in a public statement President
Obama declared:
I prohibited the use of these interrogation
techniques by the United States because
they undermine our moral authority and
do not make us safer. Enlisting our values
in the protection of our people makes us
stronger and more secure. A democracy
as resilient as ours must reject the false
choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.12
The decision to dismantle the Bush administration’s torture program was a crucial one, not just
for the United States but for the world. President

Paintings by American artist Jenny Holzer of U.S. government documents released through ACLU litigation

Establishing A New Normal | 7

Obama deserves credit for the decision, and for
his vigorous defense of it.

MAjORCASEfR1N!S···

~

.....

u ..... - .. v ..

·1

E:OII~n

C. 1..

TAKEN BY:
DATE: 22No¥03

PALM. n'OCt:RS .. nSGERnps (LUT KA1'iD)

But while the administration has disavowed torture, it has made little effort to hold accountable
those who authorized it. In recent years, many
other countries—including some of America’s
closest allies, like the United Kingdom, Germany, Spain, and Canada—have begun to examine
their responsibility for the abuse and torture
of prisoners in U.S. custody. The United States
is increasingly isolated in its unwillingness to
investigate the roots of the torture program, its
refusal to compensate torture survivors, and its
failure to hold accountable the senior government officials who authorized interrogators to
use torture.
The truth is that the Obama administration has
gradually become an obstacle to accountability
for torture. It is not simply that, as discussed
above, the administration has fought to keep
secret some of the documents that would allow
the public to better understand how the torture
program was conceived, developed, and implemented. It has also sought to extinguish lawsuits
brought by torture survivors—denying them recognition as victims, compensation for their injuries, and even the opportunity to present their
cases.
Mohamed v. Jeppesen Dataplan, Inc., for example,
is a suit brought by five survivors of the CIA’s
rendition program. In the district court, the Bush
adminstration argued that the case could not be
litigated without the disclosure of state secrets,
and that it should therefore be dismissed at the
outset. The district court agreed. To the surprise
of many, the Obama administration defended that district court decision in the Court of
Appeals for the Ninth Circuit, arguing that the
district court was correct to deny the plaintiffs
any opportunity to present their case in court.
Even after a three-judge panel of the Ninth Cir-

.,

cuit court sided with the ACLU and vacated the
lower court decision, the Obama administration
persisted in its argument that the case should
not be litigated at all. It asked the full Ninth Circuit to reconsider the decision of the three-judge
panel, and the court did so. A ruling is expected
in the next few months.
The state secrets doctrine is not the only mechanism the Obama administration has invoked
to extinguish civil suits by torture survivors. In
Rasul v. Rumsfeld, a suit brought by former Guantánamo detainees seeking redress for torture,
abuse, and religious discrimination, the Obama
administration argued, remarkably, that the
government defendants were immune from suit
because, at the time that the abuse occurred,
established law did not clearly prohibit torture
and religious discrimination at Guantánamo. In
Arar v. Ashcroft, the administration argued that
the Constitution provided no cause of action to
an innocent man who had been identified by the
United States as a terrorist, rendered to Syria for
torture, and not released until ten months later

Establishing A New Normal | 8

The Obama administration
has gradually become an
obstacle to accountability
for torture.
when it was determined that he was not a terrorist after all. In that case, the administration
also argued to the courts that affording Arar a
judicial remedy “would offend the separation of
powers and inhibit this country’s foreign policy,”
and impermissibly involve the courts in assessing “the motives and sincerity” of the officials
who authorized Arar’s rendition.13
The administration has sometimes suggested
that civil suits are unnecessary because the Justice Department has the authority to investigate
allegations that government agents violated the
law.14 But civil suits, of course, serve purposes
that criminal investigations do not: they allow
victims their day in court, and they provide an
avenue through which victims can seek compensation from perpetrators.
In any event, there is little evidence that the
administration is committed to a comprehensive
criminal investigation into the Bush administration’s torture program. In August 2009, Attorney General Eric Holder announced that he had
ordered an investigation into incidents involving
CIA interrogations. The Attorney General char-

