Exclusive: In Wide-ranging Discussion, Executive Director of ACLU Talks on Obama and Torture
When President Obama, in his first days in office, directed the military commissions at Guantanamo Bay to be suspended, pledged to shutter the prison at Guantanamo by the beginning of next year, and closed the Central Intelligence Agency’s secret prison sites around the world, many civil liberties and human rights activists breathed a sigh of relief.
Anthony Romero, the executive director of the American Civil Liberties Union (ACLU), told the New York Times then that these steps “reaffirmed American values and are a ray of light after eight long, dark years.”
But now, over four months into the Obama administration, the president has, in many cases, continued on the Bush Administration’s track on national security policy, making a mockery of his campaign promises of transparency and adhering to the rule of law.
From not pushing for the prosecution of the Bush Administration for war crimes, to shielding the public from seeing more photos of detainee abuse and torture, to attempting to dismiss lawsuits concerning torture and illegal wiretapping, President Obama and Eric Holder’s Justice Dept. have disappointed many of those same civil liberties and human rights activists.
The Indypendent, in an exclusive interview, recently caught up with Romero, who took over as the ACLU’s executive director in September 2001, four days before the 9/11 attacks.
Romero, the first Latino and openly gay director of the ACLU, spoke candidly to the Indypendent in a wide-ranging discussion that touched on torture, the growing evidence that the Bush Administration abused prisoners to illicit false confessions about an link between Iraq and al-Qaeda, the appointment of Judge Sonia Sotomayor to the Supreme Court, and other issues.
Alex Kane: First, give your overall assessment of President Obama’s policies on torture and national security.
Anthony Romero: Well, I think that the president has made a clear break with George Bush. It was remarkable that, when he first took office, his first three executive orders dealt with the closure of the Guantanamo base, the closure of the secret prisons, and unequivocally rejecting the use of torture and abusive interrogation techniques. That was a civil liberties trifecta on day one. It’s troubling, though, because it’s not been all linear, and it’s not been all easy.
Now we hear talks that while the president does indeed intend to close Guantanamo, that he is keen on keeping some form of the military commissions going forward. We think that keeping any form of the military commissions going forward is a huge mistake. They haven’t worked, the rules are rigged, they have preordained outcomes, individuals who have been held often without charge, or without access to lawyers for years, and there’s no way to fix that mess. The president says that he did indeed inherit a mess. He did. There’s no way for him to fix it by tinkering at the edges of the Guantanamo military commissions process.
It’s troubling to hear, especially most recently, that the president is also considering the need for what he calls a “preventive detention regime,” that would allow the government, essentially, to hold individuals indefinitely without charge or conviction. That just doesn’t happen in America. In the America we know, you can only hold someone or detain someone if you can show that they are guilty of criminal conduct, and not some vague or amorphous sense of there being a threat to national security.
Those, for me, would be among the places I have been most concerned and troubled. The president has tried, in some instances, to release documents that clearly show the full extent of the abuse and torture that happened, especially the release of the Office of Legal Council memos that he authorized almost a month ago. Then, he’s taken the opposite track on the release of certain photographs, which he says would jeopardize national security, and he endeavors to keep them secret from the press and the public and the American people.
So, it’s certainly a welcome change. There’s no president who could not have improved civil liberties following George Bush. And President Obama is earnest in his desire for the rule of law, and committed to it. His whole life as a constitutional law scholar. But, the trappings of the office of the executive branch mean that, once power is often accrued, subsequent presidents are very loath to give up that power. Unfortunately, that seems to be a little bit of the situation in which we now find ourselves.
AK: I know you can’t talk about the specifics of this, but were you at the meeting at the White House in mid-May with President Obama and other human rights groups, and if so, what was your take on the meeting?
AR: Yeah, there were a number of us who were at the meeting, and about four different groups and a number of academics. We met in the cabinet room, and we agreed to keep the meeting off the record, so we really can’t discuss the specifics of what was discussed there or what we said to one another.
