Obama, Unbound

President Barack Obama’s 2014 early Christmas treat of a promise to quickly normalize relations with Cuba brought a tantalizing taste of something that had scarcely been on the menu since the 2008 campaign: a bold, visionary president unafraid to follow his conscience regardless of political repercussions. This promise, embodied in Obama’s rhetoric of hope, change, and a unifying agenda that would end Washington’s trench warfare, has for most of Obama’s presidency been all but invisible. Sparks of audacity (the opening of secret talks with Iran) have been snuffed out by the cold water of resigned acquiescence (the failure to do much to halt Syria’s murderous civil war). In foreign policy, Obama has seemed perpetually hemmed in, whether by grinding conflicts in Iraq and Afghanistan that don’t end even when Washington says so, by counterterrorism imperatives that are so fiercely protected by the intelligence establishment that the president himself seems forced to accept their necessity, or by adversaries in Moscow, Damascus, and perhaps Tehran who seem immune to diplomacy.

But over the last few months, Obama’s disillusioned supporters at least have some grounds to hope that they had been right to hope way back when. Besides the Cuba rapprochement, Obama has recently enacted immigration reform via executive order and secretly negotiated an emissions reduction pact with China. Obama may be on the verge of vindicating the long-dormant hopes that he might redefine the art of the possible in foreign policy — ironically, at a time when hopes that he could midwife a new day of racial reconciliations have been smothered in Ferguson, Staten Island, and Bedford-Stuyvesant.

But as Obama struggles to bridge newly visible racial divisions at home, his presidential legacy will depend all the more heavily on whether recent glimmers of dauntlessness in international affairs mark the start of a “fourth quarter” guided by conviction and infused with courage. The prospect of an Obama unbound from the imperatives of an upcoming election cycle, the need to please an implacable Congress, and the impulse to avoid errors at all costs is evocative. Obama’s eleventh-hour moves may not alone be enough to determine his own legacy, but they have laid the groundwork for a like-minded successor to build upon — and they make it harder for a Republican to undo these important accomplishments.

But despite these welcome moves, with just two years to go — and with an obstinate Congress and a plateful of problems in the Middle East, Afghanistan, and North Korea — Obama’s options aren’t infinite. His legacy will turn on whether he can conclude landmark accords (a nuclear agreement with Iran, a sweeping trade pact in the Pacific Rim, and a global climate compact), as well as on the long-term fates of Iraq and Afghanistan, where lasting peace remains, at best, uncertain. None of these problems can be achieved by the stroke of a presidential pen. But here are eight things that the president alone can and should make happen mostly on his own. Some are unfulfilled campaign promises; others are policy pledges he made and then seemed to hope the world would forget about; others are just the right thing to do.

1. Closing Guantánamo. Obama’s failure to close the detention facility at Naval Station Guantanamo Bay ranks as his most glaring unfulfilled campaign promise — and the first order he signed upon taking office. Having witnessed the difficulties he has faced in trying to close the prison, no successor in the White House will ever repeat Obama’s vow to clear the facility. While the renewed trickle of detainee repatriations in recent months is heartening, the resignation in December of energetic and politically connected Gitmo czar Clifford Sloan isn’t. Obama’s first step should be to appoint a tireless, seasoned heavyweight to succeed Sloan and anchor this drawn-out relay. The administration says its strategy now is to reduce the number of detainees down so far that the cost of maintaining the facility — some $2.7 million per year per detainee, most of which consists of fixed costs — becomes so exorbitant that Congress chooses to relocate the remaining prisoners not cleared for release to much cheaper maximum-security facilities.

But Guantánamo has never been about the money or any pragmatic calculation about what is best for America’s security, its global standing, or its counterterrorism efforts. It has become an empty symbol of toughness on terror, and one that Obama must not leave in the hands of his successor. Before Defense Secretary-designate Ashton Carter takes office, Obama should make clear that one of his top priorities will be to accelerate the work of the Periodic Review Boards empowered since 2011 to hear the cases of inmates. These boards have heard the cases of just nine men, of whom five of have been cleared for release. Obama should insist that all remaining cases be heard in the next six months, authorizing necessary staffing and resources to make that happen so that the Guantánamo population of 127 shrinks substantially rather than reduces in dribs and drabs. In the end, though, Obama will have to break some major congressional crockery, using his executive authority to bring whatever core group of remaining detainees who cannot be relocated overseas to maximum-security facilities on U.S. shores. The blowback will be ugly. But making good on this promise and finally wiping this deep, lasting stain from America’s reputation will be worth whatever cost pundits and politicians try to extract.