acterized the investigation, however, as a “preliminary review” meant “to gather information to
determine whether there is sufficient predication
to warrant a full investigation of a matter.” He also
made clear that the investigation was focused not
on the architects of the torture program but on
incidents in which interrogators exceeded their
authority. It is conceivable that what began as a
narrowly circumscribed preliminary review will
grow into a broader investigation, but we have no
reason to have confidence that the investigation
will expand in this way. The Special Prosecutor’s
torture investigation has already dragged on for
nearly a year, and a related investigation into the
CIA’s destruction of videotapes depicting brutal interrogations has been ongoing for almost
three. And President Obama has made clear that
his own preference is to “look forward, not back.”
In fact the choice between “looking forward” and
“looking back” is a false one. While it’s crucial
that the Obama administration adopt new policies for the future, we cannot ignore the abuses
of the past. And while President Obama has disavowed torture, a strong democracy rests not on
the goodwill of its leaders but on the impartial
enforcement of the laws. Sanctioning impunity
for government officials who authorized torture sends a problematic message to the world,
invites abuses by future administrations, and
further undermines the rule of law that is the
basis of any democracy.

Establishing A New Normal | 9

DETENTION
While campaigning for the presidency, then-Senator Obama declared that in “the detention cells
of Guantánamo, we have compromised our most
precious values.”15 He rejected unequivocally the
practices “of detaining thousands without charge
or trial” and “of maintaining a network of secret
prisons to jail people beyond the reach of law.”16
His bottom-line was clear: “As President, I will
close Guantánamo.”17 On his second full day in
office, President Obama ordered the CIA to close
its secret prisons, set a one-year deadline for
closing the Guantánamo prison, and established
an interagency task force to review the cases of
everyone detained at Guantánamo.18 Soon thereafter, the administration abandoned the Bush
administration’s dubious legal argument that

Guantánamo should be closed,
but not at the cost of enshrining
the principle of indefinite
detention in a global war
without end.

Former Guantánamo detainees

lawful U.S. resident (and ACLU client) Ali AlMarri, who had been arrested by civilian authorities in Illinois, could be detained indefinitely by
the military without charge or trial. Al-Marri was
transferred to civilian custody where he pled
guilty to specified offenses and was sentenced to
a term of eight years.
It was a promising beginning, but eighteen
months later Guantánamo is still open and some
180 prisoners remain there. The administration
is not solely responsible for missing this oneyear deadline; Congress has obstructed any possible relocation of even indisputably innocent
detainees like the Chinese Uighurs to the United
States, thereby rendering diplomatic efforts to
relocate detainees in Europe and elsewhere far
more difficult. And the administration deserves
credit for releasing some 67 detainees from
Guantánamo. But the Obama administration’s
unjust decision to halt all detainee releases to
Yemen—even when the detainees have been
cleared for release after years of harsh detention
—has been a major factor in the prison’s remaining open; a majority of the remaining detainees
are Yemeni. Moreover, the administration bears
responsibility for opposing in court the release
of detainees against whom the government has
scant evidence of wrongdoing.
In one recent case, the Obama administration
vigorously opposed the release of Hassan alOdaini—who was 17 years old when arrested and
spent eight years imprisoned without charge.
The federal court’s decision, which emphatically ordered Mr. Odaini’s release, revealed that
the government itself had repeatedly concluded
that he was not a threat, but had instead simply
been in the wrong place at the wrong time when
Pakistani officials arrested him during a surprise

Establishing A New Normal | 10

raid of a classmate’s home.19 While the Obama
administration complied with the court’s order
and released Mr. Odaini, the case wholly refutes
the claim that the administration would indefinitely detain only those “who pose a clear danger
to the American people.”20 It also suggests that
the Guantánamo review task force, which completed its work months ago, has not resulted in
the release of all innocent prisoners still held at
Guantánamo Bay.

new detention regime.21 Although, to its credit,
the administration has now publicly stated that
it will not support any new legislation expanding
detention authority, it has continued to assert,
in habeas corpus proceedings involving Guantánamo and Bagram detainees, a dangerously
overbroad authority to detain civilian terrorism
suspects militarily. And its task force has identified 48 Guantánamo detainees who will be held
indefinitely without charge or trial.

