In 2008, Barack Obama's election thrilled many human rights activists. For eight years under George W. Bush, the U.S. government had used torture, held hundreds in long-term detention without trial, and committed abuses at wartime prisons such as Iraq's Abu Ghraib. Rights advocates hoped -- and, based on many of Obama's election-season remarks, reasonably expected -- that the unlawful renditions, secret prisons, and unfair trials would give way to a new American commitment the Constitution and international law.
Although Obama faced truculent political opposition in his first term, his weak record on human rights cannot be explained away by economic exigencies or even congressional defiance. Obama now openly embraces the concept of a global "war on terror" as grounds to override international human rights norms and reinterpret the Constitution. Osama Bin Laden's killing was not only the chief talking point of his campaign but a synecdoche for his approach to the terrorist threat, one in which the administration writes its own rules. Although preventing attacks on U.S. soil represents an important human rights victory, this should not overshadow the worrisome direction of U.S. human rights policy and its long-term consequences. If the president's legacy is to include reclaiming U.S. human rights credibility, he needs to face up to his troubling record, and fix it.
The Obama administration has led in some areas of human rights policy; examples include advancing gay and lesbian rights, bolstering U.N. human rights mechanisms, and promoting Internet freedom. But where human rights norms are pitted against counterterrorism tactics, it has fallen down. Blocked by Congress, Obama broke his first-term promise to close Guantánamo. Four years later, that failure barely seems to register as a disappointment; 167 men languish in the prison, including 55 who are cleared for release but have not been transferred.
Recent weeks have revealed details of an Orwellian "disposition matrix" -- a kill list of top terrorist targets that keeps getting longer. The administration claims the authority to kill those named, anytime and anywhere, based on secret information and unreviewable judgments. The administration has declared any man killed by a drone to be an enemy terrorist, and defends such killings regardless of resulting civilian casualties.
With the U.S. withdrawing from Afghanistan, these extraordinary powers are detached from any major battlefield or conventional war. The administration is now backed into claiming that a war exists because it has convinced itself it cannot function without a broad license to kill. Short of al Qaeda suing for peace, this war may never end. The administration's reshaping of the concept of war risks undoing over 100 years of evolution of the laws of war, and the protections those laws have delivered.
The next four years will define whether this rewriting of the rules becomes a bipartisan "new normal" in the United States, and implicit permission for the rest of the world to sidestep human rights. Absent swift progress to close Guantánamo, the men now held will likely die there of old age decades from now, since no future president is likely to renew Obama's ill-fated pledge to close the facility. And even if the Guantánamo detainees are transferred to a U.S. prison, bringing indefinite detention onshore, it is hard to fathom the practice will not be used again to deal with future threats. The bipartisan affirmation of drone use will make those weapons routine for the United States and any other government with a kill list of its own.