ACLU Director Anthony Romero expresses his disappointment at Obama’s handling of Guantanamo Bay and American torture policies, and offers an ACLU-approved solution.

Question: How has Obama changed Guantanamo Bay policies?

Anthony Romero: Remarkably little has changed since President Obama took office when it comes to Guantanamo. We were elated when his first three executive orders in the first 24-hours of his presidency said they would shut down Guantanamo within a year, that he would ban torture unequivocally, and he would shut down the secret prisons which are being run by the CIA.

We thought we were off to a pretty good start; it seemed like civil liberties trifecta to us. But frankly, in the last six or seven months that we’ve seen since those first executive orders, there’s been very little substantive difference in the way to which the policies are executed, and even the maneuvering of the Obama administration. They have very much backtracked on those initial promises on shutting down the military commissions unequivocally.

We fear now that we’re in a very different political environment, where people want to believe and have faith in this president. He came in with enormous popularity, with an enormous mandate to get us back on track. He still commands enormous popularity in the public opinion polls, and yet when you look at the substantive policies of this president, and you compare them to those of George Bush, they’re not all that different. The rhetoric certainly much different, the values that he speaks of are newly refined, but the substantive policy outcomes are not that different, and that perhaps is what concerns us the most: that when people have finally let down their guard, and believed that we’re back on track to restore civil liberties, that in fact that we have a new administration that’s now mumbling when it comes to the initial promises they made.

Question: What is our nation’s current policy on torture?

Anthony Romero: Well the president has banned torture under his administration, and he has rejected the enhanced interrogation techniques that are now infamous in the office of legal council memos that the ACLU secured through our litigation under the Freedom of Information Act. So we’re back now to where we were pre-9/11. We don’t torture, we don’t abuse. We follow the Geneva Conventions.

The fact is that there’s still a lot of gray area in what the president has said in “We won’t use very aggressive torture techniques.” We’re not entirely sure about these enhanced interrogation techniques—where he has drawn the line? We don’t fully know. It’s clear to us in some of the discussions we’ve had with the administration that some of these rules regarding the Guantanamo military commissions, that, while they’ve banned to use of evidence gleaned from torture, it’s certainly possible—in fact we expect—they use interrogation techniques or use evidence gleaned from coerced interrogation techniques.

That could be fall a little bit below the torture line. But still would be illegal in the pre-9/11 context. We don’t fully know what’s going on at some other sites. We were saying we’re going to close Guantanamo, but we’re reading even in these recent newspapers about the wanton mess at Bagram. We read about the Chinese not having access to lawyers, awful conditions, refusing to come out of their cells as a way to protest their inhumane treatment. And whenever you have a prison or detention center that is not accessible to the members of the press, or the public advocates like us at the ACLU, that’s a recipe for abuse; what can happen behind close-doors that can’t be penetrated can in fact bleed to the type of abusive techniques that we saw under the Bush administration.

Question: Should we investigate those who may have authorized torture previously?

Anthony Romero: What I think the president fails to understand is in the fact that he always refers to himself as Commander in Chief of the nation. It is that a concern for civil liberties and human rights on the one hand won’t necessarily be at odds with the concern of making sure he enforces the nation’s security as Commander in Chief

We have a president now who is wrongheaded in his unwillingness to look back. The president says that he wishes to look forward, that this is not the time for recriminations; this is not the time for finger pointing, this is not a time for parties and squabbling, but frankly, unless you look back and unless you prosecute the individuals who authorized the torture and abuse, you create a moral hazard in our government.

It means that you can break the law and can get away with it, and so individuals down the chain of command in the Department of Defense, in the CIA who broke the law under President Bush, who are not being prosecuted for what they did and what they knew would happen—there’s impunity in the ranks of the government, and unless you are really willing to prosecute individuals of the highest levels of our government who authorize and enable torture and abuse to happen in our name, you’re going to allow that impudence to exist, and you’re never going to be able to get us back to a place where torture and abuse of detainees is just anathema. You will always have a question in people’s, soldiers, or CIA officer’s minds: “Maybe I can do it; maybe I can get away with it. Maybe this is the best way to protect America.”

Unless you prosecute the individuals who authorized it at the highest levels, you’re going to have that doubt. You’ll going to have the remains of that Bush policy creep in to the Obama administration.

Question: Should prosecution go all the way to Dick Cheney?

Anthony Romero: Absolutely, if not higher; certainly Cheney, certainly Addington, certainly Hugh and Gonzales. We have Dick Cheney still say that we didn’t torture people on his watch; well, that’s obviously not the case. We have the documents to show it from our Freedom of Information Act litigation. There are thousands of photos that Obama refuses to release, that would show, in very explicit, troubling detail what exactly torture looks like. The idea of that we’re still having a debate about whether or not we did or didn’t torture when the facts are clear and unequivocal—to what level could you have cruel, unusual and degrading treatment that doesn’t rise to the level of torture?

Those are troubling questions that are still roiling under the Obama administration, and because we haven’t had a clear, decisive action to break with the past and to prosecute those who broke the law, that doubt and that ambiguity is going to continue.

Question: Given the pressing concerns presented by the recession, why is torture investigation important now?

Anthony Romero: We hear those arguments. We hear these arguments directly from he president himself either in closed-door meetings or in his speeches. The concern that America can’t afford spend time with some of the most fundamental values of the American Republic is really giving us too short shrift.

No one argues that the president has been dealt a very difficult hand. The two wars raging, the health care reform debate which seems to be going off track, the economy collapsing. Perfectly, America is a lot more than just the the financial assets of our nation. America’s greatest assets also have to do with our values. We would not be arguing with that fact if Dick Cheney and Addington and others had gone into Fort Knox, and robbed America of a billion dollars—we would not be talking about whether or not they ought to be prosecuted for those crimes, and yet when they authorized torture and abuse of the highest levels, the fact that we’re willing to look the other way and say; “Well, those assets really don’t count as much as the financial assets,” that’s just not true.

America was founded both on the concern for economic prosperity and taxation without representation and concerns about the American colonies fighting the British crown, but they were also fighting tyranny, they were fighting for justice, they were fighting for due process. The founding documents had much more to do with certain core aspirations and values that we cannot afford to put on the backburner and say, “We don’t have the time or the energy or the luxury to deal with these issues.” Those are as much about our patrimony as anything that we own or might own or might sell, or might transact, or might import, or export. What we have best is our core commitment to those values, which have been severely undercut in the last eight years.

Question: What should the United States do with Guantanamo inmates if the prison is closed?

Anthony Romero: We move them Stateside. Our states and our prisons are perfectly equipped to handle terrorism suspects. We have a number of some very high-level terrorism suspects who are being convicted, who are being held in our nation’s prisons. You would make sure to put the best prosecutors working on those cases. You throw all the evidence you can amass from the FBI, the CIA, the Department of Defense, the Department of State. You put them in front of a legitimate federal court that’s tried and true;, that’s been used in hundreds of cases to prosecute terrorism cases over the last fifteen to twenty years.

The President is now trying to tinker with the Guantanamo Military Commission. If he ships the prisoners on shore, he now wants to “ameliorate,” in their words, some of the worst problems of the Military Commissions Act. The President made it rather clear when he was Candidate Obama—not President Obama—that he would reject the Military Commissions act. Well, tinkering at the edges of the Military Commissions Act doesn’t sound like rejecting the Military Commissions Act. You need to just ship them stateside, prosecute them, throw the book at them, and if you succeed, detain them for whatever period of time is properly determined by a federal judge. If you don’t succeed in a conviction, they have to be released. That’s the legal system.

Recorded on: July 20, 2009