End of the Obama Era

Official portrait of Barack Obama
Official portrait of Barack Obama, by Pete Souza, The Obama-Biden Transition Project [CC BY 3.0, via Wikimedia Commons”
At 11:47a Eastern, Donald Trump became the 45th President of the United States.  As that happened, Barack Obama joined the ex-President’s club, leaving behind a legacy that will probably take a little time to truly comprehend.  Just as Bill Clinton benefited from slow-developing policies enacted by George H.W. Bush, it can take years before a President’s actions are truly understood.

I’m not ashamed–why would I be?–to admit that I voted for Obama in 2008 based on his promises to clean up the messes left behind by George W. Bush. And there were certainly messes, not the least of which–but probably the most obvious–was the near-collapse of the economy.  The problems in America, however, were so much deeper.  George W. Bush had presided over an administration which had flouted international human rights norms through its policies of extraordinary renditions, operation of so-called Black Sites and Gitmo, torture, and specious spying on Americans.  Obama ran on a platform that promised to end these abuses, promised to provide greater transparency, and promised to curtail the abuses of the Bush Administration.

So, how’d Obama do?

Obama’s Guantanamo Bay Policy

Gitmo Detainee
Gitmo Detainee, sourced from Flickr.com under a CC 2.0 license.

Gitmo Detainees, sourced from Flickr.com under a CC 2.0 license.

The housing of “enemy combatants” at Guantanamo Bay in Cuba for indefinite periods, and without formal charges or proceedings, was one of the biggest rallying cries for liberals who believed in Constitutional protections for all people accused of doing wrong.  It was also the fourth Executive Order (E.O. 13492) issued by Obama, following an Order on Presidential Records (E.O. 13489), and an Order on Ethics Commitments by Executive Branch Personnel (E.O. 13490).  (Aside: when I started this post this morning, Whitehouse.gov still had links to these Executive Orders; now, Whitehouse.gov has a splash page for the Trump administration. Things move fast, I guess.)

I was ecstatic when the Order was issued, because Section 3 of the Order quite clearly stated: “The detention facilities at Guantanamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order.”  Furthermore, it also quite clearly stated that any individuals who remained at Guantanamo after that 1-year deadline “shall be released to their home country, released, transferred to a third country, or transferred to another United States detention facility.”  Clearly, this stain on American foreign policy would soon be over.

Not so fast, though.

As of this morning, there were still 41 individuals being housed at Guantanamo.  And admittedly, Congress didn’t help matters when it passed legislation in 2010 forbidding using funds to transfer such individuals into the United States (even for trial); forbidding using funds to build facilities in the United States for the purpose of housing such individuals; and forbidding the transfer of any detainee to another country unless the Secretary of Defense signs off on the safety of doing so.  Because these restrictions were included as part of a larger spending bill, Obama apparently found it not worth spending the political capital on a veto.

Since then, closure has been a quiet afterthought, garnering scant attention in public discourse.  While the population at Guantanamo is admittedly about 5% of what it used to be, it is still disheartening that political forces prevented the entire closure.

Obama’s Pledge to Increase Transparency in Government

Obama ran on a pledge to increase transparency, in reaction to the perceived secretive nature of the George W. Bush presidency.  Indeed, On January 21, 2009, one of Obama’s first acts as President was to issue a memorandum to the heads of Executive Branch departments and agencies.  This memorandum was published in the Federal Register, and it quite clearly stated that the Obama Administration was “committed to creating an unprecedented level of openness in Government.”

How’s that going?

Ask Edward Snowden. Or the other seven individuals prosecuted by the Obama Administration under the Espionage Act, more than all previous Presidents combined–Thomas Drake, Shamai Leibowitz, Chelsea Manning (who was recently granted clemency by Obama), Stephen Kim, Jeffrey Sterling, John Kiriakou, and James Hitselberger. (Source: shadowproof.com, which has internal sourcing.)  For an administration to claim it wants greater transparency, and even issued Policy Directive 19 to supposedly protect whistleblowers with access to classified information, prosecuting those who disclosed such information becomes a thorny thicket. Especially when at least some of that information involves items of legitimate national interest, such as domestic surveillance.

Warrantless Domestic Spying

With the advent of the internet and digital telephones, it didn’t take much supposition to assume that everything being written or said on a telecommunications device could theoretically be intercepted and read by government agencies, the disclosure by Mark Klein that AT&T was assisting the NSA in slurping up domestic communications was disappointing confirmation.

Obama criticized the practice, and pledged to reform things.

The jury is still out on this pledge. As the Snowden disclosures showed, warrantless surveillance continued under the Obama administration.  There might be more theoretical oversight now, but nonetheless, one of Obama’s last acts in office was to issue new rules to Executive Order 12333 (issued under President Reagan).  These new rules allow the NSA to share raw streams of data with other law enforcement agencies.  While Executive Orders can be overturned by subsequent administrations, there’s little to suggest that President Trump would alter this policy.

Criminal Justice Reform

When Obama ran in 2008, he pledged to initiate a review of mandatory minimum criminal sentences. Mandatory minimum sentences are an especially pernicious feature of a number of federal criminal statutes. For example, a person convicted of possessing with the intent to distribute 1,000 kilograms or more of marijuana is looking at a minimum of 10 years in federal custody. (21 U.S.C. § 841(b)(1)(A)(vii)).  While some people in society might not have a huge problem with a person toting more than a ton of weed around getting ten years in custody, that same ambivalence is challenged when the exact same sentence is applied to a person with 50 grams (less than two ounces) of meth.

Were there reforms?

Well, a mandatory review was legislated in a defense authorization bill in 2010.  And some limited sentencing reform occurred under Obama. For example, the sentencing guidelines were retabulated to decrease some of the disparities between crack and powder cocaine. However, mandatory minimums still persist.

Ending Torture and Extraordinary Rendition

Along with issuing an Executive 13492 (attempting to close Guantanamo), Obama also issued Executive Order 13491, which mandated the end of torture and the humane treatment of prisoners.  It also nullified the guidance language proferred under the George W. Bush Administration.

Public Domain, Link

Extraordinary rendition was the policy whereby individuals in other countries would be kidnapped and taken to other countries or locations for the purpose of interrogation and, sometimes, torture. Obama ran on a pledge to end the practice, but it isn’t entirely clear that it really has ended.  In 2009, an Italian court convicted CIA agents of kidnapping an influential mullah in 2003, and last April, one of those agents lost her Portuguese challenges to her extradition to Italy.

By all accounts, though, they seem to be a kept promises, at least on paper, and there’s a question about whether it’s possible to know that rendition (for torture) is actually over.  Nonetheless, ending torture, and making rendition no longer official policy are very good things.

Could be a Lot Worse

At the end of the day, Obama did some very good things. Like all people, he was flawed, and he failed to keep many of his promises. Sometimes that was his fault, and other times, it was because he was stymied by a Congress hell-bent on obstructing him.  At all times, though, he handled himself with a level of dignity and class that we are going to sorely miss in the coming years, and I would absolutely vote for him again, even given the promises that weren’t fully met.