A Continuation of Bush Policies by the Obama Administration

During the painfully long, intense campaign process, President Barack Obama told us he would be a different kind of leader than his predecessor. And in many ways, he has been more responsible, open and inclusive in his 30 days of office than George W. Bush was in eight years. But he has also been, just one month in, a bitter disappointment.

Last Friday, the Justice Department embraced a key policy of the Bush team, telling a federal judge that 600 military detainees in Afghanistan have no legal right to challenge their imprisonment at the United States Air Force base in Bagram, Afghanistan.

The Bush administration told Americans the “War on Terror” was a different kind of war, where "unlawful enemy combatants" could be picked up on the battlefield, and then have no right to contest their detention. The Bush administration argued the federal courts had no jurisdiction to hear cases because the prisoners were non-citizens held in the course of military operations outside the territory of the United States.

The world has watched this habeas corpus lawsuit, which was filed on behalf of several prisons detained indefinitely for years without trial. The detainees argue that they are not enemy combatants. They ask for a judge to review the evidence against them and order the military to release them.

A controversial legal issue throughout the Bush years was whether a civilian federal judge could review decisions by the executive branch to hold terrorism suspects as enemy combatants indefinitely. President Bush’s legal team argued the Constitution granted no authority to federal judges to hear challenges by detainees being held at the military prison at Guantánamo Bay, Cuba and elsewhere. But this argument was rejected by the Supreme Court in 2004 and 2006, based on the idea that the prisons were on U.S. soil for constitutional purposes due to their unique legal history and circumstances

Due to the rhetoric of change and the fact a constitutional law professor had taken the highest office in the United States, there was the hopeful believe the Obama team would make major changes to this nebulous policy. Instead, the administration has decided to continue the detention policies it inherited.

While Obama has ordered strict adherence to anti-torture rules, the closing of Guantánamo prison within a year and a review of whether conditions at these detention bases meet the standards of humane treatment required by the Geneva Conventions, terrorism suspects captured by American authorities are still being sent to Bagram where they can expect indefinite detention without notice of the charges against them. This is not the “change we can believe in”. Obama’s decision to stick with the Bush policy on detainees is a resounding disappointment for human rights and the rule of law.