Restoring the Rule of Law Scorecard
Civil Liberties:
How is the Obama administration doing?
Since the inauguration of President Obama, the ACLU of Massachusetts has been providing a periodic scorecard reflecting key decisions made by the Obama administration which either help restore the rule of law or continue Bush administration policies.
Things aren't going as well as we'd hoped.
Find Previous tallies here
Tally to Date: -19
The problem is not that the Obama administration has not immediately repaired all the damage done to civil liberties in recent years -- that would be a tall order.
Instead, we are looking at the decisions the administration is making that could help to restore the rule of law and evaluated whether or not that decision was a step in the wrong direction or a step in the right direction.
Details October 16, 2009
• ATTORNEY GENERAL ANNOUNCES LIMITED TORTURE INVESTIGATION
After the release in response to a court order of a long-secret report by the CIA’s inspector general into its interrogation of prisoners, Attorney General Eric Holder announced the appointment of prosecutor John Durham to conduct a narrowly-focused investigation into the actions of those CIA interrogators who appeared to have gone beyond waterboarding and other forms of torture permitted under the rules. Unauthorized techniques outlined in the report included threatening family members with sexual assaults and death, intimidation with a power drill, the restriction of a detainee’s carotid artery and the staging of mock executions. Off the hook are those who designed the coercive interrogation policies (New York Times, August 25). According to the September 19 New York Times, the investigation would focus on no more than 10 cases, and possibly fewer, including at least one where a detainee died under interrogation. Despite the extremely limited nature of the investigation, seven former CIA directors – including those who have been implicated in torture and assassinations - have urged President Obama to end it before it starts on the grounds that it would demonize the CIA and harm intelligence operations.
PLUS .5
• RENDITION TO CONTINUE UNDER OBAMA
On the same day as the Attorney General announced a limited investigation into interrogation of detainees, the Obama Administration said it will continue o use the policy of “extraordinary rendition” under which US operatives seize suspects and send them to third countries for interrogation and detention. The Administration pledged better oversight so that prisoners would not be tortured under the policy (New York Times, August 25). Candidate Obama had opposed the practice.
MINUS 1
• ADMINISTRATION ANNOUNCES PROCEDURES FOR BAGRAM DETAINEES
The more than 600 detainees at Bagram Air Force base in Afghanistan who have no access to lawyers and no right to hear the allegations against them will be assigned US military officials (not lawyers) who can gather witnesses and evidence on their behalf and help them challenge their detention before a military-appointed review board (New York Times, September 13). The so-called Detainee Review Boards will be similar to the Combatant Status Review Tribunals at Guantanamo, which were found inadequate by the US Supreme Court. Time will tell if they are better than the current total legal limbo in which detainees are being held.
PLUS .5
• ADMINISTRATION OPPOSES HABEAS CORPUS AT BAGRAM
The Administration is appealing a federal court ruling in April that the 30 or so Bagram detainees brought to the prison from outside Afghanistan and seized far from the battlefield have a right to challenge their imprisonment through the use of habeas corpus (New York Times, September 13). The detainees have been imprisoned for more than six years in a prison that is notorious for its brutality.
MINUS 1
• ADMINISTRATION SEEKS TO BLOCK FEDERAL COURTS FROM HEARING GUANTANAMO ABUSE CLAIMS
On October 4, the Center for Constitutional Rights (CCR) filed a legal challenge to the Obama Administration’s position that the Military Commissions Act of 2006 prevents detainees from Guantanamo from bringing claims of abuse to the federal court system. In June, the Justice Department had argued that the case of Al-Zahrani v. Rumsfeld should be dismissed because the Military Commission Act had stripped the federal courts over jurisdiction of claims of “detention, transfer, treatment, or conditions of confinement” of detainees considered “enemy combatants” (Washington Independent, October 14). The case was brought by the parents of two former detainees, Yasser Al-Zahrani and Salah Salami, who spent four years at Guantanamo, much of it in isolation, without being charged with any crime and without ever seeing a lawyer. They committed suicide in June 2006 and left letters in their cells detaining physical and psychological abuse. Al-Zahrani was 17 years old when he was sent to Guantanamo. CCR is arguing that the court-stripping provision of the Military Commissions Act is unconstitutional, citing the Supreme Court case Boumediene v. Bush.