I was encouraged by the fact that we were brought in to confer with the president and with his top advisers. That was a welcome change. What was a bit unsettling was the fact that the mistakes of the Bush administration, I believe the Obama administration is poised to repeat. It was what I was mentioning before, about continuing with the military commissions process…the “preventive detention regime”. Those would be enormous mistakes. And we heard the president’s plans to go forward in that direction the following day when he gave his speech at the National Security Archives.
And it means for us that we have to find a way to work as much as we can with the new White House, the executive branch and Congress, and then our job at the end of the day is to hold all presidents’ feet to the fire, which is what we would do when we certainly disagree with any sitting president.
So it was a welcome and refreshing change, about having access and being listened to, of having a president who is so steeply knowledgeable about these issues, but it was a bit frustrating to see that change is not always as linear or as quick as we would like it to be.
AK: What are your thoughts about the growing evidence that, in the run up to the war in Iraq, the Bush Administration tortured prisoners to get a false confession about an Iraq-al-Qaeda link? Do you think this enhances the case for prosecutions running up to the highest chain of command, including President Bush himself?
AR: Yes. This definitely raises the specter of the need for high-level prosecutions and efforts to ensure accountability. And frankly I think this is one place where the president is flat out wrong. When he says, “we don’t want to look back, we want to look forward,” well, the only way to move forward is by studying the past and making sure we don’t have those mistakes repeated in any other administration.
I firmly believe that President Obama will never authorize torture. But we don’t know who is going to occupy the White House after President Obama. And the only way to make sure that no government official or president feels that he’s above the law is to prosecute those who broke the law. And it is as much about making sure we don’t continue with the violations of law that George Bush established as much as it is about holding those individuals accountable for the egregious violations of law that happened under their watch. And frankly, I’ve been quite troubled by the reticence from Eric Holder’s Justice Dept. He is the country’s highest-ranking law enforcement official. He has both the charge and the latitude to bring high-level prosecutions. He doesn’t need, nor should he seek, his boss’s acquiescence. It is the only way to ensure that these laws are never violated again.
What should guarantee us, if for instance, Mr. Cheney runs for office in four years time and were to succeed, what is to ensure us that those same violations of law not reoccur? The only way to ensure that and to have a deterrence of government officials breaking the law is by prosecuting those who did so. And that’s one of our top priorities right now at the ACLU, the need for this level of accountability and prosecution.
AK: Do you guys think the Justice Dept. should do it, or an independent prosecutor?
AR: Well, I think the Justice Dept. should appoint a special council with all the subpoena powers that it could to get to the heart of the matter. I personally don’t believe that kind of a bi-partisan, blue-ribbon commission is going to get us to the heart of the matter. That these are both sensitive issues that require people to have the subpoena power, and the ability to require testimony before Congress, and then to push the envelope as aggressively as they can.
Commissions are often formed of notable individuals from across the political spectrum. They blur the edges. There’s no hard lines that come out of those types of discussions. And frankly what we need is a cold, tough, hard look at who knew what when, and who authorized what conduct, knowing it was a violation of the law. The only way to get to the bottom of that is having someone independently charged by the Attorney General to really get to the heart of the matter.
AK: You mentioned that you believe President Obama would never authorize torture, but the fact remains that when President Obama signed the executive order banning coercive techniques, he also left somewhat of a loophole, saying that in certain circumstances, if the president ordered it, that he could. And David Axelrod, maybe a week ago, kind of skirted the issue, but what about that?
AR: I think you’re exactly right. I think the language of the executive orders was a good first start. It’s not, by no means, the final chapter in this book. The president’s executive orders left enough wiggle room that had a number of us who were lawyers and read the language of these executive orders scratching our head, about whether or not they were leaving the door just open, large enough open, to slip in if they needed to.
And frankly, when the president says, in his recent speech, the National Archive speech, that he’s going to ban the use of evidence gleaned from torture, that does not mean, in the context of the Guantanamo military commissions that he’s going to ban the use of coerced evidence. Especially when the context is that they are likely to allow the use of hearsay evidence that would glean from an informant under coercion. The person who is on the opposite side of that evidence may not have the ability to confront the evidence.