2. Drone oversight. The use of drones in the war on terror is an area where Obama’s policies aren’t forced on him by congressional will or bureaucratic inertia, but by the White House’s own choices. Although Obama can argue plausibly that he hasn’t abused his free hand in authorizing drone strikes, he has nonetheless put in place a system and a set of precedents that will allow his successors to do just that. He has also claimed the right to use secret criteria and evidence to decide who is a member of al Qaeda or its kin, and kill them, with no process for review and no remedy for errors — a freedom that would be terrifying in the hands of the foreign governments that could point to America’s drone program to justify their own executions of enemies.

Under pressure to explain how the secret program can be reconciled with America’s international human rights obligations, Obama has vowed transparency and accountability. It is now time for an unbound president to stand up to the intelligence and military officials blocking reform and make good on his promises. Obama should fulfill his pledge to expand reporting on drone activity, ordering the CIA and Pentagon to declassify the number of people killed or injured in drone strikes, as legislation passed last year by the Senate Intelligence Committee (but revised at the CIA’s behest) would have required. He should also act on professed openness to creating an oversight mechanism — perhaps along the lines of the Foreign Intelligence Surveillance Court — to oversee drone-strike targets. Finally, he should transfer the Yemen drone program to the Pentagon, fulfilling a commitment made 18 months ago to end the CIA’s direct role in the program. Obama has acknowledged the dangerous national security loophole he has created; now he must impose oversight to ensure that his successors do not abuse it.

3. Picking a forceful new U.N. secretary-general. U.N. Secretary-General Ban Ki-moon’s second and final term of office will end in 2016. Ban was selected at the behest of George W. Bush’s administration, which judged him a low-key envoy who would pose little interference to the will of the world’s biggest powers. They were mostly right. Ban has been principled, sincere, and hardworking; his tenure has been largely free of the corruption scandals that dogged his predecessors. Yet, despite a mountain of solid and indispensable work that the organization carries out daily in war zones, refugee camps, and impoverished areas throughout the world, the United Nations has suffered from underfunding, a low profile, and an aura of irrelevance and ineffectuality when it comes to addressing crises ranging from Syria to Sudan to Ebola.

For Ban’s successor, Obama should insist on a dynamic, energetic, and forceful global leader who will build up the U.N. so that it can better confront the challenges of conflict resolution, peacekeeping, humanitarian rescue, and medical aid. While the choice of a secretary-general is not Washington’s alone, the United States will have informal veto power over candidates it thinks are not up to the job. Ban’s successor will have to implement the findings of a high-level panel that he has convened to overhaul U.N. peacekeeping operations, as well as strike new global agreements on development goals and climate change. The new secretary-general needs not only the muscle and mettle to drive these reform efforts, but also the stature to talk straight to dictators and Security Council heavyweights, including Washington. Rather than a U.N. bureaucrat, Obama should insist on a secretary-general with proven political skills, media savvy, and management chops. Getting the major powers to agree on a strong replacement could be a knock-down, drag-out fight, but having five to 10 years of strong leadership in the world’s most powerful multilateral organization will be worth the effort.

4. Slamming the door on torture. Although Obama’s administration began with an executive order banning torture, there is serious risk that it will leave behind a profoundly compromised posture in which the rejection of torture is not an American principle but merely a big-”D” Democratic policy choice, susceptible to reversal under future administrations with different priorities and values. The long-delayed December release of the Senate Intelligence Committee’s torture report was an important step toward transparency, but the ensuing debate saw CIA Director John Brennan mostly defend the actions of the agency, refusing to call the methods “torture” or to vow that they would not be used again. Obama himself declined to opine on the report’s meticulous case that torture as an interrogation technique simply doesn’t work. Meanwhile, defenders of the abusive tactics took to the airwaves and the op-ed pages, dueling the public debate to what felt like a draw.

Obama has made clear that he will not authorize prosecutions called for under international human rights law for those responsible for torture, or even a truth commission-style public accounting. But that must not mean that he now washes his hands of the issue. During his final years in office, Obama should require the Pentagon to update the Army Field Manual on Human Intelligence Collector Operations to repeal its notorious Appendix M, which authorizes sensory deprivation and extreme isolation to break detainees, and prohibit a wider list of torture, including force-feeding and extended sleep deprivation. Obama should also establish policies that all detainee interrogations are video-recorded, amending current Justice Department policies that permit interrogators to skirt recording obligations if the questioning relates to national security.

