100 Days to Restore the Constitution: Assessment

Print Friendly and PDF
CCR's 100 Days Campaign image

The First 100 Days of the Obama Administration: Small Glimmers of Hope, but Little Real Change

The first 100 days of the Obama administration presented a historic opportunity to restore the Constitution after the Bush administration’s systematic attempts to dismantle it, right by right, while ignoring international human rights standards. Yet, despite several strong steps, the Obama presidency has failed to live up to its promises in many areas of critical importance, including human rights, torture, rendition, secrecy and surveillance.

In the 2008 elections, the people of the United States resoundingly rejected the Bush administration legacy of torture, warrantless surveillance and a seemingly endless expansion of executive power under the rubric of the “war on terror.” What remained to be seen, however, was the political willingness and commitment of the Obama administration to not only promise hope and change, but to take concrete action to free the United States, its people and the world of the attacks on civil liberties and other human rights over the past 8 years – and beyond – and to restore the Constitution and the freedoms and rights it promises.

The Center for Constitutional Rights is committed to a vision of social justice that requires resolute action to restore and expand the Constitution. The Center has taken action accordingly – from its numerous legal cases challenging attacks on dissent, unlawful detention, extraordinary rendition, torture and other abuses, to its advocacy and education work addressing those same issues – in order to support existing movements and build a national movement for change.

In its first 100 days, the Obama administration has not lived up to its promises of hope and change. The record is contradictory and shows the critical task that lies ahead if we are to push this administration to honor those promises.

The future will judge the Obama administration based on how it handles these challenges. The president must initiate a significant rollback of executive power, far greater than that so far embraced by the administration, and hold high level Bush officials accountable for the crimes they committed.

The intention of this report on the first 100 days of the Obama administration – tracked against CCR’s 100 Days goals for President Obama – is to assess where it has made progress and where it has merely paused or even sustained Bush policies and to provide a guide to moving real change forward. The Obama administration can indeed fulfill its promise – by creating a historic precedent for the rule of law, reestablishing the Constitution and clearly acknowledging – despite 8 years of assertions of imperial power – that presidential power does not include automatic immunity for criminal acts.

Heading: Prosecutions and Accountability: Incomplete

Prosecutions and Accountability: Incomplete

Item rating: positive

Positive: Releasing the Torture Memos

Item rating: incomplete

Incomplete: Holding the Torturers Accountable

Perhaps one of the most pressing challenges facing the new administration in its first 100 days has been the question of prosecutions and accountability for former Bush administration officials who broke the law. While the Obama administration released key memoranda proving Bush administration officials’ and attorneys’ direct involvement in the creation, authorization and implementation of torture and war crimes, most public statements by President Obama and other administration officials have focused on “moving forwards” and avoiding “retribution.” The vast amount of public information pointing to criminal activity committed by high level government officials compels the Obama administration to fully and transparently investigate and hold those responsible accountable to the fullest extent of the law – not to put the issue aside. For both victims of torture and the people of the United States, moving forward means prosecuting those who committed serious crimes in order to ensure justice for victims and a permanent end to the legacy of the Bush administration’s approval of torture.

Take Action

Call for the Impeachment of Torture Architect Jay Bybee: ccrjustice.org/get-involved/action/impeach-torture-architect-jay-bybee, and call for the appointment of a special prosecutor to initiate criminal investigations into the actions of Bush administration officials.

Heading: Ending Torture: An Unfinished Promise

Ending Torture: An Unfinished Promise

Item rating: positive

Positive: Mandating compliance with the Geneva Conventions through Executive Order

Item rating: negative

Negative: Keeping torture loopholes open in the Army Field Manual

President Obama’s January 22, 2009 executive orders mandating compliance with the Geneva Conventions and abolishing the “torture memos” of the Bush administration – as well as ordering the closure of Guantánamo within one year and shuttering CIA black sites – were a tremendous step forward. The reality of detainees’ continuing treatment today, however, and the persistence of Bush-era torture techniques added to the Army Field Manual in Appendix M, make ending torture an unfinished promise.

Take Action

Close the Torture Loopholes in the Army Field Manual: ccrjustice.org/get-involved/action/close-torture-loopholes-army-field-manual.

