After eight years in the political wilderness, civil libertarians didn't have to wait long for President Barack Obama to make them feel at home again. Within just one full day in office, the new President issued a blistering array of orders reversing the policies of George W. Bush on harsh interrogation techniques, on access to government information and on Guantánamo, which he announced he would close. "A giant step forward," hailed Anthony Romero, the executive director of the American Civil Liberties Union (ACLU).
Since then, however, the civil-liberties community has started to wonder if its celebration was premature. Though most still remain cautiously optimistic about the White House's leanings, they have watched with concern as the Obama Administration has filed papers in several court cases suggesting that it will side with the Bush Administration on key issues dealing with terror detainees, warrantless wiretapping and national security secrets. (Read "Taking the Bush Anti-Terror Legacy to Court.")
In three separate ongoing cases, the Obama Justice Department has invoked the so-called "state secrets" privilege, arguing that litigation cannot go forward because it would reveal classified information, a tactic of his predecessor's that Obama had no problem criticizing during the campaign. At the same time, Obama's advisers have declined to answer questions about whether or not they will support legislation, which was once supported by Secretary of State Hillary Clinton and Vice President Joe Biden, to give judges a greater ability to limit the use of the state-secrets privilege as a courtroom tactic. "It's disappointing that the Administration is throwing up the same legal argument," says Caroline Frederickson, the ACLU's top lobbyist.
In another case causing concern within the civil rights world, the Obama Administration has appealed the ruling of Federal District Judge John Bates that three detainees two Yemenis and a Tunisian who are being held at Bagram Air Force Base in Afghanistan have a legal right to challenge their imprisonment. If successful, the argument by Obama's Justice Department attorneys could create a loophole that would allow Obama to transfer prisoners to war zones for indefinite detention, a situation similar to the legal limbo that Bush established for Guantánamo.
Some civil rights lobbyists remain optimistic that the positions Justice Department lawyers have taken are little more than courtroom maneuvers that don't necessarily reflect the policy plans of the Administration. "The lawyers tend to approach every issue in terms of preserving maximum flexibility for the President," explained Elisa Massimino, a lobbyist at Human Rights First, who has been deeply involved in detainee issues. Nonetheless, she says she remains concerned. "Every Administration believes it is immune to the phenomenon of executive power creep," she added.
As it stands, the Obama Administration policies on these matters are still very much a work in progress. Several key policy posts at the Justice Department, including the crucial top position at the Office of Legal Counsel, have yet to be confirmed. The Obama Administration also continues to meet with civil libertarians to discuss these issues. The latest, a private gathering that took place on Friday, involved several civil-liberties groups that had spoken with the Obama transition office about the state-secrets issue late last year.
In the meantime, the White House's public comments on these issues have remained noticeably vague. Last week, before announcing the release of once classified interrogation-technique memos and reaffirming his opposition to prosecuting CIA agents for any harsh methods, Obama issued a statement saying he was determined to "protect information that is classified for purposes of national security." During an appearance at the CIA on Monday, Obama declared, "I have fought to protect the integrity of classified information in the past and I will do so in the future."
Two weeks earlier, however, Attorney General Eric Holder told CBS News that his agency was still reviewing the Bush Administration's use of state secrets as an argument to prevent litigation. He said that the Justice Department was considering reversing the citing of state secrets in one of the three cases that had been reviewed so far, though he did not describe which case. Last Wednesday, during a speech at West Point, Holder strongly condemned the behavior of the Bush Administration. "We must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it provides," he said.
Just what such statements mean in practice may not be known for months. After the initial flurry of executive orders, Obama delegated several areas of Administration policy to task forces for further study, including groups that are examining military detention policy, the closing of Guantánamo and the possibility of creating a new standard for CIA interrogation methods.
At the same time, the Department will soon face an entirely new array of issues that could create tensions with civil libertarians. Three key provisions of the controversial Patriot Act are set to expire at the end of this year, dealing with the government's ability to monitor the movements of so-called "lone wolves" (suspects who are not tied to a particular organization), handle roving wiretaps and obtain records with minimum court supervision. Congressional Democrats are also likely to push for a review of the Federal Bureau of Investigation's use of so-called "national security letters," which allow the bureau to get information from private organizations without court supervision. And there is mounting concern about the National Security Agency's use of its spying powers on Americans. Just last week, the New York Times revealed that the agency had attempted earlier this decade to eavesdrop without a warrant on a member of Congress traveling overseas. Obama, who has frustrated some civil-liberties advocates with his stated preference to focus on the future rather than the past, is also likely to face continuing pressure from Congress to cooperate with investigations of CIA rendition, detention and interrogation programs.
With so many issues coming down the pike, activists say they continue to hold out hope that the recent Obama positions in court cases will prove to be an aberration that has more to do with courtroom maneuvering than governing philosophy. "That is my optimistic view," explains Frederickson of the ACLU. "And it could be proved wrong."