5. Surveillance reform. In January 2014, after months of revelations from Edward Snowden, Obama promised a raft of reforms to America’s dragnet surveillance programs. He pledged to end the government’s unfettered access to Americans’ phone records. But he left the details of implementation to the attorney general, the national intelligence agencies, and Congress, where, unsurprisingly, progress has stalled. Despite bipartisan support, the USA Freedom Act, which would end the bulk collection of metadata and impose other reforms — including a special advocate to represent the public on privacy matters — died quietly when a cloture vote proposed by then Senate Majority Leader Harry Reid (D-Nev.) failed this past November. In December, the Justice Department yet again sought and obtained authorization for another 90 days of mass telephone spying, nearly a year after Obama promised to do away with the program. To push lawmakers to act, Obama should make clear that he will grant no further renewals, thereby requiring that either reform legislation is passed or the intelligence agencies do without a program that is massively overbroad, but may yield some quantum of useful information.

6. Accept that America’s international human rights duties apply offshore. Whether the topic is surveillance, interrogations, or the circumstances and conditions of detentions, a legalistic but important debate has raged throughout the Obama administration over whether the United States’ obligations under the International Covenant on Civil and Political Rights — the foremost international treaty outlining human rights obligations — apply outside U.S. territory. Early in 2014, Yale University law professor Harold Hongju Koh, the administration’s first State Department legal advisor, released a memo drafted during his time at the State Department in which he argued that the convention imposes obligations on America’s conduct overseas. He urged the administration to reverse its standing position of rejecting any international obligations under the treaty. In accepting Koh’s principle, Washington would take important steps toward eliminating the human rights dead zones in places like Guantánamo, Abu Ghraib prison, and CIA black sites around the world. While the United States has tinkered with its position on duties under the Convention Against Torture, a clear-cut endorsement of Koh’s interpretation would significantly improve Obama’s grades on human rights and put in place a bulwark against a return to the post-9/11 abuses. The place to get maximum bounce from announcing the shift is this spring’s periodic review of the United States’ human rights record before the U.N. Human Rights Council in Geneva.

7. Throw a Hail Mary on Israel-Palestine. Current polling for Israel’s March elections shows a race that’s tightening. But if Prime Minister Benjamin Netanyahu wins again, controlling a new and strengthened coalition government, it will be hard to fathom that will bode progress toward resolution of the Israel-Palestine conflict. If Israelis choose the left-center alliance of Tzipi Livni and Isaac Herzog, however, Obama and Secretary of State John Kerry should give diplomacy another serious try. Lawrence Wright’s account of the 1978 Camp David process in his 2014 book, Thirteen Days in September, makes clear that President Jimmy Carter’s active role in pushing the Egyptian and Israeli leaders together was critical to the conclusion of the peace deal — and at a moment that did not feel remotely auspicious and with leaders whose willingness and ability to deliver were dubious, at best. That Obama’s tenure has coincided exclusively with Netanyahu’s has made efforts to date all but futile. In the meantime, the time, openness, and space for a two-state solution has narrowed. If Netanyahu leaves office, Obama should pounce, trying to set the stage to finish the part of the deal that Carter — unwittingly — tried and failed to seal 37 years ago: a negotiated resolution for the West Bank.

8. Audit the Pentagon. The Pentagon has never been audited, despite having a budget larger than any other federal agency anywhere in the world. Despite a coalition spanning Ralph Nader to Grover Norquist, the agency has resisted the fiscal accountability requirements imposed by law on every other branch of the government. The Defense Department has for years slow-rolled demands to get its books in order, though now claims to be on the verge of readiness to have independent auditors come in to inspect and validate its accounts. But signs of dysfunction, waste, and corruption persist, and a complete audit during the next two years is not guaranteed. Legislation to require the audit has repeatedly been introduced. Obama should make sure the Pentagon’s first full audit happens on his watch, setting a precedent that his successor will be bound to follow and ensuring that the delays and shenanigans don’t survive his administration.

Many of these actions require changes of attitude and approach from the Pentagon and the intelligence agencies — shifts that Obama has been unwilling or unable to effectuate so far. If the unbound Obama of recent months is here to stay, one hopes he has had a solemn discussion with incoming Defense Secretary Ashton Carter so that a stiffening of the president’s spine on key issues isn’t met with an equal and opposing show of force in the Pentagon’s ranks. Another open question is whether CIA Director John Brennan is capable of being part of the solution and whether Obama is ready to part ways with him if he isn’t. He holds the keys in many of the key areas, making it hard to separate him from the lack of progress to date. Ever since the midterm elections, Barack Obama has seemed out to prove that he is no lame duck. If he means what he says, both on the fate of his presidency and on the commitments he has made to remaking key areas of foreign and national security policy, the next two years will give him plenty of opportunity to prove it.

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