by Sean Aughey
President Barack Obama's election produced great optimism for progress on human rights. But halfway through his term of office, Obama deserves a mixed review.
Obama's election campaign had championed human rights and expressly rejected the worst excesses of the 'War on Terror' which, over a period lasting longer than the Second World War, has embraced authorised torture, secret prisons and extraordinary rendition.
Obama has improved the United States' moral authority and promoted human rights as a central pillar of foreign policy. However, he has been unable or unwilling to dismantle the counter-terrorism legal architecture established by his predecessor, George W. Bush. Most strikingly, almost a year after the declared deadline for closure, and approaching the ninth anniversary of the arrival of its first detainees, Guantanamo Bay remains home to 174 individuals. The US is still in rehabilitation, but is not refusing all treatment.
Obama initially acted swiftly and decisively in attempting to restore US human rights credibility. On his second full day in office he issued executive orders rejecting torture, announcing the closure of Guantanamo Bay within a year and the dissolution of
Accountability and Transparency
In 2008, the
Around 35 Guantanamo detainees are being prosecuted but at least 50 are considered beyond due process owing to an inability to use evidence obtained through torture and a fear of compromising intelligence sources. Further, despite Obama's campaign pledge to reject the Military Commissions Act, his administration has continued to try some non-US detainees before discredited special military commissions lacking full criminal trial safeguards. Over eight years these commissions have produced only five convictions. Omar Khadr received eight years imprisonment in a plea bargain. The administration's efforts to continue federal trials have been challenged following the recent acquittal of Ahmed Ghailani of all but one of 285 charges relating to the 1998 bombings of US embassies in Kenya and Tanzania. The resulting 'disappointment' and 'distrust' of the criminal process led
As Obama recognised in a presidential memorandum, '[a] democracy requires accountability, and accountability requires transparency.' The early release of four infamous Bush-era memos documenting the authorisation of torture suggested commitment to this promise. However, the administration has since shrouded itself in secrecy. There has been no attempt to investigate or prosecute those who authorised torture, only those CIA interrogators alleged to have exceeded authority even under the Bushmemos. Not wanting to appear soft on counter-terrorism, Obama has declared a need to 'look forward, not back'. This approach conflicts with the very notion of accountability and contrasts with the planned UK public inquiry into high-level complicity.
In October, the UN Special Rapporteur on Torture called on Obama to comply with the obligation to investigate credible leaked evidence that US forces transferred detainees to Iraqi authorities knowing or suspecting that they may be tortured or killed. The principle of non-refoulement, which prohibits this, is central to the continued practice of extraordinary rendition. A task-force established by Obama recommended increased reliance on diplomatic assurances from receiving states that they will not torture. This is problematic; if one has to ask for such confirmation there is clearly cause for concern.
The administration has also not confirmed closure of CIA black-sites and has refused disclosure of basic information regarding Bagram detainees. Despite labelling the 'state secrets' privilege preventing domestic judicial scrutiny 'a blunt instrument' which 'should be modified' and criticising its frequent use by Bush, Obama has repeatedly relied on this doctrine. An example is the prevention of former Guantanamo detainee Binyam Mohammed from suing a
By contrast, Obama has been strongly criticised for lenient treatment of clear abuses by specific states including Iran's brutal crackdown on protestors and widespread violations in Vietnam, Honduras and Egypt. His initial reluctance to meet the Dalai Lama, coupled with a strong focus on economic issues during his recent Asia tour, indicate a tentative approach. Obama is right to be wary of Bush's use of democracy promotion to justify military operations in the Middle East. He argues that 'no repressive regime can move down a new path unless it has the choice of an open door'. While the premise may be sound, this is a difficult balance to strike and the administration's approach lacks full credibility. On the one hand, Obama has reversed a decade-old ban on contact with the elite Indonesian special forces unit and notorious human rights violator Kopassus and recently introduced a controversial exception to the Child Soldiers Prevention Act 2008, which bars US military cooperation with countries recruiting child soldiers. On the other hand, he recently withheld assistance from certain Pakistani military units and imposed sanctions on eight senior Iranian officials for human rights abuses.
Obama has re-engaged with
Obama's approach towards human rights features both continuity with and change from his predecessors.
It would be unfair to conflate problematic national security policies with a general malaise towards human rights. Caution, rather than resistance, delimits both domestic and international progress. Some commentators have suggested that Obama is trying to please everyone and satisfying few. He may now even lack the domestic strength necessary to pursue a human rights agenda abroad. It remains to be seen whether his human rights policies will be in better shape when he comes up for re-election. The next few months may reveal some of these answers. For now, the jury is out.
(Sean Aughey is working with the International Law Programme at Chatham House.)
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