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 Central Intelligence Agency (CIA) 'black-site' prisons. These actions went some way towards complying with international human rights obligations but significant problems persist regarding continued counter terrorism policies. On Guantanamo, Obama is to be credited for the release of 66 prisoners since taking office. Closure has been hamstrung partly by Congress passing restrictions on the relocation of detainees to the US. The greatest concern is not whether, or even how, Guantanamo will be closed but the continued policy of indefinite detention without charge or trial anywhere. Whilst Bush tried to exempt detainees from the law, Obama relies on the September 2001 Congressional authorisation of the use of force as empowering detention of terrorist suspects until the 'War on Terror' is won.

Accountability and Transparency

In 2008, the Supreme Court ruled that non-American Guantanamo detainees have the constitutional right to file habeas corpus petitions challenging the validity of their detention before federal courts. Of 57 applications, the government has been found to lack sufficient evidence to detain in 38 cases. Intense public scrutiny of Guantanamo has led to increased use of the detention centre at Bagramair base in Afghanistan, which is holding around 645 detainees. The Obama administration has successfully blocked these individuals from filing habeas corpus petitions by arguing that the prison is in a conflict zone. However, many detainees were captured elsewhere and transferred to that theatre of war. This seriously undermines the express commitment to 'no law-free zones.' Obama continues to reject the application of human rights treaties outside the US and the applicability of human rights law in armed conflict. While the president asserts commitment to international humanitarian law, the law of non-international armed conflict contains no due process safeguards. Although the administration has pledged to transfer control of Bagram to Afghan authorities next year, Obama may hope to retain a separate US detention centre there.

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 Congress to oppose plans to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four alleged coconspirators before a federal civilian court. The administration has also stressed that certain detainees will not be released, even if acquitted. Britain's experience with the Irish Republican Army demonstrates that terrorist suspects can and should be dealt with by the ordinary criminal justice system.

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 Boeing subsidiary alleged to have operated rendition flights. Obama has gradually becomemore comfortable with promoting human rights internationally. Like Bush, Obama sees human rights as securing 'freedom from fear' through civil and political rights. Whereas Bush appeared to equate human rights with elections, Obama rightly emphasises that freedom of expression and association support open government. Early statements by Secretary of State Hillary Clinton suggested that human rights would be subordinated to trade in US-China relations. The appointment in 2009 of individuals with significant claimant-based human rights experience to key administration positions - including Harold Koh as Legal Adviser and Michael Posner as Assistant Secretary of State for Democracy, Human Rights and Labour - marked a turning point. Most recently, Obama's September 2010 UN General Assembly speech devoted considerable time to human rights. He has repeatedly rejected as false the dichotomy between realism and idealism, reaffirming that human rights cannot be sacrificed to other interests.

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 the United Nations, recognising that it 'can still play an indispensable role in the advance of human rights'. In particular, in 2009 the US joined the principal, albeit flawed, international human rights body, the Human Rights Council. US participation achieved a new resolution on freedom of expression and a fact-finding mandate on freedom of association, and prevented relaxation of the scrutiny of many states. The administration has also engaged positively on economic and social rights, despite characterising these domestically as a matter of social policy, not constitutional obligation. In November, as part of the Council's Universal Periodic Review mechanism, the US faced intense public scrutiny of its human rights record. The administration deserves credit for thoroughly engaging with civil society in the preparation of its report. Although Obama was criticised domestically for exposing the US to condemnation from North Korea, Iran and Cuba, the debate was instructive. Member states particularly challenged the death penalty and US failure to ratify many major human rights treaties. The Council subsequently issued recommendations to which the US has until March 2011 to respond. The administration asserted intent to ratify the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on Rights of Persons with Disabilities. However, this is rendered increasingly unlikely by the constitutional requirement of 67 Senate votes to ratify international treaties combined with the loss of seats in recent mid-term elections.

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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Obama and Human Rights: Continuity and Change | Politics