Treatment of Terrorist Suspects:
Obama & His Critics

By Alan Shapiro

To the Teacher:

On May 21, 2009, President Obama delivered a major speech in which he discussed controversial anti-terrorist policies-prisoner interrogations, closing Guantanamo, the disposition of its prisoners, the release or withholding of classified information and the state secrets privilege. He stated his opposition to some Bush administration policies and either modified or accepted others. The issues raised go to the heart of what the president called our "abiding confidence in the rule of law."

The three student readings below include excerpts from the president's speech followed by critical comments from multiple perspectives, including former Vice President Dick Cheney, General David Petraeus, and leaders of civil liberty and human rights groups.

Student Reading 1:
Interrogation techniques & Guantanamo

The new direction and the old

In a major speech on May 21, President Obama emphasized policies he said "represent a new direction from the last eight years."

"After 9/11," he said, "we knew that we had entered a new era-that enemies who did not abide by any law of war would present new challenges…. Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions [too often]…based on fear rather than foresight. We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat [but]…with an abiding confidence in the rule of law and due process; in checks and balances and accountability."

In defense of Bush administration anti-terrorist policies after 9/11, former Vice President Cheney also delivered a speech on May 21. "Everyone expected a follow-on attack," he said, "and it was our job to stop it. We didn't know what was coming next …And foremost on our minds was the prospect of the very worst coming to pass: a 9/11 with weapons of mass destruction."

Interrogation techniques

President Obama: "I banned the use of so-called enhanced interrogation techniques….I know some have argued that brutal methods like waterboarding were necessary to keep us safe….I categorically reject the assertion that these are the most effective means of interrogation. What's more they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists."

Former Vice President Cheney: "I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful and the right thing to do….Torture was never permitted….Interrogators had authoritative guidance on the line between toughness and torture, and they knew how to stay on the right side of it." The former vice president also said that Obama is unraveling "the very policies that kept our people safe since 9/11."

Civil liberties and human rights groups, such as the American Civil Liberties Union (ACLU), Human Rights Watch and Amnesty International denounced the Bush administration's "enhanced interrogation techniques" as torture and said they violated U.S. law as well as such international agreements as the Geneva Conventions and the UN Convention Against Torture.

Guantanamo

President Obama: "[I ordered] the closing of the prison camp at Guantanamo Bay. For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of military commissions that were in place at Guantanamo succeeded in convicting a grand total of three suspected terrorists…. Meanwhile over 525 detainees were released from Guantanamo…under the previous administration….Indeed the existence of Guantanamo likely created more terrorists around the world than it ever detained."

"Where are we going to send them?" asked Senator John McCain of the Guantanamo prisoners. McCain challenged Obama on Fox News after the newly-inaugurated president announced that he would close the facility within one year. Four months later most Senate Democrats joined Republicans in a 90-6 vote to deny funds for the Guantanamo closing. The House voted similarly. The reason is that the president has yet to announce, said Senator McCain, "a detailed explanation of what will take place the day after Guantanamo is closed."

A particular sticking point for Republicans and Democratic lawmakers is that Guantanamo prisoners might be imprisoned in the U.S. after Guantanamo is closed. These lawmakers reject suggestions that these prisoners could be safely incarcerated on American soil in maximum security prisons like Leavenworth (Kansas) or Florence (Colorado). "Not on my watch," said Senator Pat Roberts (R, Kansas). Democratic and Republican lawmakers in Colorado also instantly said no. Such prisoners, they argue, might escape or would be a prominent target for a terrorist attack. Americans living nearby would rightly feel insecure.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. The president said Americans have "an abiding confidence" in: the rule of law, due process, checks and balances, accountability. Give a written example of each of these, and then discuss.

3. After 9/11, the president said, the Bush administration "made a series of hasty decisions [too often]…based on fear rather than foresight." What examples, if any, does this reading offer? What is your opinion of the president's viewpoint? Why?

4. Do you think that former Vice President Cheney's remarks offer a defense of decisions President Obama regards as "hasty" and "based on fear"? Why or why not?

5. How do Obama and Cheney differ on "enhanced interrogation techniques"? Can you define and cite examples of such techniques? If you can't, how might you learn more about these techniques? What implication is there in Cheney's remark that the new president is eliminating "the very policies that kept our people safe since 9/11"? Do you agree? Why or why not?

6. Why do you think the president says the prison camp at Guantanamo has created more terrorists than it ever held? Do you agree? Why or why not? If you can't offer an opinion, how might you get more information?

Student Reading 2:
"A new legal regime to detain terrorists"

Guantanamo cases

President Obama: "[I ordered] a review of all pending cases at Guantanamo. I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo….We're cleaning up something that is, quite simply, a mess…a flood of legal challenges that my administration is forced to deal with on a constant, almost daily basis….The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican presidents….In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place."

The president said that the 240 people fell into five categories.