MINUS 1
• ADMINISTRATION BLOCKS HUMAN RIGHTS INVESTIGATONS
The Obama Administration has refused to give UN human rights investigators information on secret prisons and to allow them to conduct interviews with Guantanamo detainees (Washington Post, July 23).
MINUS 1
• ADMINISTRATION SAYS ‘BLACK SITE’ INFORMATION SHOULD BE WITHHELD
Arguing that releasing such information would harm national security, the Obama Justice Department told a US District Court in Manhattan during a hearing on a FOIA lawsuit brought by the ACLU that it would not be releasing CIA-related records, including a presidential directive authorizing ‘black sites’ and CIA inspector general documents (ABC News, September 2). Many of the documents detail the treatment of detainees in Iraq and Afghanistan. Judge Alvin Hellerstein agreed that the CIA should not be forced to disclose hundreds of pages of internal documents about interrogations. (New York Times, October 1).
MINUS 1
• ADMINISTRATION STICKS WITH BUSH “STATE SECRETS” ARGUMENT
In the five-year-old case involving surveillance of the Al-Haramain Islamic Foundation, the Obama Administration has denied that its predecessor’s use of warrantless electronic surveillance in violation of the FISA law was illegal. In the words of Jon Eisenberg, an attorney for the now defunct charity, the government’s filing shows “not only that the Obama administration isn’t hedging on the state secrets argument, if anything it’s solidified” (ABC News, August 21). Echoing the previous Administration, Justice Department special counsel Anthony Coppolino argued before Chief US District Court Judge Vaughn Walker that “we need to protect information concerning the manner and methods by which we seek to detect and prevent a terrorist attack” (wired.com, September 23).
MINUS 1
• OBAMA MAKES LIMITED CONCESSIONS ON STATE SECRETS
With legislation to restrict the use by the executive branch of “state secrets privilege” moving through Congress, the Obama Administration announced it would use “state secrets privilege” more sparingly and apply it as narrowly as possible. But it refused to allow the judiciary to determine whether the doctrine was being used appropriately, as the State Secrets Protection Act would require, leaving the executive branch to police itself (The Washington Independent, September 23).
PLUS .5
• ADMINISTRATION ENDORSES BUSH POSITION IN WARRANTLESS WIRETAPPING CASE
In the case Wilner v. NSA, 23 American lawyers with Guantanamo detainees as clients brought a FOIA lawsuit against the Bush Administration in 2007, demanding to know if their privileged communications had been intercepted by the NSA under the government’s “Terrorist Surveillance Program.” When the case was heard in federal district court, the Bush Justice Department refused to say, citing national security concerns. The court backed the government and the lawyers appealed. The Obama Administration took a similar position when the case moved to the Court of Appeals for the Second Circuit. On October 9, Tomas Bondy, a Justice Department lawyer, urged the court to uphold the lower court ruling and deny the FOIA request. He further stated that the Obama Administration had no position on the legality of its predecessor’s warrantless wiretapping program (Reuters, October 9).
MINUS 1
• CHENEY ROLE IN CIA LEAK: STAY REQUESTED BY JUSTICE DEPARTMENT
The Obama Administration has requested a 30-day stay of a federal court order that parts of an 2004 interview between former Vice President Dick Cheney and the special prosecutor investigating the leak of the identity of CIA operative Valerie Plame Wilson should be made public as part of a FOIA lawsuit (Truthout, October 13). The Justice Department is considering appealing the ruling by US District Court Judge Emmet Sullivan, and argued that the stay “is necessary to avoid the irreparable harm that would result if the Government is forced to disclose its documents to the public before it has the opportunity to consider whether to pursue its appellate rights.” The judge has has agreed with the Obama Administration that some of the statements made by Cheney can be withheld on national security grounds.
