The Limits of Change: International Human Rights under the Obama Administration

As a candidate for President, Barack Obama made “change” a central theme of his campaign. In particular, he railed against the Bush Administration’s human rights policy, including its resort to a war of choice that resulted in many civilian casualties, its detention of suspected terrorists at Guantánamo, its use of military tribunals instead of civilian courts to punish persons accused of terrorism, its expansive sense of what constitutes war crimes and who can be punished for committing them, and its general hostility to human rights litigants. Two-and-a-half years into the Obama administration, we find the nation embroiled in a new war of choice in Libya as well as an expanded conflict in Afghanistan, and an ongoing one in Iraq. Guantánamo remains in business, military tribunals once again have become the preferred option for punishing foreign terrorist ringleaders whom our government cannot kill outright, the law of war remains the dominant model for framing the legal limits of U.S. projections of force overseas, and courts have continued to narrow the scope of human rights litigation without serious resistance from the executive. At a glance, it appears that President Obama has become the person that candidate Obama ran against. All this is familiar. My response will be limited, but perhaps helpful. Whether the Bush Administration or the Obama Administration responded better to the challenges posed by terrorist threats, in light of our human rights values and commitments, is not my concern. I have no interest in excoriating the current Administration for its human rights failures or defending it for its pragmatism. In 2008 I did not expect candidate Obama, once elected, to reverse, or even change significantly, the course taken by the U.S. government to meet terrorist threats or otherwise to address human rights issues. This expectation has largely been realized. My objective is to explain the institutional dynamics that brought about this result. This little paper’s objective, in other words, is positive, not normative. I want to explain why administrations behave the way they do, not guide them to some other path than the one they have taken. The institutional constraints that limit what a serving U.S. administration can do regarding human rights include: (1) the challenge to win re-election; (2) the policies and practices developed by career civil servants and military personnel; (3) the profound difficulty of the issues and the risks presented by all conceivable choices, due to the dynamic and uncertain environment that surrounds and forms the modern national security presidency; and (4) the distinct and opposing interests of Congress and the judiciary. I will discuss how each limits the ability of a new administration to break with the past. I then will discuss a particular human rights dispute on which I have done some work, and where the Obama Administration has taken exactly the same approach as did the Bush Administration.