How “Thou Shalt Not” Became “Thou Shalt”
In January 2009, Barack Obama entered the Oval Office projecting idealism and proud to be the constitutional law professor devoted to turning democratic principles into action. In his first weeks in office, in a series of executive orders and public statements, the new president broadcast for all to hear the five commandments by which life in his new world of national security would be lived.
Thou shalt not torture.
Thou shalt not keep Guantanamo open.
Thou shalt not keep secrets unnecessarily.
Thou shalt not wage war without limits.
Thou shalt not live above the law.
Five years later, the question is: How have he and his administration lived up to these self-proclaimed commandments?
Let’s consider them one by one:
1. Thou Shalt Not Torture.
Here, the president has fared best at living up to his own standards and ending a shameful practice encouraged and supported by the previous administration. On his first day in office, he ordered an end to the practice of torture, or as the Bush administration euphemistically called it, “enhanced interrogation techniques” (EITs), by agents of the U.S. government. In the president’s words, “effective immediately” individuals in U.S. custody “shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in [the] Army Field Manual.”
No questioning of future terror suspects would henceforth be done without using standard, legal forms of interrogation codified in the American criminal and military justice systems. This meant, among other things, shutting down the network of secret prison facilities, or “black sites,” the Bush administration had established globally from Poland to Thailand, where the CIA had infamously tortured its captives in the Global War on Terror. With that in mind, Obama ordered the CIA to “close as expeditiously as possible any detention facilities that it currently operates and... not operate any such detention facility in the future.”
The practice of officially sponsored torture, which had, in fact, begun to fall into disuse in the last years of the Bush administration, was now to come to a full stop. Admittedly, there are still some issues that warrant attention. The continued force-feeding of detainees at Guantanamo is a case in point, but state-sponsored torture, justified by law, is now, as before the Bush years, illegal in America.
The commandment banning torture has, it seems, lasted into the sixth year of Obama’s presidency -- and so much for the good news.
2. Thou Shalt Not Keep Guantanamo Open.
On his first day in office, President Obama also pledged to close the infamous Guantanamo Bay detention facility, home at the time to 245 detainees, within a year. The task proved politically impossible. So today, the president stands pledged once again to close it within a year. As he said in his State of the Union Address last month, “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay.” And it’s possible that, this time, he might actually do so.
In June 2013, the president appointed former Clinton White House lawyer Cliff Sloan as special envoy in charge of closing Guantanamo. After a long period in which the administration seemed stymied, in part by Congress, in its efforts to send detainees approved for release home or to a third country, Sloan has overseen the transfer from the island prison of 11 of them. He is now reportedly working to transfer the less than 80 remaining individuals the Pentagon has cleared.
But there’s a catch. No matter how many prisoners Sloan succeeds in releasing, President Obama has made it clear that he only means to close Guantanamo in the most technical sense possible -- by emptying the current facility in one fashion or another. He is, it turns out, quite prepared to keep the Guantanamo system of indefinite detention itself intact and has no intention of releasing all the detainees. Those who can’t be tried -- due, it is claimed, to lack of evidence -- will nonetheless be kept indefinitely somewhere. Fewer than 50 prisoners remain behind bars without charges or trial until -- as the formula goes -- the authorities determine that they no longer pose a risk to American national security. Although the population is indeed dwindling (Gitmo currently holds 155 detainees), the most basic aspect of the system, the strikingly un-American claim that suspects in Washington’s war on terror can be held forever and a day without charges or trial, will remain in place.
In other words, when it comes to his second commandment, the president will be able to follow it only by redefining what closure means.
3. Thou Shalt Not Keep Secrets.
The first issue that Obama singled out as key to his presidency on his initial day in office was the necessity of establishing a sunshine administration. Early on, he tied his wagon to ending the excessive secrecy of the Bush administration and putting more information in the public arena. Bush-era policies of secrecy had been crucial to the establishment of torture practices, warrantless wiretapping, and other governmental excesses and patently illegal activities. Obama’s self-professed aim was to restore trust between the people and their government by pledging himself to “transparency” -- that is, the open sharing of government information and its acts with the citizenry.
Transparency, he emphasized, “promotes accountability and provides information for citizens about what their government is doing. Information maintained by the Federal Government is a national asset. My administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.” Towards that end, the president made a first gesture to seal his good intentions: he released a number of previously classified documents from the Bush years on torture policy.
And there, as it happened, the sunshine ended and the shadows crept in again. In the five years that followed, little of note occurred in the name of transparency and much, including a war against whistleblowers of every sort, was pursued in the name of secrecy. In those years, in fact, the Obama administration offered secrecy (and its spread) a remarkable embrace. The president also sent a chill through the government itself by prosecuting seven individuals who saw themselves as whistleblowers, far more than all other presidents combined. And it launched an international manhunt to capture Edward Snowden, after he turned over to various journalists secret National Security Agency files documenting its global surveillance methods. At one point, the administration even arranged to have the Bolivian president’s plane forced down over Europe on the (mistaken) assumption that Snowden was aboard.
After the drumbeat of Snowden’s revelations had been going on for months, government officials, including the president, continued to insist that the NSA’s massive, secret, warrantless surveillance techniques were crucial to American safety. (This was denied in no uncertain terms by a panel of five prominent national security experts Obama appointed to examine the secret documents and propose reforms for the NSA surveillance programs.) Spokespeople for the administration continued to insist as well that the exposure of these secret NSA policies represented harm to the nation’s security of the most primal sort. (For this claim, too, there has still been no proof.)
Before Snowden's revelations about the gathering of the phone metadata of American citizens, Director of National Intelligence James Clapper evidently had no hesitation in lying to a congressional committee on the subject. In their wake, he claimed that they were the “most massive and most damaging theft of intelligence information in our history.” Certainly, they were the most embarrassing for officials like Clapper.
