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Establishing A New Normal


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 oft-stated 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 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 Bush-era 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 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...

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