Of far greater significance than the administration’s failure to meet its own one-year deadline is its embrace of the theory underlying the
Guantánamo detention regime: that the Executive Branch can detain militarily—without charge
or trial—terrorism suspects captured far from a
conventional battlefield. President Obama first
expressly endorsed this claim of authority in
May of 2009, in a major speech at the National
Archives. The President stated that Guantánamo detainees whom the administration deemed
dangerous, but who “could not be prosecuted”
because of a lack of reliable evidence, would be
held indefinitely without trial, and he proposed
that Congress provide legislative authority for a

Perhaps the most troubling iteration of this
sweeping theory of detention authority occurred
in legal proceedings in which the Obama administration defended the detention without judicial review of detainees in the Bagram prison in
Afghanistan. While the Obama administration
has improved the military screening procedures
in place at Bagram, those procedures still fall far
short of basic due process standards. In response
to habeas corpus petitions filed by prisoners who
had been captured outside of Afghanistan and
transferred by the Bush administration to military detention at Bagram Air Base, the government argued that the courts lacked jurisdiction
even to hear the prisoners’ challenges, let alone

(Left) Drawing by the mother of former Guantánamo detainee, Omar Deghayes. (Right) Drawing by a British artist and activist John
Catt presented to Omar Deghayes

Establishing A New Normal | 11

decide their merits, because the prisoners were
being detained in a war zone. This was disingenuous bootstrapping: the prisoners had been
captured outside the war zone and transferred
into it; the government thereafter relied on their
presence in the war zone as a basis for avoiding
any judicial scrutiny.
The Court of Appeals for the D.C. Circuit sided
with the administration, effectively giving the
government carte blanche to operate the prison
at Bagram without any judicial oversight. Armed
with this decision, Obama administration officials
have reportedly begun debating whether to use
the Bagram prison as a place to send individuals captured anywhere in the world for imprisonment and interrogation without charge or trial.22

to a prison in Thomson, Illinois, where they would
be detained by the military without charge or trial. The ACLU will continue to oppose this effort
to transfer the Guantánamo detention regime to
the heartland of America; we fear that if a precedent is established that terrorism suspects can
be held without trial within the United States, this
administration and future administrations will be
tempted to bypass routinely the constitutional
restraints of the criminal justice system in favor
of indefinite military detention. This is a danger
that far exceeds the disappointment of seeing
the Guantánamo prison stay open past the oneyear deadline. To be sure, Guantánamo should
be closed, but not at the cost of enshrining the
principle of indefinite detention in a global war
without end.

Finally, the Obama administration has advocated
for the transfer of some Guantánamo prisoners

Establishing A New Normal | 12

TARGETED KILLING
Of all of the national security policies introduced
by the Obama administration, none raises human
rights concerns as grave as those raised by the
so-called “targeted killing” program. According
to news reports, President Obama has authorized a program that contemplates the killing
of suspected terrorists—including U.S. citizens
—located far away from zones of actual armed
conflict. If accurately described, this program
violates international law and, at least insofar as
it affects U.S. citizens, it is also unconstitutional.

es that have been reviewed by the federal courts
thus far, even though the government had years
to gather and analyze evidence for those cases
and had itself determined that those prisoners
were detainable. This experience should lead the
administration—and all Americans—to reject out
of hand a program that would invest the CIA or
the U.S. military with the unchecked authority to
impose an extrajudicial death sentence on U.S.
citizens and others found far from any actual
battlefield.

The entire world is not a war zone. Outside of
armed conflict, lethal force may be used only as a
last resort, and only to prevent imminent attacks
that are likely to cause death or serious physical
injury. According to news reports, the program
the administration has authorized is based on
“kill lists” to which names are added, sometimes
for months at a time, after a secret internal process. Such a program of long-premeditated and
bureaucratized killing is plainly not limited to
targeting genuinely imminent threats. Any such
program is far more sweeping than the law allows
and raises grave constitutional and human rights
concerns. As applied to U.S. citizens, it is a grave
violation of the constitutional guarantee of due
process.
The program also risks the deaths of innocent
people. Over the last eight years, we have seen
the government over and over again detain men
as “terrorists,” only to discover later that the
evidence was weak, wrong, or non-existent. Of
the many hundreds of individuals previously
detained at Guantánamo, the vast majority have
been released or are awaiting release. Furthermore, the government has failed to prove the
lawfulness of imprisoning individual Guantánamo detainees in some three quarters of the cas-