So, there are a number of loopholes, and even though we’ve made progress, is by no means, as much of a rejection of the policies of the past. And that’s why I’ve been saying consistently that, even though we have a very different president with a very different value system, with a knowledge of these issues and a background in constitutional law, that if he continues down the path of retaining some of the same policies of George Bush, the policies become his own. And they then become the Bush-Obama doctrine, and not just the Bush policies. While that may seem to be a little bit harsh to a number of people in the public and in the White House, and for supporters of Obama, the fact is that once he tries to put his own imprimatur on these same set of policies, they are his, and that’s his legacy. Unfortunately, I think that if he goes down that path, he’s going to find himself dragged through a partisan squabble in Congress, he’s going to be dragged to the courts certainly for years, there won’t be justice rendered in any significant sense of the word, and we’ll find ourselves in the same legal morass that George Bush found himself in because of the folly of trying to gerry rig a new set of rules and a new system, to a long-standing problem.
AK: On that, if Obama continues down this same path, if he doesn’t press for prosecutions, does that mean he’s complicit in war crimes committed by the Bush administration?
AR: Well, complicit is too strong a word. It certainly raises the question about where one’s allegiances are. Is it to the oath of office, is it to the American people that expect you to uphold the law, or is it a concern for one’s predecessors or the stature of the office? Frankly, I think the two coincide. The way to resurrect the stature of the United States, and to regain the moral high ground, and to show the world community that no one, including the president, is above the law, is by making sure you investigate and prosecute any and all crimes. And that, ultimately I think, whether it’s something the president himself changes his mind and owns up to, or whether he’s forced to deal with that in future years, will be something that history will tell us.
Frankly, Congress also has an oversight role, and it might be that the president, and the president’s men and women at the White House, get dragged behind the wheels of Congress’ chariot by looking into and investigating the crimes. And I think that it would be far better for the new administration and for the Holder Justice Dept. to grab the bull by the horns and get in front of it, rather than caught riding behind it. But, we’ll see how it plays out.
The one thing I’m sure of is that in America, everything comes out. It’s impossible to keep anything secret forever. It may take a year, it may take five years, it may take ten years, but we’re going to know the full extent of the violations of law and the violations of human rights that happened in the Bush-Cheney years. And then, as future generations of Americans reflect on what we will know to be the full story of what happened, everyone will ask themselves, “Well, why didn’t Obama and Holder do something about it? Why didn’t they investigate? Why didn’t they really take affirmative, pro-active steps?” And it’s that legacy of it coming out inevitably, and not taking it as seriously as everyone would want them to, that might be the shadow that overhangs this president. We’ll see.
AK: Last question on this sort of topic, but I think it’s been, in a way comical—although it’s not really comical—but, comical that the Republicans, in trying to deflect attention away from torture, that they targeted Nancy Pelosi about her knowledge. But, the fact remains that, it seems like, this is kind of news reports dating back a couple of years, that the Democrats were aware somewhat of what’s been going on. What’s your take on that?
AR: Sure. I say a pox on both their houses. The Democrats have as much of the blame, for their reticence, their complicity, of being cudgeled into submission by the Bush White House. And, I think it is instructive that this difficulty Nancy Pelosi finds herself in, and she can’t find a way to unstick the same stigma of George Bush that’s been pressed onto her. Frankly, that’s why a clean and decisive break from the past is what’s necessary. The Democrats were missing in action for many years, and they were not raising the hard questions, nor were they leading the charge, and I think it’s not without some merit that the Republicans called some of the Democratic leadership of being hypocritical, that they were quiet and supportive in the beginning, and when the political winds began to change, they began to climb back on their horses and ride into the sunset. I think that is a very instructive lesson for political leadership. That one cannot afford to be quiet, even in the face of very difficult and daunting circumstances. So, certainly it’s the aftermath of 9/11, but if you remain quiet, you get damned with the same fate that the apologists have, and how that plays out.
I actually think that Pelosi, the history lesson, is one that is going to be relevant for President Obama in five or ten years. Because the same questions of well, “how could you remain quiet, and why didn’t you do anything about it,” once we know the full extent of the torture that went on, those same questions asked of Pelosi might very well be asked of the president in four or five years.
AK: Switching gears a little bit, I read a blog post by you, kind of applauding the appointment of Judge Sonia Sotomayor to the Supreme Court. But, little has been said about where she stands on the expansion of presidential powers, and the doctrine of the unitary executive. Do you have any idea where she stands on those?