Heading: Ending Unlawful Detention and Extraordinary Rendition:  Early Hopes Fading Fast

Ending Unlawful Detention and Extraordinary Rendition: Early Hopes Fading Fast

Item rating: positive

Positive: Shuttering the CIA Black Sites and ordering the closure of Guantánamo

Item rating: incomplete

Incomplete: Holding the Military Commissions on “Pause” for 120 days

Item rating: negative

Negative: Defending Bagram Air Force Base in Afghanistan as a new prison outside the law

President Obama issued key executive orders on January 22, 2009, addressing unlawful detention and extraordinary rendition. The orders called for the closure of the prison camp at Guantánamo within one year and ordered CIA “black sites” and detention facilities to be shuttered. The same executive order that established the Army Field Manual as the guideline for interrogation practices also addressed extraordinary rendition, the forced transfer of a person to another country to be arbitrarily detained, and interrogation under torture. While the memos ordered a study and verification that no renditions are performed to countries that torture or for the purpose of torture, the process of rendition itself – the kidnap of persons in a foreign country and their subsequent transport to another country or the U.S. – remained intact. That these executive orders were introduced so quickly upon President Obama’s inauguration sparked an initial hope; however, that spark quickly faded in the ensuing 100 days and an Obama administration detention policy that has, in practice, too frequently has resembled that of the Bush administration. In practice, the men at Guantánamo have remained imprisoned, often under inhumane conditions, and the Obama administration has defended in court the use of Bagram Air Force Base in Afghanistan as a new prison outside the reach of law.

Case Study

Arar v. Ashcroft: ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft.

Heading: Abolishing Preventive Detention: Dangerous Silence

Abolishing Preventive Detention: Dangerous Silence

Item rating: incomplete

Warning: Preventive detention structures remain available in the U.S. and new structures continue to pose a threat.

Discussions of preventive detention have recently come to the forefront due to numerous right-wing proposals for new “national security courts” or “preventive detention” structures that would enable the continuation of Guantánamo in the United States – detention without charge and without trial, without normal rules of evidence or standards of law. Preventive detention is, unfortunately, far from a mere threat in the United States or an issue that pertains only to those detained abroad. While structures enabling abuse and preventive detention have long existed in the United States, particularly following the passage in 1996 of immigration laws that substantially increased immigrant detention, the Bush administration made the domestic use of preventive detention a cornerstone of its so-called “war on terror” policy within the United States, a policy that was used with particular brutality against Arabs, South Asians, and Muslims. The Obama administration has been largely silent on the issue of preventive detention – particularly the existing domestic preventive detention regimes that have caused vast harm to many people who would never be charged at all or charge only with minor immigration violations without relation to criminal conduct. Preventive detention is a threat to due process, the rule of law and, most directly, to those targeted in “preventive” dragnets. It is critical that the Obama administration not only reject preventive detention in the context of Guantánamo but also in the context of the “war at home.”

Case Study

Turkmen v. Ashcroft: ccrjustice.org/ourcases/current-cases/turkmen-v.-ashcroft.

Heading: Protecting Dissent: Action Needed

Protecting Dissent: Action Needed

Item rating: negative

Negative: Increasing “Green Scare” prosecutions of environmental activists

The Obama administration has failed to move in the first 100 Days on key issues regarding the right to dissent. The Department of Justice and the Department of Homeland Security, however, have taken actions that led to the continued and enhanced use of “terrorism” prosecutions against animal rights and environmental activists. These actions indicate that the “Green Scare” – the repression of activists by designating them terrorists, with a specific concentration on the animal rights and environmental movement – continues in full swing. Without significant pressure from the movement for the right to dissent, positive action from President Obama, DHS and the DOJ are unlikely. The escalation of “Green Scare” prosecutions in the first 100 days of the Obama administration demonstrate not only the need for action from the Obama administration but an end to complacency among activists about attacks on the right to dissent.

Take Action

Join the Abolish the Animal Enterprise Terrorism Act Coalition: abolishtheaeta.org/.

Heading: Reining in Presidential War Powers: The War Machine Rolls On

Reining in Presidential War Powers: The War Machine Rolls On

Item rating: negative

Negative: Expanding the War in Afghanistan and Pakistan

While the Obama administration revealed the series of Bush administration Office of Legal Counsel memos that laid out supreme executive power for the U.S. president and repudiated them in their entirety, presidential war powers have continued unchecked. It is incumbent upon members of Congress to take initiative to amend the War Powers Resolution, as the Center for Constitutional Rights recently recommended in its white paper on presidential war powers. To date, President Obama has continued on the path of war and occupation, promising to commit more troops to the war on Afghanistan, justifying continued occupation in Iraq, and relying on the Authorization for Use of Military Force to assert detention powers. President Obama could truly repudiate the past 8 years of unprecedented assertions of presidential war powers by taking the initiative to work with Congress to construct a War Powers Resolution that protects and affirms the checks and balances intended in the Constitution.

Take Action

Repeal the AUMF for Iraq: ccrjustice.org/get-involved/action/take-action-repeal-aumf-iraq.