Establishing A New Normal | 13

MILITARY COMMISSIONS
While campaigning for the presidency, thenSenator Obama made cogent arguments against
military commission trials at Guantánamo on
both principled and pragmatic grounds. He professed “faith in America’s courts” and pledged to
“reject the Military Commissions Act.”23 In 2007
he pointed out the practical inferiority of the military commissions, noting that there had been
“only one conviction at Guantánamo. It was for a
guilty plea on material support for terrorism. The
sentence was 9 months. There has not been one
conviction of a terrorist act.”24
The administration’s embrace of military commission trials at Guantánamo, albeit with
procedural improvements, has been a major disappointment. Instead of calling a permanent halt
to the failed effort to create an entirely new court
system for Guantánamo detainees, President
Obama encouraged an effort to redraft the legislation creating the commissions and signed that
bill into law. To be sure, the reformed Military
Commissions Act contains improvements, but

there is still a very real danger that defendants
might be convicted on the basis of hearsay evidence obtained coercively from other detainees
who will not be available for cross-examination.
More fundamentally, the existence of a secondclass system of justice with a poor track record
and no international legitimacy undermines the
entire enterprise of prosecuting terrorism suspects. So long as the federal government can
choose between two systems of justice, one of
which (the federal criminal courts) is fair and
legitimate, while the other (the military commissions) tips the scales in favor of the prosecution,
both systems will be tainted by the likelihood
that the government will use the federal courts
only in cases in which conviction seems virtually
assured, while reserving the military commissions for cases with weaker evidence or where
there are credible allegations that the defendants were abused in U.S. custody.

7fd:.
IMTF:

Handwritten statement by Guantánamo detainee Omar Khadr condemning his military commissions trial (Photo Credit: Carol
Rosenberg/The Miami Herald)

Establishing A New Normal | 14

“Part of my job as the next
president is to break the fever
of fear that has been exploited
by this administration.”
—SENATOR BARACK OBAMA
in a November 14, 2007 interview

The error in continuing with a flawed military
commission system is perhaps most starkly
illustrated by the first prosecution to go forward
at Guantánamo under President Obama’s watch.
The defendant, accused child soldier Omar
Khadr, is a Canadian citizen who was only 15
years old when he was captured after a firefight
in Afghanistan. Khadr is alleged to have thrown
a grenade that killed a U.S. soldier. If the allegations are true—and they have been cast into

serious doubt by subsequent revelations—then
Khadr was a child soldier brought to the battlefield by adults. In any event, Khadr has been subjected to cruel and humiliating interrogations
during his eight years at Guantánamo. These
interrogations began almost immediately after
his capture, while Khadr was in serious pain,
being treated for life-threatening wounds in a
military field hospital. The very first hearing at
the revamped military commissions concerned
whether Khadr’s statements to interrogators
could be used against him, despite this torture
and abuse. It was marred by the same chaotic
lack of regular process that characterized other
hearings in the military commissions. Proceeding with this prosecution or any other in so flawed
a system would be not only unjust but unnecessary: the federal criminal courts are both fairer
and more effective. It is long past time to end the
failed experiment of military commission trials at
Guantánamo.

Establishing A New Normal | 15

SPEECH AND SURVEILLANCE
With limited exceptions, the Obama administration’s positions on national security issues relating to speech and surveillance have mirrored
those taken by the Bush administration in its
second term.
Early in his campaign, candidate Obama declared
that he disagreed with President Bush’s decision to authorize the National Security Agency
to conduct warrantless surveillance of Americans’ international telephone and email communications.25 He later voted in favor of the FISA
Amendments Act, however, a statute that granted immunity to the telecommunications corporations that had facilitated the NSA’s program,
limited the role of the court that oversees government surveillance in national security cases,
and authorized the NSA to continue—and even
expand—its warrantless surveillance of Americans’ international communications. In effect,
candidate Obama made clear that his objection
was not to warrantless surveillance, but rather
to warrantless surveillance without congressional approval. And over the last eighteen months,
President Obama’s administration has defended the FISA Amendments Act in the same way
that the last administration did so: by insisting
that the statute is effectively immune from judicial review. Individuals can challenge the stat-

