Time for a Reset on Human Rights

In 2008, Barack Obama’s election thrilled many human rights activists. For eight years under George W. Bush, the U.S. government had used torture, held hundreds in long-term detention without trial, and committed abuses at wartime prisons such as Iraq’s Abu Ghraib. Rights advocates hoped — and, based on many of Obama’s election-season remarks, reasonably expected — that the unlawful renditions, secret prisons, and unfair trials would give way to a new American commitment the Constitution and international law.

Although Obama faced truculent political opposition in his first term, his weak record on human rights cannot be explained away by economic exigencies or even congressional defiance. Obama now openly embraces the concept of a global "war on terror" as grounds to override international human rights norms and reinterpret the Constitution. Osama Bin Laden’s killing was not only the chief talking point of his campaign but a synecdoche for his approach to the terrorist threat, one in which the administration writes its own rules. Although preventing attacks on U.S. soil represents an important human rights victory, this should not overshadow the worrisome direction of U.S. human rights policy and its long-term consequences. If the president’s legacy is to include reclaiming U.S. human rights credibility, he needs to face up to his troubling record, and fix it.

The Obama administration has led in some areas of human rights policy; examples include advancing gay and lesbian rights, bolstering U.N. human rights mechanisms, and promoting Internet freedom. But where human rights norms are pitted against counterterrorism tactics, it has fallen down. Blocked by Congress, Obama broke his first-term promise to close Guantánamo. Four years later, that failure barely seems to register as a disappointment; 167 men languish in the prison, including 55 who are cleared for release but have not been transferred.

Recent weeks have revealed details of an Orwellian "disposition matrix" — a kill list of top terrorist targets that keeps getting longer. The administration claims the authority to kill those named, anytime and anywhere, based on secret information and unreviewable judgments. The administration has declared any man killed by a drone to be an enemy terrorist, and defends such killings regardless of resulting civilian casualties.

With the U.S. withdrawing from Afghanistan, these extraordinary powers are detached from any major battlefield or conventional war. The administration is now backed into claiming that a war exists because it has convinced itself it cannot function without a broad license to kill. Short of al Qaeda suing for peace, this war may never end. The administration’s reshaping of the concept of war risks undoing over 100 years of evolution of the laws of war, and the protections those laws have delivered.

The next four years will define whether this rewriting of the rules becomes a bipartisan "new normal" in the United States, and implicit permission for the rest of the world to sidestep human rights. Absent swift progress to close Guantánamo, the men now held will likely die there of old age decades from now, since no future president is likely to renew Obama’s ill-fated pledge to close the facility. And even if the Guantánamo detainees are transferred to a U.S. prison, bringing indefinite detention onshore, it is hard to fathom the practice will not be used again to deal with future threats. The bipartisan affirmation of drone use will make those weapons routine for the United States and any other government with a kill list of its own.

A foreign policy centered on killing and countering terrorists poses risks for the global human rights order, and for U.S. security and global standing. Obama acknowledged these dangers not so long ago. In a 2007 article, he wrote that "to build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law." While the president has ended some of these practices, he has endorsed others with equally corrosive effects. By stepping up drone attacks, he has turned angry families in Pakistan, Yemen, and elsewhere into terrorist sympathizers, stoked anti-American sentiment, and set an example that other regimes use to rationalize abusive behavior.

Obama now faces a fateful decision: Is the killing of bin Laden the emblem of a foreign policy in which counterterrorism goals automatically trump human rights? Or will he use his second term to revive his 2008 assertion that America’s "global engagement cannot be defined by what we are against. It must be guided by a clear sense of what we stand for"?

This latter course dictates several steps. First, he should publicly recommit himself to closing Guantánamo without bringing its detainees onshore for indefinite detention. He should transfer the 55 detainees already cleared and press for federal trials of detainees in appropriate cases. (A good starting point would be Shaker Aamer, who has been at Guantánamo for more than 10 years and was first cleared for release to his home country, Britain, by George W. Bush in 2007.)  Second, he should announce that the United States’ use of drones will henceforth conform to international human rights law. This will require unmasking the secrecy that surrounds the program and ensuring accountability. Third, he should install in the White House a top human rights advisor with a broad mandate and access and influence equivalent to what counterterrorism advisor John Brennan has enjoyed. Since the early departure of White House Counsel Gregory Craig, no senior member of the president’s inner circle has pushed for the realization of his human rights promises. U.S. human rights leadership will not be restored without a top, trusted White House official able to go toe-to-toe with the intelligence agencies and the Pentagon.

Some Obama enthusiasts in the human rights community suggest that the president’s apparent indifference to his human rights legacy is a temporary nod to the politics of the day and to American voters who may not prize American human rights credibility. With his reelection behind him, we will soon learn what Obama really stands for.