Heading: Ending the Abuse of the State Secrets Privilege: The Bush Years Continue

Ending the Abuse of the State Secrets Privilege: The Bush Years Continue

Item rating: positive

Positive: Affirming new guidelines for the Freedom of Information Act that promote openness

Item rating: negative

Negative: Continuing the abuse of the state secrets privilege in an attempt to throw torture victims’ lawsuits out of court.

The first 100 days of the Obama administration have seen a disappointing reaffirmation of the Bush administration’s frequent abuse of the state secrets privilege. The state secrets privilege, initially a privilege asserted by the federal government in an attempt to exclude evidence from the courtroom, became, under the Bush administration, a key tool in attempting to block lawsuits by torture victims, victims of warrantless surveillance and others altogether. President Obama promised a greater transparency during his campaign, and has, in some cases, delivered: his January 21, 2009 order directing a new and positive approach to the Freedom of Information Act culminated in Attorney General Eric Holder’s guidelines for FOIA, which encourage transparency and the release of information. After 8 years of the Bush administration’s intense hostility to FOIA, this is a clear step forward against excessive government secrecy. President Obama and the Department of Justice have, however, continued the Bush legacy in legal matters involving the state secrets privilege, upholding Bush-era arguments and attempts to dismiss entire lawsuits by torture victims. It remains for the Obama Administration to re-establish the standards that the Constitution demands.

Take Action

End the Abuse of the State Secrets Privilege: ccrjustice.org/get-involved/action/stop-abuse-state-secrets-privilege%21.

Heading: Stopping Warrantless Wiretapping:  Impunity and Immunity

Stopping Warrantless Wiretapping: Impunity and Immunity

Item rating: negative

Negative: Introducing new legal arguments relying on the Patriot Act to keep the government immune from lawsuits due to its illegal spying

The Obama administration has moved far from the positions the President Obama staked out during his candidacy. The Bush administration’s unlawful warrantless wiretapping program swept up the communications of millions of Americans – “nearly every phone call ever made,” according to press reports. In direct violation of U.S. laws and clear judicial precedent, the Bush administration’s National Security Agency engaged in a wide-ranging surveillance program that never sought or secured court approval. In cases challenging warrantless wiretapping in court, the Bush administration often defended itself by asserting the state secrets privilege, despite the widespread exposure of the program. As a candidate, President Obama denounced warrantless wiretapping, but in office, the new administration’s Department of Justice has repeatedly countered challenges to the program with state secrets claims and sovereign immunity claims.

Case Study

CCR v. Bush: ccrjustice.org/ourcases/current-cases/ccr-v.-bush.

Heading: Rolling Back Executive Power: Imperial Presidency?

Rolling Back Executive Power: Imperial Presidency?

Item rating: positive

Positive: Recognizing that the Attorney General, and not the president, has the authority to make the decision whether to prosecute torturers

Item rating: negative

Negative: Failing to renounce the Bush administration's claimed "inherent authority" in the so-called "war on terror”

It was not only the potential for an end to the lawless actions, repression, imperial arrogance, and criminal brutality of the last administration and that a new day of expanded rights would emerge that brought hope to the world in the 2008 U.S. elections – President Obama’s historic victory was seen by many as an achievement of the civil rights movement and the struggle against racism. Activists around the globe hoped for the expansion of social, racial, gender and economic justice and other human rights, the recognition of health care as a human right, respect for international law and respectful, not imperial, engagement with the rest of the world. The Bush administration’s officials and advisers oversaw and directed an unprecedented expansion of executive power. Presidential signing statements on legislation attempted to invalidate the separation of powers through an unauthorized line-item veto, and legal advisers espoused a ‘unitary executive’ theory which proposed kinglike powers for the president, unchecked by Congress or the judiciary. The so-called “war on terror” paradigm, within and without the United States, saw grave damage done to human rights and human lives, the rule of law and the U.S. Constitution. The Obama administration presents an opportunity to reconnect with the world; however, it has not seized that potential to date. The great challenge of the first 100 Days of the Obama administration can no longer be pushed aside: as the mountain of evidence grows, particularly with the administration’s release of the infamous torture memos, President Obama must allow the Department of Justice to pursue accountability for the crimes of the Bush administration without political interference or pressure. If the Obama administration acts with principle, firmness and commitment to law and justice and holds those officials accountable, it has the potential to fulfill its promise as a historic presidency. Without accountability and prosecutions, however, the first 100 Days of the Obama administration will lead to a historic disappointment and failure.

To learn more about CCR's 100 Days campaign, visit the 100 Days to Restore the Constitution page or click on the image below.

CCR's 100 Days Campaign to Restore the Constitution