ute’s constitutionality, the administration has
proposed, only if they can prove that their own
communications were monitored under the statute; since the administration refuses to disclose
whose communications have been monitored,
the statute cannot be challenged at all. In some
ways, the administration’s defense of the statute
is as troubling as the statute itself.
The Obama administration has been reluctant to
yield any of the expansive surveillance powers
claimed by the last administration. It has pushed
for the reauthorization of some of the Patriot
Act’s most problematic surveillance provisions.
And like the Bush administration, the Obama
administration has invested border agents with
the authority to engage in suspicionless searches of Americans’ laptops and cell phones at
the border; Americans who return home from
abroad may now find themselves confronted with
a border agent who, rather than welcoming them
home, insists on copying their electronic records
—including emails, address books, photos, and
videos—before allowing them to enter the country. (Through FOIA, the ACLU has learned that
in the last 20 months alone, border agents have
used this power thousands of times.)
The Obama administration has also adopted

Establishing A New Normal | 16

some of the Bush administration’s arguments
on issues relating to free speech. In an important case that reached the Supreme Court, the
Obama administration took the position that it
could prosecute individuals under a statute that
bars the provision of “material support” to terrorist organizations even if the support in question consists solely of speech—advice on issues
relating to international law, for example, or on
peaceful resolution of conflicts. In a dispiriting
oral argument, Solicitor General Elena Kagan
even proposed that lawyers could be sent to
prison for filing friend-of-the-court briefs on
behalf of designated terrorist organizations. The
Supreme Court ultimately adopted many of the
administration’s arguments and issued a decision that can fairly be described as a catastrophe
for the First Amendment.

There is one area in which the Obama administration has made a notable break with the policies of the last administration. During the last
administration, dozens of foreign writers, scholars, and artists were denied visas to visit the
United States because they held political views
that the administration disfavored. Many of the
excluded individuals were critics of American
foreign policy. Early this year, the Obama administration ended the exclusions of two particularly
prominent foreign intellectuals—Tariq Ramadan,
a professor at the University of Oxford, and Adam
Habib, the Vice-Chancellor of Research at the
University of Johannesburg in South Africa. The
decision to end these exclusions represented an
important victory for free speech and the free
exchange of ideas across international borders.

Establishing A New Normal | 17

WATCH LISTS
The national security establishment’s record in
creating and managing watch lists of suspected terrorists has been a disaster that too often
implicates the rights of innocent persons while
allowing true threats to proceed unabated. This
regrettable outcome is partly a result of mismanagement and partly due to the deceptive difficulty
of creating identity-based systems for providing
security. These failures have been documented
in a long string of government reports, which
are consistent in their identification of persistent design flaws and ongoing, unacceptably high
error rates.26 In May 2009 the Department of Justice Inspector General found that many subjects
of closed FBI investigations were not taken off the
list in a timely manner, and tens of thousands of
names were placed on the list without appropriate basis.27 A 2009 report by the Inspector General of DHS detailed extensive problems with the
redress process for people improperly identified
on watch lists.28 Further, because of outmoded
information technology systems, the method for
clearing the names of people who pose no threat
to national security from watch lists is plagued
by delays, and DHS can’t even monitor how many
cases it resolves. Yet in the wake of Umar Farouk
Abdulmutallab’s failed Christmas Day bomb-

ing, National Counter-Terrorism Center Deputy
Director Russell Travers told Congress that the
watch list architecture “is fundamentally sound,”
and suggested that the lists would soon be getting bigger: “The entire federal government is
leaning very far forward on putting people on
lists.”29
Indeed, rather than reform the watch lists the
Obama administration has expanded their use
and resisted the introduction of minimal due process safeguards to prevent abuse and protect civil liberties. The Obama administration has added
thousands of names to the No Fly List, sweeping
up many innocent individuals. As a result, U.S.
citizens and lawful permanent residents have
been stranded abroad, unable to return to the
United States. Others are unable to visit family on
the opposite end of the country or abroad. Individuals on the list are not told why they are on the
list and thus have no meaningful opportunity to
object or to rebut the government’s allegations.
The result is an unconstitutional scheme under
which an individual’s right to travel and, in some
cases, a citizen’s ability to return to the United
States, is under the complete control of entirely
unaccountable bureaucrats relying on secret evi-

From left to right: Ayman Latif, Adama Bah, Raymond Earl Knaeble, Halime Sat, and Steven Washburn; plaintiffs in an ACLU
challenge to the “No Fly List”