By 2014, it couldn’t have been clearer that secrecy, not transparency, had become this government’s mantra (accompanied by vague claims of national security), just as in the Bush years. One clear example of this unabashed embrace of secrecy came to light last month when that presidentially appointed panel weighed in on reforming the NSA. While constructive reforms were indeed suggested, the idea that a secret court -- the FISA court -- could be the final arbiter of who can legally be surveilled was not challenged. Instead, the reforms suggested and accepted by Obama were clearly aimed at strengthening the court. No one seemed to raise the question: Isn't a secret court anathema to democracy?
Nor, of course, has secrecy been limited to the NSA. It’s been a hallmark of the Obama years and, for instance, continues to hamper the military commissions at Guantanamo. Their hands are tied (so to speak) by the CIA’s obsessive anxieties that still-classified material might come out in court -- either the outdated information al-Qaeda figures detained for more than a decade once knew or evidence of how brutally they were tortured. Perhaps the most striking example of government secrecy today, however, is the drone program. There, the president continues to insist that the Justice Department documents offering “legal” authorization and justification for White House-ordered drone assassinations of suspects, including American citizens, remain classified, even as administration officials leak information on the program that they think will make them look justified.
On the commandment against secrecy, then, the president has decidedly and defiantly moved from a shall-not to a shall.
4. Thou Shalt Not Wage War Without Limits.
At the outset of Obama’s presidency, the administration called into question the notion of a borderless battlefield, aka the globe. He also threw into the trash heap of history the Bush administration’s term “Global War on Terror,” or GWOT as it came to be known acronymically.
This January, in his State of the Union address, the president stated his continued aversion to the notion that Washington should pursue an unlimited war. He was speaking by now not just about the geography of the boundless battlefield, but of the very idea of warfare without an endpoint. “America,” he counseled, “must move off a permanent war footing.” Months earlier, in speaking about the use of drone warfare, the president had noted his commitment to pulling back on the use of force. "So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [Authorization for the Use of Military Force’s] mandate."
Despite the president’s insistence on placing limits on war, however, his own brand of warfare has helped lay the basis for a permanent state of American global warfare via “low footprint” drone campaigns and special forces operations aimed at an ever morphing enemy usually identified as some form of al-Qaeda. According to Senator Lindsey Graham, the Obama administration has already killed 4,700 individuals in numerous countries, including Pakistan, Yemen, and Somalia. It has killed four U.S. citizens in the process and is reportedly considering killing a fifth. The president has successfully embedded the process of drone killings in the executive branch in such a way that any future president will inherit them, along with the White House “kill list” and its “terror Tuesday” meetings. Unbounded global war is now part of what it means to be president.
On the commandment against waging limitless war, then, the president has visibly failed to comply with his own mandate.
5. Thou Shalt Not Live Above the Law
At the outset of his presidency, Obama seemed to hold the concept of accountability in high regard. Following the spirit of his intention to ban torture, his attorney general, Eric Holder, opened an investigation into the torture policies of the Bush years. He even appointed a special prosecutor to look into CIA interrogation abuses. Two years later, though, all but two of the cases were dropped without prosecution. In 2012, the final two cases, both involving the deaths of detainees, were dropped as well on the grounds that there was insufficient evidence “to obtain and sustain a conviction beyond a reasonable doubt.” Nor was there any appetite inside the administration for prosecuting the Bush-era Justice Department lawyers who had drafted the “torture memos” providing the bogus justifications for applying torture techniques such as waterboarding in the first place.
Not punishing those who created and applied the policy was clearly a signal that no acts committed as part of the war on terror and under the rubric of national security would ever be prosecuted. This was, in its own way, an invitation to some future presidency to revive the torture program. Nor have its defenders been silenced. If torture had been considered truly illegal, and people had been held accountable, then perhaps assurances against its recurrence would be believable. Instead, each and every time they are given the chance, leading figures from the Bush administration defend the practice.
In former CIA Director Michael Hayden’s words, "the fact is it did work." Marc Thiessen, former speechwriter for President Bush and Secretary of Defense Rumsfeld, has underscored this message: "Dick Cheney is right. The CIA interrogation program did produce valuable intelligence that stopped attacks and saved lives."
While the case against the torturers was dropped, a potentially shocking and exhaustive analysis of CIA documents on the "enhanced interrogation program," a 6,000 page report by the Senate Select Committee on Intelligence, is still tangled up in administration secrecy rules and regulations (see Commandment 2), despite innumerable requests for its release. Supposedly the report claims that the torture program did not work or fulfill any of the claims of its supporters.
In other words, the absence of accountability for one of the most egregious crimes committed in the name of the American people persists. And from drone killings to NSA surveillance policies, the Obama administration has continued to support those in the government who are perfectly ready to live above the law and extrajudicially.
On this commandment, then, the president has once again failed to meet his own standards.
Five years later, Obama’s commandants need a rewrite. Here’s what they should now look like and, barring surprises in the next three years, these, as written, will both be the virtual law of the land and constitute the Obama legacy.
Thou shalt not torture (but thou shalt leave the door open to the future use of torture).
Thou shalt detain forever.
Thou shalt live by limitless secrecy.
Thou shalt wage war everywhere and forever.
Thou shalt not punish those who have done bad things in the name of the national security state.
Karen J. Greenberg, director of the Center on National Security at Fordham Law, is the author of The Least Worst Place: Guantanamo’s First One-Hundred Days, as well as of numerous articles on national security policy after 9/11, and a TomDispatch regular. Kevin Garnett, legal research fellow at the center, contributed research to this article.
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