AR: Yeah, I mean first I should be clear that the blog was really a personal reflection of pride and support of Judge Sotomayor. I’ve had a chance to know her a little bit in my professional and personal life, and the ACLU doesn’t take a position supporting or opposing any candidate, any Supreme Court nominee. We look at the record, and we put the record out. On our website, there’s a report right now on her history. But we don’t take an official position either supporting or opposing a Supreme Court nominee.
I think that’s what the confirmation hearings will be all about. And I think that’s why I think it’s important for not just Republicans but for Democrats to have a very vigorous questioning about some of the most vexing constitutional issues that are on the horizon. Certainly, the idea of the role of the unitary executive, and what limits you place on that, I think will be important. If I remember correctly, she was very much involved in one of the cases involving a Canadian citizen who was rendered overseas and then tortured, the case of Mr. Arar. She was quite vigorous in her questioning of the government lawyers in that case. So if that’s anything of a indication of a foreshadowing of how she might view the role of, or kind of the legitimacy of the unitary executive, I think that harbors well. But I think that’s exactly what we should be getting at in the context of the confirmation hearings.
AK: Are you confident that she will be questioned on that?
AR: I think there will be any and all questions that come out. I think she will be questioned on that for sure, that’s one of the major issues in front of us as a democracy. I think questions revolving around on reproductive freedom and her position on criminal justice issues will be raised. I think her position on the death penalty, I think is likely to get raised. These are all the right questions. These are the big philosophical, legal questions confronting us as a nation, and I think what we shouldn’t really stand for is this little song-and-dance where judges don’t really tell you what they think, and then you have no way to gauge how they’ll come out on certain key cases.
I mean, look at Roberts and Alito. Throughout the whole process, they kept saying they believe in stare decisis, of the importance of precedent. You can’t find two Supreme Court justices who would be more aggressive in trying to overturn existing Supreme Court precedent than Justice Roberts and Alito. So, I do think we need a much more frank, open, and direct conversation about the philosophy and approach of all our Supreme Court nominees.
AK: In a couple of cases, like the Binyam Mohammed lawsuit against Jeppesen, a subsidiary of Boeing, and an Islamic foundation lawsuit against the NSA spying program, the Obama Justice Dept. has invoked the “state secrets” privilege, basically echoing the Bush administration. And I know you have criticized this as well, but comments?
AR: Yeah, those were probably the early indications of what was going to be trouble on the horizon. It was literally a week after Attorney General Holder took office that we were on the 9th Circuit on the Jeppesen Data Plan case, the one that you referenced, that we brought against a Boeing subsidiary for providing the essential flight services for individuals who were rendered overseas and tortured. And we were thunderstruck when the Justice Dept. lawyer, under the new Attorney General, got up in court and mouthed the exact same words of the Bush Justice Dept. And we howled, and properly so. We said, “this is not change, this is more of the same.” This effort to obfuscate a government policy and government action because of their embarrassing or illegal nature is inappropriate under the use of the “state secrets” doctrine. The “state secrets” doctrine is not an immunity doctrine, it’s an evidentiary privilege that applies very surgically, narrowly to pieces of evidence that might jeopardize national security, but it can’t be used as a wholesale way to immunize government officials from litigation, especially at the motion to dismiss level, at the beginning of a lawsuit.
And I think it is one of the major challenges that once government officials, once individuals go from being candidates to government officials, their interests change. They become interested in the power of the office and they become interested in making sure that the government is not quote, “embarrassed.” While they may be running on a campaign in the beginning that is very clearly hard-hitting, that fundamentally changes once they take their office. And putting their feet to the fire, and making sure that they don’t cop out of some very important commitments that have to be reflected in policy changes is a big part of what we do. And people sometimes think we’re crotchety, and they sometimes say well, “how can you be critical of both President Bush and President Obama,” and that’s precisely what the ACLU does do. We are the countervailing force to the use and abuse of executive power, regardless of who is president. If we let our guard down when we think we might like a president more than another one, that’s precisely the time when the greatest damage can occur. And if you look at the history of President Clinton, some of the worst things that happened for civil liberties in the last twenty years happened under Clinton’s watch. Actually, the precursor to the Patriot Act was a trilogy of laws that President Clinton enacted in 1996, when the Oklahoma City bombing happened. That is the precursor to what we saw in 2001. Whenever we don’t hold our so-called allies as much to the fire as we do our so-called enemies, that’s when we do ourselves a disservice.