1. "We will try those who have violated American criminal laws in federal courts." Those convicted can be held in "highly secure prisons that ensure public safety….Nobody has ever escaped from one of our federal, supermax prisons, which hold hundreds of convicted terrorists."

2. The second category of cases involves "detainees who violate the laws of war and are therefore best tried through military commissions." During his presidential campaign, Obama had criticized the military commission system as a failure contrary to "our values." Now he supports that system, but said it "will require several reforms, including more prisoner freedom to choose their own counsel and not permitting as evidence "statements that have been obtained using cruel, inhuman, or degrading interrogation methods."

3. "The third category of detainees includes those who have been ordered released by the courts." The president said this includes 21 people held at Guantanamo.

4. The fourth category, he said, involves 50 detainees who can be transferred to another country.

5. The fifth category includes detainees "who cannot be prosecuted yet who pose a clear danger to the American people." They cannot be prosecuted because evidence against them is "tainted," perhaps because it is hearsay or been produced by "brutal interrogations." He said that included in this group are "people who've received extensive explosives training at al Qaeda training camps…or otherwise made it clear that they want to kill Americans….We must provide a fair and constitutional system for such people in 'prolonged detention' [in] "a system that involves judicial and congressional oversight."

Civil liberties critics condemned the president's decision for "prolonged detention" of prisoners he said cannot be prosecuted as just another phrase for what President Bush called "indefinite detention." Jameel Jaffer, a lawyer at the American Civil Liberties Union, said, "If they cannot be convicted, then you release them. That's what it means to have a justice system."

In a letter to President Obama, Senator Russ Feingold (D, Wisconsin), an Obama supporter, wrote that he recognized that the president inherited a situation that poses "considerable challenges to prosecution." But, he argued, holding suspects "indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked…. [and] is a hallmark of abusive systems that we have historically criticized around the world….Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not."

Civil liberties and human rights groups also attacked President Obama for supporting continuing indefinite detention, without charge, trial, or even explanation of some 600 prisoners from various countries at Bagram, in Afghanistan. In addition, they reject Obama's support for revised military commission trials for some prisoners. Anthony Romero, executive director of the American Civil Liberties Union (ACLU) called military commissions "an inferior legal system" and labeled it "the Bush-Obama doctrine."

Other critics pointed out that prisoners will still need to choose from a pool of US military lawyers whom many reject and will still be denied the right to see all the evidence against them.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Consider each of Obama's five categories of prisoners. What problems are there in dealing with each category and why?

3. President Bush favored "indefinite detention," while President Obama advocates "prolonged detention." How would you define each? What difference, if any, do you find? If you don't find any difference, how do you explain President Obama's change of wording?

4. What is it about "prolonged detention" and trial by military commission that civil liberties and human rights groups oppose? Does these practices violate the rule of law? If so, how? If not, why not?

Student Reading 3:
Government secrets and the future

"Declassifying more information and embracing more oversight of our actions"

President Obama: "National security requires a delicate balance. On the one hand, our democracy depends on transparency. On the other hand, some information must be protected from public disclosure for the sake of our security-for instance, the movement of our troops…or the information we have about a terrorist organization and its affiliates….

"Now, several weeks ago…I released memos issued by the previous administration's Office of Legal Counsel." (These memos described the "enhanced interrogation techniques" declared legal and employed by the Bush administration.) Obama said, "I released these memos because…the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used."

However President Obama said, "I recently opposed the release of certain photographs that were taken of detainees by US personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and they have been held accountable. There was and is no debate as to whether what is reflected in those photos is wrong." But he decided that releasing them "would inflame anti-American opinion… thereby endangering [US troops] in theaters of war."

Former Vice President Cheney declared that, "Releasing the interrogation memos was flatly contrary to the national security interests of the United States. The harm done only begins with top-secret information now in the hands of terrorists who have just received a lengthy insert for their training manual." He said that the release memos "were carefully redacted to leave out references to what our government learned through the methods in question. Other memos, laying out specific terrorist plots that were averted, apparently were not even considered for release."

General David Petraeus disagreed with Cheney. The release of the memos, he said in an interview with Fox News, took "away from our enemies a tool [with] which …they have beaten us around the head and shoulders in the court of public opinion. When we have taken steps that have violated the Geneva Convention, we rightly have been criticized….I think it is important to again live our values, to live the agreements that we have made in the international justice arena and to practice those."

According to a Senate Armed Services Committee investigatory report, there is evidence that "enhanced interrogation techniques" extracted from the prisoner Ibn al-Shaykh Al-Libi, information that Saddam Hussein had trained al Qaeda terrorists in the use of chemical weapons. Secretary of State Colin Powell used Libi's confession in a speech at the United Nations as a major point in the Bush administration case for invading Iraq.