Establishing A New Normal | 18

dence and using secret standards. The ACLU has
filed a lawsuit challenging this lack of due process.
The ACLU has also challenged the government’s
authority to freeze the assets of U.S. charities
“pending investigation” without any judicial process and on mere suspicion that they engaged
in prohibited transactions. In Kindhearts v. Geithner, a federal district court recently held that
the government cannot simply freeze a charity’s
assets now, and ask questions later. Rather, the
court ruled that the government must first at
least establish probable cause that some viola-

tion occurred, and that the charity must have an
opportunity to rebut the government’s allegations. The Obama administration continues to
oppose even this small measure of due process,
insisting in court filings that the protections of
the Fourth Amendment are inapplicable to the
wholesale freezing of a U.S. entity’s property.
Instead of appealing a sensible court decision,
the administration should settle this litigation
and work with Congress to enact a constitutional
scheme that combats terrorist financing while
respecting the constitutional rights of American
citizens and charitable entities.

Establishing A New Normal | 19

CONCLUSION
President Obama will be in office at least through
2012, and perhaps through 2016. But the policies
the Obama administration pursues on the issues
discussed in this report will have implications
that will extend far beyond this presidency. That
is why it is so critical that the administration right
its course and keep faith with our nation’s highest ideals and aspirations.
There can be no doubt that the Obama administration inherited a legal and moral morass, and
that in important respects it has endeavored to
restore the nation’s historic commitment to the
rule of law. But if the Obama administration does
not effect a fundamental break with the Bush

administration’s policies on detention, accountability, and other issues, but instead creates a
lasting legal architecture in support of those
policies, then it will have ratified, rather than
rejected, the dangerous notion that America is in
a permanent state of emergency and that core
liberties must be surrendered forever.
The ACLU will continue to monitor the impact of
the administration’s national security policies on
civil liberties and human rights. Our hope is that
this report, published less than half-way through
the President’s first term, will serve as a vehicle
for reflection and further dialogue.

Establishing A New Normal | 20

ENDNOTES
1 Presidential Memorandum on Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2010), http://www.
whitehouse.gov/the-press-office/transparency-and-open-government.
2 Presidential Memorandum on the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2010), http://www.whitehouse.gov/the-press-office/freedom-information-act.
3 Exec. Order No. 13,526, 75 Fed. Reg. 705 (Dec. 29, 2009) (Classified National Security Information), http://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information
4 Steve Bagley, FOIA Ombudsman Promises Sunshine, Main Justice (Oct. 14, 2009), http://www.mainjustice.
com/2009/10/14/foia-ombudsman-promises-sunshine-eventually/
5 Exec. Order No. 13,526, supra note 3; Office of Mgmt. & Budget, Open Government Directive (Dec. 8, 2009), http://www.
whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
6 Central Intelligence Agency, Office of Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities, September 2001 – October 2003 (May 7, 2004), http://luxmedia.com.edgesuite.net/aclu/IG_Report.pdf.
7 Office of Prof’l Responsibility, Report of Investigation into the OLC’s Memoranda Concerning Issues Related to the
CIA’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (July 29, 2009), http://graphics8.nytimes.com/
packages/pdf/politics/20100220JUSTICE/20100220JUSTICE-OPRFinalReport.pdf; Memorandum from David Margolis,
Assoc. Dep. Att’y Gen., to Att’y Gen. Eric Holder Regarding Objections to the OPR Report of Investigation into the OLC’s
Memoranda Concerning Issues Related to the CIA’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists
(Jan. 5, 2010), http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICE-DAGMargolisMemo.pdf.
8 Protected National Security Documents Act of 2009, Pub. L. No. 111-83, § 565, 123 Stat. 2142, 2184-86.
9 Dean Yates, Reuters Seeks US Army Video of Staff Killed in Iraq, July 11, 2008, http://www.reuters.com/article/
idUSL05399965; David Schlesinger, War Journalists Have Right to Safety, Guardian (U.K.), Apr. 21, 2010, http://www.guardian.co.uk/commentisfree/cifamerica/2010/apr/21/war-journalists-right-safety.
10 Exec. Order No. 13,491, 74 Fed. Reg. 4891 (Jan. 22, 2009) (Ensuring Lawful Interrogations), http://www.whitehouse.
gov/the_press_office/EnsuringLawfulInterrogations/
11 Memorandum from David J. Barron, Acting Ass’t Att’y Gen. to Att’y Gen. Eric Holder Regarding Withdrawal of Office
of Legal Counsel CIA Interrogation Opinions (Apr. 15, 2009), http://www.justice.gov/olc/2009/withdrawalofficelegalcounsel.pdf.
12 Statement of President Barack Obama on Release of OLC Memos (Apr. 16, 2009), http://www.whitehouse.gov/the_
press_office/Statement-of-President-Barack-Obama-on-Release-of-OLC-Memos/
13 Brief in Opposition to Petition for Certiorari, Arar v. Ashcroft, No. 09-923 (May 12, 2010).
14 See, e.g., Brief of the United States, Padilla v. Yoo, No. 09-16478 (9th Cir. Dec. 3, 2009).
15 Senator Barack Obama, Remarks at the Wilson Center, The War We Need to Win (Aug. 1, 2007), http://www.barackobama.com/2007/08/01/the_war_we_need_to_win.php
16 Barack Obama, Renewing American Leadership, Foreign Affairs, July/Aug. 2007.
17 Obama, The War We Need to Win, supra note 14.
18 Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009) (Review and Disposition of Individuals Detained at the
Guantánamo Bay Naval Base and Closure of Detention Facilities).
19 Abdah v. Obama, No. 04-1254, __ F. Supp. 2d __, 2010 WL 2326041 (D.D.C. May 26, 2010).
20 President Barack Obama, Remarks on National Security at the National Archives (May 21, 2009), http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09/.

