US President Barack Obama makes a speech on America's national security at the National Archives in Washington, May 21, 2009.

© 2009 Reuters

(New York) - US President Barack Obama delivered an eloquent defense of the national security reasons for respecting human rights in fighting terrorism, but his proposal to continue detaining terrorism suspects without trial ran counter to the principles he endorsed, Human Rights Watch said today. Obama also undercut his principles by insisting that military commissions could be a fair and credible means of administering justice.

Obama reiterated his decision to close the prison at Guantanamo, rightly emphasizing that US national security is strengthened when US actions are consistent with the country's most fundamental values. Facing growing congressional pressure to back down from the closure plan, Obama stood firm in his promise to "clean up the mess at Guantanamo" by finding alternative solutions for the detainees held there. However, his proposal to create a legal framework for prolonged detention without trial undermines the rule of law.

"President Obama insisted that his security policies represent a ‘new direction' from the policies of the past eight years, and yet today he endorsed indefinite detention without trial," said Kenneth Roth, executive director at Human Rights Watch. "Not only was indefinite detention a central element of the Bush administration's misguided and abusive approach to fighting terrorism, it's deeply inconsistent with the values that Obama defended in his speech."

Human Rights Watch said that the creation of a regime of indefinite detention without trial would create a glaring loophole in the US justice system, and set a dangerous precedent for other types of prosecutions. It would also encourage repressive rulers around the world, who routinely rely on preventive detention as a means of neutralizing their political opposition.

Obama said that his administration would work with Congress to craft legislation that would set out an "appropriate legal regime" for holding terrorism suspects without trial. He said that the framework would include clear procedures, fair standards, and a thorough process for periodic review, which would make it an improvement on the arbitrary system of detention used during the Bush administration.

In discussing the prosecution of detainees held at Guantanamo, Obama made it clear that the government's preference would be to try them in US federal courts. Military commissions would be used only if it would not be feasible to bring a case in federal court, and only for detainees implicated in violation of the laws of war. Human Rights Watch said that revising a military commission system created from scratch by the Bush administration was likely to undermine the basic rights of defendants and delay the administration of justice.

Human Rights Watch commended the Obama administration for underscoring the strength of this commitment to civilian prosecutions by transferring terrorism suspect Ahmed Ghailani to New York for trial in US federal court. Ghailani, implicated in the 1998 embassy bombings in Africa, was charged before a military commission in October 2008.

Obama also deflected proposed efforts to investigate past abuses, reiterating his view that the country should "focus on the future" rather than expend effort looking into the past. Former Vice President Dick Cheney agreed on that point, in a speech that otherwise challenged Obama's claims and set out long and detailed justifications for Bush administration abuses. Belittling proposals for a "so-called ‘Truth Commission'" and asserting that past abuses should not be prosecuted, Cheney argued that any effort to investigate would distract from present efforts to protect national security. He also continued to argue that abusive Bush policies were the most effective means of ensuring the country's safety.

"As tempting as it may be to turn the page on Bush-era policies, the US won't be able to put an end to torture unless it brings to justice those who planned and authorized those abuses," Roth said.

In addressing accountability for Bush-era counterterrorism policies, Obama said the Department of Justice "and our courts can work through and punish any violations of our laws." Human Rights Watch urged Attorney General Eric Holder to make good on this statement by instituting criminal investigations into allegations of abuses by US officials.

Obama also further discussed his decision to block the release of photos depicting the abuse of detainees in US custody in Iraq and Afghanistan, a decision that Human Rights Watch opposed. Obama claimed that the perpetrators of the abuses in those photos had "been investigated and held accountable," but those investigations focused solely on low-level personnel and ignored the senior officials who formulated abusive policies. While his concern about protecting US military personnel in Iraq and Afghanistan is legitimate, Obama should be aware that the real danger comes not from the further proof that abuse happened but from the widespread sense that the officials responsible for planning and authorizing abuses have not been held accountable.

Another important element of Obama's speech was his promise to launch a review of US classification policies and use of the "state secrets" privilege. Human Rights Watch has long called for the US government to release information about criminal and abusive counterterrorism policies rather than to protect such information by misusing classification powers. Similarly, Human Rights Watch has advocated that the administration adopt a narrow interpretation of the state secrets privilege, one that does not kick meritorious cases out of court.

Human Rights Watch commended Obama's views on counterterrorism and human rights, and called on the president to ensure that his policies were consistent with the approach he endorsed.

"We applaud the principled approach to fighting terrorism that Obama so eloquently articulated, but we're concerned that the concrete agenda that Obama set out falls far short of those principles," Roth said.