But, writes Jonathan Schell in The Nation, "Under torture, Libi lied and produced material to buttress an illusion. The illusion was deployed to open the way to a war. The war had a high cost….Power to produce fantasy is not power in the real world, and the Iraq War has been a disaster in the real world." (The Nation, 6/15/09)

The Nation editors and other critics disagreed sharply with Obama's decision not to release photos of prisoner abuse and torture. An editorial in the magazine declared that the president's "logic assumes that anger at the United States is provoked by photos--not the crimes they depict….Have these crimes been fully investigated and the perpetrators held accountable? Have adequate steps been taken to put an end to such abuses?" (6/8/09)

Similarly Anthony Romero of the ACLU argued that "Any outrage related to these photos should be due not to their release but to the very crimes depicted in them. Only by looking squarely in the mirror, acknowledging the crimes of the past and achieving accountability can we move forward and ensure that these atrocities are not repeated." (www.aclu.org, 5/13/09)

"Narrowing our use of state secrets privilege"

President Obama: We are "confronting challenges to what is known as the 'state secrets' privilege, which allows the government to challenge legal cases involving secret programs [and]…is absolutely necessary in some circumstances to protect national security….We must not protect information merely because it reveals the violation of a law or embarrassment to the government."

Critics argue that is exactly what he is doing in a San Francisco lawsuit against Jeppesen Dataplan, a Boeing subsidiary that, according to author and Georgetown University law professor David Cole, "handled flight planning and logistical support for the Central Intelligence Agency's extraordinary rendition program." The company sent terrorist suspects to countries where they faced torture. The Bush administration argued successfully on state secrets grounds for dismissal of the suit. The Obama administration agrees, but the court "unanimously rejected the argument, explaining that it would impermissibly allow the executive branch to immunize 'the CIA and its partners from the demands and limits of the law.'" (The Nation, 5/25/09)

Most agree that the government has the right to invoke the state secrets privilege to prevent certain pieces of evidence from being introduced in a court case. But the Bush administration applied this privilege to prevent entire cases from being heard in court on national security grounds. The Obama administration has begun to do the same thing.

Focusing on the future

President Obama: "We need to focus on the future….Some Americans…want to call for a fuller accounting [of the Bush administration years], perhaps through an independent commission." (Obama said he opposes such a commission.) "There are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws or miscarriages of justice."

Writer Jonathan Schell: "But can the United States really get things right in the future by turning away from the past? Someone brought into court for dealing drugs is not invited to say to the judge, 'Let's not look at the past, let's concentrate on getting the future right'…. Better to look the torture in the face and having looked, to remember, and having remembered, to respond, and having responded, to call those responsible to account so that we never do this again." ("Torture and Truth," The Nation, 6/15/09)

Amnesty International: "Closure and disclosure will not be complete until the US government follows through by ending all unlawful detentions, bringing to justice all those responsible for torture and other serious human rights violations carried out during the Bush administration, and providing real remedies to victims." (www.amnesty.org)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What was in the memos released by the president? If you don't know, how might you find out? Why did Cheney disagree with their release?

3. Why didn't the president release the photos? What do you understand them to show? What is your judgment of the president's decision?

4. Former President Bush and former Vice President Cheney have repeatedly maintained that "enhanced interrogation techniques" produced information that saved the lives of many Americans. Why, according to Cheney, don't they have the evidence to support their view? Why do you suppose that Bush did not release this information while he was president?

5. What is the "state secrets privilege"? What is Obama's view of it?

6. According to Schell, what is wrong with Obama's call for Americans "to focus on the future"? What does he see as the consequences of doing so? What does Amnesty International think the Obama administration must do and why? What is your opinion and why?

Writing

Write a well-developed paper that includes supporting evidence for your views on one of the following subjects:

1. The rule of law and prisoner interrogation
2. The rule of law and prolonged detention
3. The rule of law, human rights and suspected terrorists
4. The rule of law and the Obama administration

Inquiry

One of President Obama's more controversial remarks in his May 21 speech came when he said he opposed "a fuller accounting [of the Bush administration years], perhaps through an independent commission." Civil liberties advocates have called for prosecutions, sanctions, and legislative reforms to address such actions as legal memos from the Justice Department authorizing torture, authorization of torture by the administration's highest officials, and war crimes.

A class project might include independent and small group inquiries guided by questions.

These questions might call for factual answers:

1.What is torture?
2. What is a war crime?
3. What are the Geneva Conventions and what do they say about the treatment of prisoners?

Or they might call for informed opinions:

1. In authorizing "enhanced interrogation techniques," was President Bush authorizing torture in violation of US law and international agreements? Why or why not?
2. Should CIA agents who employed "enhanced interrogation techniques" be prosecuted for war crimes? Why or why not?

Class activities following such inquires might include:

• A mock trial
  
• Preparing a newspaper or magazine reporting on inquiry results
  
• A debate: Resolved, that the terrorist threat after 9/11 justified "enhanced interrogation
  techniques."
  
• Letters to lawmakers
  
• A school assembly featuring speakers representing competing points of view on the
  terrorist threat
  

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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