Establishing A New Normal | 21

21 Id.
22 Julian E. Barnes, U.S. Hopes to Share Prison with Afghanistan, L.A. Times, June 9, 2010.
23 Obama, The War We Need to Win, supra note 14.
24 Id.
25 Interview by Eric Schmidt with Senator Barack Obama at Google (Nov. 14, 2007), http://www.youtube.com/
watch?v=m4yVlPqeZwo.
26 See for example, GAO Report to Congressional Requesters, GAO-03-322 Terrorist Watch Lists Should Be Consolidated
to Promote Better Integration and Sharing (April 2003); Department of Homeland Security, Office of Inspector General,
OIG-04-31 DHS Challenges in Consolidating Terrorist Watch List Information (August 2004); Department of Justice, Office
of the Inspector General, Audit Report 05-27 Review of the Terrorist Screening Center (Redacted for Public Release) (June
2005); Department of Justice, Office of the Inspector General, Audit Report 05-34, Review of the Terrorist Screening Center’s Efforts to Support the Secure Flight Program (Redacted for Public Release) (August 2005); Department of Justice,
Office of the Inspector General, Audit Report 07-41, Follow-Up Audit of the Terrorist Screening Center (Redacted for Public
Release) (September 2007); Department of Justice, Office of the Inspector General, Audit Report 08-16, Audit of the U.S.
Department of Justice Terrorist Watchlist Nomination Processes (March 2008); Department of Justice, Office of the
Inspector General, Audit Report 09-25, The Federal Bureau of Investigation’s Terrorist Watchlist Nomination Practices (May
2009); Department of Homeland Security, Office of Inspector General, OIG-00-103, Effectiveness of the Department of
Homeland Security Traveler Redress Inquiry Program, (September 2009).
27 Department of Justice, Office of the Inspector General, The Federal Bureau of Investigation’s Terrorist Watchlist Nomination Practices (May 2009), Audit Report 09-25.
28 Department of Homeland Security, Office of Inspector General, Effectiveness of the Department of Homeland Security Traveler Redress Inquiry Program OIG-00-103 (September 2009).
29 See The Lessons and Implications of the Christmas Day Attack: Watchlisting and Pre-Screening, Hearing of the S. Comm.
On Homeland Security and Governmental Affairs, 111th Cong. (2010)(Statement of Russell Travers, Deputy Director National
Counterterrorism Center); and Mike McIntire, Ensnared by Error on Growing U.S. Watchlist, New York Times, Apr. 6, 2010,
at: http://www.nytimes.com/2010/04/07/us/07watch.html?pagewanted=all.

Establishing A New Normal | 22

 

 

Prison Phone Justice Campaign
Advertise here
The Habeas Citebook: Prosecutorial Misconduct Side