Change We Can Believe In?

Susan N. Herman is the president of the American Civil Liberties Union.

On his second day in office, President Barack H. Obama issued executive orders to end torture and close Guantánamo within a year, signaling a commitment to restoring the rule of law and upholding American values and the Constitution.

Unfortunately, nearly a year and a half later, the administration has not only continued some disreputable Bush-Cheney national-security policies, but has also added new ones. For us at the non-partisan American Civil Liberties Union, this is a continual reminder that no matter who is in office, civil liberties need vigilant protection.

Guantánamo itself may well be closed in the near future, but of course this will be an empty gesture if we just create a "Gitmo North" at the Thomson prison facility in Illinois or anywhere else—or if we continue to buy into the idea that we can engage in indefinite detention without fair hearings.

Some people ask whether terrorists should have rights. But there is no way to tell who is a terrorist and who isn’t without some sort of fair process. Mohammed Jawad, for example, was shipped to Guantánamo at the age of about 16 and held for almost seven years despite the lack of any credible evidence that he had been involved in any form of terrorism. Before turning him over to the Americans, the Afghanis who captured him tortured him, threatened to kill his parents, and got him to sign a confession written in a language he did not speak by affixing his thumb print. There are far too many other examples of unjustified detentions.

The Obama Administration has decided to use military commissions to try some of the Guantánamo detainees and has even suggested that it might reverse Attorney General Eric H. Holder, Jr.’s decision to try the 9/11 suspects in federal criminal courts. Our nation’s criminal justice system is more than capable of trying terrorist suspects (unlike the unproven military commissions). We should not be trying some of the most important terrorism trials in our nation’s history in a make-it-up-as-you-go-along commissions system.

Despite an immense amount of public evidence about the involvement of Bush-era officials in torture—including thousands of pages of documents and photographs secured through ACLU Freedom of Information Act litigation—the Obama Administration has thus far failed to hold a single one of those officials accountable for breaking the law. President Obama has said we should just turn the page, but we cannot move forward until we look back, discover how our highest officials chose a path of torture, and hold them accountable for atrocities committed in the name of the American people.

Victims of extraordinary rendition—the practice of kidnapping and transporting people to countries where they were tortured in secret without even being charged with a crime—have initiated lawsuits challenging well-documented and horrific abuses. But Obama’s Justice Department is arguing the same "state secrets" privilege the Bush Administration employed to have entire cases thrown out. As a result, not a single innocent victim of the torture program has had his day in court. Much of the conduct at issue—like the participation of the Boeing subsidiary Jeppesen DataPlan in the rendition program—has been fully aired in the media. The only place where that conduct is treated as secret is in the United States courts.

Recent reports indicate that the current administration has authorized targeted killing of people—including U.S. citizens—far from any battlefield. Conducting a program like this without any checks and balances, but instead according to secret rules and with no publicly-disclosed limits, invites abuse and a climate of impunity. It is simply not enough for the executive branch to say "trust us" when it comes to putting U.S. citizens and others on kill lists, but that is exactly what the president is doing.

An acquaintance recently asked me to tell her what the ACLU was doing. "But don’t tell me about that Guantánamo stuff," she said. "Why should I care about those people when they aren’t even Americans?" There are many other areas where the ACLU defends the rights of Americans in ways she found compelling. Just take a look at our website and you will find examples like Nick George, the Pomona student who was arrested, handcuffed, detained, and questioned for nearly five hours at the Philadelphia airport because he packed his English-Arabic flash cards to study on the plane back to school; Constance McMillen, the Mississippi student who was not allowed to attend her high school prom with her girlfriend; people who worry that Arizona’s new law will lead to their being stopped and questioned by officers who think they look foreign-born; and thousands of others. But I hope you can answer her question about why we should care about "that Guantánamo stuff," whether you cite the rule of law, the American tradition of leadership in human rights, or just the Golden Rule.

One excellent way to show you care is to join the ACLU—the student group if you’re in school next year, or by giving yourself a graduation gift of a membership. As our motto says, "Because freedom cannot protect itself."