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A New Administration, and A New Day for Human Rights

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A New Administration, and A New Day for Human Rights

President-elect Barack Obama

One of the first tasks of the Obama Administration – to restore our national honor and reclaim our national values – is beginning to take visible shape.

Based on news reports of alleged statements by Transition Team staff, it appears that the new Administration can and likely will take the following steps immediately upon assuming office or not long after:


Announce the closing of the prison at Guantanamo , where prolonged detentions without trial -- exclusively of foreign nationals, not Americans -- have become a symbol of our government's disregard for the rule of law and for the sensibilities of our allies. 


Stop the military commission trials at Guantanamo , which short circuit fair trial procedures and which are also inflicted only on foreigners, not Americans,


Issue an executive order that will prohibit torture and cruel, inhuman and degrading treatment by all agencies of the US government,


Close for good the secret CIA prisons overseas where terrorism suspects have been “disappeared” and tortured, and


Halt the practice of “extraordinary rendition,” by which the United States sends prisoners to others countries for interrogation by security forces known to engage in torture.


On the other hand, there remain a number of loose ends.  Among them are the following (among others):


First is actually closing Guantanamo .  President-elect Obama says this may take a year or so and poses serious complications.  He is right.  Some prisoners can be fobbed off on other countries.  Some can be prosecuted in federal criminal trials or in courts-martial.  But very dangerous suspects were tortured.  Their confessions, and statements against them by other prisoners who were tortured, cannot be used in court.  Finding a way to bail out of the mess created by the Bush Administration's mishandling of their cases will not be easy.


Second is secrecy.  Civil suits brought by victims of extraordinary rendition and other abuses have to date been stymied by government claims of state secrets.  Some of those cases are now on appeal.  What position will the lawyers for the new Administration take?


Third is criminal prosecutions.  Some human rights groups clamor for criminal prosecutions of Bush Administration officials who authorized torture and other abuses.  While President-elect Obama does not rule out prosecutions in clear cases, he is not eager to cast a wide net.  He is right.  Prosecutions would be polarizing along partisan lines and difficult in the best of circumstances.  Imagine trying to convince an American jury to punish an official who authorized the water boarding of one of the planners of the 9/11 attacks on the World Trade Center .


In the real world, prosecutions of senior officials would be even more difficult.  Most relied on legal opinions from the Office of Legal Counsel of the Justice Department – the infamous John Woo memos – that gave them the green light.  While Woo's legal opinions were so biased and incompetent that the Justice Department later withdrew them, officials nonetheless relied on them. 


Fourth is a broad investigation and report on the full range of abuses by the Bush Administration.  President elect Obama signals that he wants to look forward, not back, and to bring the country together to work on our common economic, security and other challenges.  He is right.


But Professor Jack Balkin of Yale Law School argues in the New York Times that we need, not a truth and reconciliation commission as in South Africa, but a “truth and repudiation” commission to expose all that was done and to make sure that we do not repeat it.  He is right, too.


How to reconcile the two positions?  The answer is that Congress should get the new President off the hook by taking on the task itself.  Whether by a regular committee investigation, or by a special committee such as the one chaired 35 years ago by Senator Frank Church, which reported on FBI and CIA abuses, or by setting up a bipartisan blue ribbon panel such as the one that investigated the pre-9/11 intelligence agency failures, Congress should ensure that the American people learn fully what happened, and that our government soundly repudiates such excesses.


And while Congress does that, the new Administration should keep its distance. 


In short, the country needs to look both forward and back.  The Administration will be most successful if it looks mostly forward.  Meanwhile the Congress – and in some cases the courts – can and should look back.  We cannot repudiate that which we do not know.  Yes, much is already known – witness the graphic videos of Abu Ghraib.  Yet we do not know how much remains hidden, and will stay that way, without an inquiry that is both broad and deep.  Americans have both the right and the duty to know the truth about their history.

The views expressed by this commentary do not necessarily reflect the views of Notre Dame Law School , the Center for Civil and Human Rights, Chicago Public Radio or Worldview.  

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