AK: The Obama administration’s reversal on releasing pictures of abuse and torture in prisons in Iraq infuriated many, and reports have come out contradicting the Pentagon’s claim that the photos don’t show sexual abuse, rape, and sodomy, and Naomi Wolf has basically called the Bush-Cheney policies of torture a global sex trafficking ring. And also, according to Glenn Greenwald, who wrote an extensive piece today on this, Obama’s now throwing his support behind a new bill co-sponsored by Senators Graham and Lieberman that is aimed at preventing the release of detainee abuse photos. What is your take on this issue?
AR: Look, no one wants to see the photos. They’re going to be very disturbing, and they should be disturbing. And no one has an interest in seeing the humiliation or degradation or the rape or the violence perpetrated against another human being. The photos, however, are important to making sure that we have the political will to prosecute people for a crime.
And we have Vice President Cheney flying around the country, saying that “we do not torture,” and we know that is not the case. We know that’s totally a load of bull. The photos will finally and clearly and convincingly show the American public that under the Bush-Cheney watch, we did in fact torture. And then the question comes out, “what did we do about it?” The fact is we have not prosecuted all the individuals responsible for the torture and abuse. President Obama is flatly wrong when he says, “we have conducted investigations and people have been punished.” That is not true. What we are told is that there are as many as 2,000 photos in place about torture and abuse of individuals we had in custody. The sheer volume of 2,000 photos show you that it wasn’t just a few “rogue soldiers,” not just a “few bad apples.” This is something that happened systemically, across the theaters of war, and down the chain of command. And that’s why we need as much of the vigor and interest in prosecuting those crimes as we can muster.
And frankly, I don’t know what’s in these photographs. I have not seen them. But what I hear from people who have seen them, and from talking to the press and with me privately, I think the American people need to make up their own minds about what actually happened. Then we need to hold our government’s feet to the fire, making sure that those crimes that will be horrifying to see with our very own eyes, have indeed been fully and completely prosecuted, because that has not happened.
I should probably take one more question, and then I’m going to run.
AK: Last question: Do you have any hope that pressure from the ACLU, the Center for Constitutional Rights, Human Rights Watch, all of these organizations that are interested in holding people accountable for war crimes, and crimes against humanity, do you have any hope that pressure from you guys will eventually force and change the Obama administration into upholding the rule of law.
AR: Yes. It’s inevitable. I mean I do believe that this is something that, unless they deal with it soon, they’re going to deal with it later. And these pictures, and the full extent of the criminal conduct will come out. And unless they really take it on right away, they’re going to find themselves dragged through this mud for years to come.
Look at what’s happened over the last several months. The president has been trying to deal with the economic meltdown, health care reform and the environment, and trying to conduct two wars, and look at how much the controversy of torture and abuse has roiled in his early days as president. If he doesn’t get out in front of it, it’s going to continue to roil on his watch for years to come. So it would be much better to bite the bullet, pull the band-aid off, grit your teeth, and follow the crimes wherever they lead you, and prosecute them as extensively and aggressively as you’re charged to do under the oath of office. That, I’m confident that whether we get to it now, or whether we get to it later, we’re going to definitely get to it. America is not the type of country that skirts violations of the law under the rug forever. It took us forty some-odd years to get reparations for Japanese-Americans, victims of the internment camps, but we got it. So whether it’s in a year, or twenty, or forty years, we’re pretty sure that justice is going to be done, and that groups like the Center for Constitutional Rights and Human Rights Watch and the ACLU and Amnesty International, we don’t lose sight of the ball, even when we might not be able to catch it right away. We’re going to keep pushing.
AK: Okay, Anthony Romero, I appreciate your time, and thanks a lot for giving me time to talk to you.
AR: You bet, it was my pleasure.