MINUS 1
• OBAMA DECIDES THERE IS NO NEED FOR INDEFINITE DETENTION LAW
After announcing in his May speech at the National Archives that he may ask Congress to pass a law setting up preventive detention for detainees who “cannot be prosecuted yet who pose a clear danger to the American people,” the President has reportedly switched course and decided that the executive branch already has the necessary detention powers to hold detainees indefinitely without charge (Washington Post, September 24). Like the Bush Administration, the Obama Administration has invoked the 2001 Congressional Authorization for the Use of Military Force against al Qaeda and the Taliban as the source of that authority. The President, unlike Bush, is not claiming to possess the “inherent authority” to detain suspects without charge and – for the moment, at any rate - he appears to be reluctant to become the first President to propose a preventive-detention law.
PLUS 1
• WHITE HOUSE TO MAKE LIST OF VISITORS PUBLIC
On September 4, the President responded to a successful lawsuit brought by Citizens for Responsibility and Ethics in Government by announcing that the White House would publish a list of its visitors. The new policy will go into operation on September 15 (ABC News, September 4).
PLUS 1
• OBAMA SAYS TERROR LISTS SHOULD BE KEPT SECRET
In a move that will make it difficult for innocent people to challenge their inclusion on the government’s bloated watch lists (which the ACLU estimates now contain more than 1.25 million names), the Obama Administration has insisted that the information remain a closely-held secret (Washington Post, September 6).
MINUS 1
• OBAMA WANTS TO EXPAND STAFF AT FUSION CENTERS
A line in the Obama Administration’s 2010 budget would give an additional $260 million to the Department of Homeland Security to provide fusion centers with thousands more state and regional analysts (pacificfreepress.com, September 10).
MINUS 1
• OBAMA WANTS CONGRESS TO RENEW PATRIOT ACT PROVISIONS
The President may have criticized aspects of the USA PATRIOT Act when he was a senator, but now he wants the three provisions that are due to sunset in December to be renewed. The provisions encompass the “roving wiretap” section, the ability to get the business records of suspects from third parties, and the targeting of “lone wolf” suspects who may not belong to a terrorist group (Christian Science Monitor, September 14).
MINUS 1
• WHITE HOUSE ASKS CONGRESS TO LIMIT SHIELD LAW
The Obama Administration has weighed in on legislation that would protect reporters from being imprisoned for refusing to divulge their sources by proposing that the “media shield” law not apply in cases of information that could cause “significant” harm to national security (New York Times, October 1). The Administration wants the courts to accept the word of the executive branch about whether such harm could occur. The Democratic sponsors of the bill, Senators Schumer and Specter, have called the White House position “totally unacceptable.” Since 2001, at least 19 journalists have been subpoenaed by federal prosecutors for information about their confidential sources and four who refused to comply have been jailed.
MINUS 1
RULE OF LAW SCORECARD TALLY AS OF OCTOBER 16: MINUS 19
Get more
Civil Liberties Updates
You can also get the latest Civil Liberties Update from the ACLU of Massachusetts, as well as an archive of simlar updates going back to 2004, here.
The First 100 Days
You can download a PDF with the complete scoring and background information on each issue we evaluated:
Restoring the Rule of Law Scorecard: Obama's First 100 Days
ACLU's "Actions for Restoring America"
In November 2008, the national ACLU released a 105-page document with recommendations for President Obama's first 100 days, his first year, and beyond:
Actions for Restoring America:
Transition Recommendations for President-Elect Barack Obama,
There is now an update, with detailed links on actions related to the recommendations in the plan. Items on which action has been taken are marked with red asterisks.
Podcasts
You can also listen to the keynote address by Salon.com columnist Glenn Greenwald at our 2009 Statewide conference as a podcast. Greenwald argued that no one should accept the accusation that insisting on the restoration of the rule of law is somehow "extreme."
