At the end of each year I typically award the "Freeby" to the person who has done the most in the service of civil liberties. As dusk fell on 2008 and the reign-of-error Bush administration was packing up its jackhammers, I felt then that I could have written ahead to December 2009, giving the Freeby to President-elect Barack Obama. I was deliriously confident that all of his campaign promises to resurrect civil liberties and the rule of law would be fulfilled.
But I come to report that my hopes have been dashed in a way that is so thoroughly disappointing that I am devoting this column to the reasons why Obama is undeserving of the Freeby.
Yes, there have been accomplishments. Obama promised to end torture, and reports suggest that prisoners are no longer subject to brutal interrogations as a matter of policy. He said that he would close Guantanamo within a year, and while that will probably not occur before 2011, Obama is determined to get it done against terrific congressional opposition, even, shamefully, from his own party.
But even as our president seeks to close the dark symbol that is Guantanamo, he is working to enshrine the principle it stands for: that men arrested far from any battlefield can be held indefinitely and without charge on the president's orders.
There are reportedly 198 prisoners remaining at Guantanamo, some of whom commendably are now being prosecuted in federal court in New York, including 9/11 mastermind Khalid Sheikh Mohammed. Moving a high-profile terrorist from a legal black hole to an established, legitimate process is a significant step, but the Obama administration isn't doing that for every prisoner as it should.
Some detainees will be facing revamped but still deeply flawed military commissions. And then there are the leftovers, those prisoners whom the administration doesn't have much of a case against but doesn't want to free. Having those prisoners transferred to a supermax prison in rural Illinois makes their continued detention no more constitutionally palatable. In fact the whole plan, where legal forums get chosen based on the quality of the evidence (so prosecutors always win), sounds like little more than a gussied-up version of the Bush theory of detention.
Obama also fails the accountability test. We can debate to what degree there should be criminal prosecutions of Bush administration officials who authorized torture. But victims of torture should at least be allowed their day in court. That's not happening because Obama's Justice Department is fighting their cases using a sweeping definition of the state secrets defense.
The administration argued earlier this month before 11 federal judges of the 9th U.S. Circuit Court of Appeals in San Francisco that the case of five victims of extraordinary rendition and torture (in one case a man who endured cuts to his genitals to elicit a false confession) should be tossed out because some of the evidence includes national security secrets.
If this happens, it would devastate the notion that the CIA and executive branch are subject to enforceable legal constraints. Federal courts are well equipped to handle classified evidence, and there has to be some access to justice for people seriously and purposely physically abused due to our government's actions.
As shocking as this is, at least to me, there are people — certain right-wing talk show hosts and many Republicans in Congress, among others — who don't agree that torturing detainees or outsourcing the job to other regimes is wrong and illegal. We must have courts take these cases to at least make that much clear. Otherwise the next administration may return to those methods.
Finally, Obama has a mixed record on transparency. Back in April, the president overcame the resistance of Leon Panetta, his CIA chief, and released some of the Bush-era Office of Legal Counsel memos legally justifying abusive interrogation techniques. Well done there. But Obama is still refusing to make public OLC memos that gave the Bush administration legal cover for its program of domestic warrantless wiretapping.
In essence, Obama won't lay bare the full factual record of civil liberties abuses committed under President George Bush. It's as if he's asking us to ignore the big pile of garbage swept under the rug — one that we may dangerously trip over in the future.
So I'm keeping the Freeby award in reserve. Maybe Obama will live up to his promises and qualify next year. One can always hope.