Obama Administration

In President Obama’s Inauguration speech, he promised changes to US counterterrorism policies, placing reform of detention and interrogation policies at the top of the new administration’s to-do list.  But the legacy of the mistreatment of detainees and the failure to follow recognized legal rules proved much more difficult to untangle than many had imagined.  Among other obstacles, many in the Republican party decided from the beginning that they would make opposition to the Obama administration's detainee policies, including the closure of Guantanamo, a high priority, even though President Bush and Senator McCain had also called for the closing of Guantanamo during 2008.  As a result, as of the end of President Obama's first term, the prison at Guantanamo remained open.

Nevertheless, after three years, the Obama administration has:

  • Reconceived the US government objectives as a defeat of al Qa'ida, rather than winning a global war on terror;
  • Affirmed its commitment to using military force in accordance with congressional authorization (but not in the case of the intervention in Libya);
  • Stopped the practice of militarily detaining suspected terrorists seized in the United States;
  • Ended torture and closed the CIA black sites;
  • Stopped the practice of seizing suspected terrorists anywhere in the world and holding them without trial in Guantanamo or Afghanistan;
  • Provided additional due process for detainees held in Guantanamo;
  • Adopted a policy preference for criminal trials over military proceedings, when both are available – a preference which has not always carried the day; 
  • Reformed the military commissions; and
  • Articulated a new legal framework for military detentions that provides for more limited use of such detentions and use more closely aligned with traditional law of war.

There is continuing controversy over providing accountability – both to particular individuals and to the public through disclosure of information or criminal investigations – for the illegal practices of the past administration.  And the administration’s targeted killing operations against al Qa'ida operatives in Yemen as well as enemies in Pakistan have been much criticized. 

January 2009 Executive Orders

Upon assuming the Presidency, President Obama signed four executive orders to review and change the Bush administration’s detentions policies.  He prohibited the CIA as well as the military from using the Bush administration’s “enhanced interrogation techniques” that violated the ban on cruel, inhuman and degrading treatment and torture.  He set up a Task Force to close Guantanamo prison in a year and review each detainee’s case.  He established a separate Task Force to make recommendations about U.S. detention policy going forward.  And he ordered a review of the case of the individual, Ali al-Marri, who was still held without charges in a military prison in the United States.  

In the same week, former administration officials and supporters started a public campaign criticizing Obama’s policies as making us less safe:  

Administration opponents have constantly repeated such criticisms since then.  As of this writing in August 2012, the goals outlined in those Executive Orders have all been achieved, except for closing Guantanamo Bay prison and transferring the prisoners, which was prevented by Congress (See for example Groups’ Letter opposing an amendment that would prevent the use of the funds to support the State Department’s Special Envoy to Guantanamo Bay).

Release of Justice Department Memos on Torture

In April, 2009, over the objections of the CIA, the Obama administration made public the legal memos written by the Bush administration to justify the use of torture.   

See Kate Martin Debates Marc Thiessen on C-Span, Washington Journal, April 2009

A New Paradigm Replaces Bush Administration’s “Global War on Terror”

The Obama administration deliberately stopped the government’s use of the term “Global War on Terror”; instead it speaks more narrowly and precisely about a war against al Qa'ida and its affiliates.  The President outlined a counterterrorism policy that would bring detention policies in line with American values by using criminal law measures when possible and abiding by the laws of war when U.S. military force is used. 

  • Memorandum to the transition team: Recommendations for a new detention policy and for closing the prison at Guantanamo, from CNSS and the Brennan Center, December 2008

Military Detentions in the U.S. Ended

All Suspected Terrorists Seized in the United States are Criminally Prosecuted

When President Obama took office, the government was still holding Ali al-Marri in military detention, who had been transferred into military custody by President Bush in 2003.  Al-Marri’s legal challenge was then before the Supreme Court and the President immediately ordered a review of his case.  In the meantime, former national security officials and counterterrorism experts filed an amicus brief outlining how ending such military imprisonment would make the United States safer.

In March, the Obama administration did transferr al-Marri to civilian custody to stand trial, where he pleaded guilty.  At the request of the Obama Administration, the Supreme Court nullified a 2008 decision by the appeals court that the government had the authority to indefinitely detain legal U.S. residents seized in the U.S. in military custody.

That was the end of the practice of seizing individuals in the United States and holding them in military brigs without trial.  All individuals suspected of terrorist activities and seized in the United States during the years of the Obama administration have been charged and tried in civilian courts.  Unlike the previous administration, the Obama administration also has not claimed the authority to hold individuals who are seized in the United States as “enemy combatants” without trial. 

To the contrary, the administration has rejected calls for military detention and trial of individuals arrested in the United States.  In March 2011, the White House Counterterrorism Director John Brennan gave an unequivocal and strong national security defense of the utility of criminal trials for terrorist suspects.  In September 2011, in the face of ongoing congressional criticism, he reiterated that all suspected terrorists seized in the United States would be put before criminal trials.

Congressional Efforts to Require Domestic Military Detention and Trials and to Prohibit the Use of Criminal Trials for Individuals Seized in the U.S.

As one prominent Bush administration official recognized, the indefinite military detention of suspected terrorists in the United States was a “failed experiment.”  Nevertheless, since the first days of the Obama administration, there has been an unrelenting and organized effort to push for a return to the practice of military detention for individuals seized in the United States.  See Criminal Prosecutions of Suspected Terrorists.  There have been numerous attempts in Congress to prohibit civilian trials for such individuals and/or to establish a new preventive detention regime for individuals seized in the United States.  This effort first gained traction after the failed bombing attempt on Christmas day in 2009 by the Nigerian national working for al Qa'ida in the Arabian Peninsula (AQAP).  For more information, see:

These efforts – unlike the restrictions on closing Guantanamo – have been defeated every year. 

The NDAA Controversy in 2011  

In 2011, Congress again refused to authorize military detention for persons seized in the United States.  Nevertheless, there is now a persistent public misunderstanding that it did so.  For more information, see our page on the 2011 NDAA controversy and read “A Peculiar and Pernicious Myth: Domestic Military Detentions,” The Huffington Post, January 1, 2012.