When President Obama announced his intention to restore diplomatic relations with Cuba in late December, he also noted, rather unexpectedly, that "[i]nteresting stuff happens in the fourth quarter" — referring to his final months in office. Policymaking can indeed get interesting when a president is freed from political constraints and legacy issues loom large.
Some parts of Obama's legacy already seem written: his eloquent speeches, his (somewhat delayed) embrace of support for LGBT equality — both abroad and at home. His willingness to engage Iran on nuclear proliferation concerns will surely make the list, as will his engagement with Burma — where an abusive military regime finally agreed, after five decades, to relax its autocratic grasp and allow some political freedoms, even as it inches along more slowly than it should.
But what else will be part of Obama's legacy, particularly on critical human rights issues?
Unsurprisingly, there are a number of human rights concerns that need attention, especially given how turbulent the world has become. Nonetheless, there are some whose urgency, importance and sheer practicality rise to the top. Many will require several levels of engagement — in some cases, between major powers — but they are not out of the question. In fact, explicit leadership could result in some notable achievements during those final months in office, while also underpinning his legacy. Here are 10 areas where he could make a difference.
1. Close the prison at Guantánamo and prosecute torture. Before he leaves office, Obama should keep his promise to close Guantánamo, which needs to include ending indefinite detention without trial, not merely transferring some detainees to the U.S. for continued detention. If detainees at Guantánamo have committed crimes, they should be prosecuted in courts that meet international fair trial standards. If they cannot be fairly prosecuted, they should be transferred home or to third countries for resettlement.
At the same time, with the summary of the Senate intelligence report on the CIA's "enhanced interrogation program" now out in the public domain, Obama should signal the importance of opening new criminal investigations into the use of torture. The failure to take this step deeply undermines the president's commitment to justice, accountability and the rule of law and increases the risk that torture could be used again in the future.
2. Address unjust drug sentences. When campaigning for the presidency, Obama raised concerns about how African-Americans serve disproportionately severe drug sentences for offenses involving crack cocaine. In 2010, he took a first step in reducing sentencing disparities between crack and powder cocaine by signing the Fair Sentencing Act. Yet those already in prison under the previous unfair laws were not able to benefit. While the president recently commuted the sentences of 61 drug offenders, the potential for a criminal justice reform bill to stall in Congress means Obama should be prepared to commute all the unjust drug sentences being served by those already imprisoned when he signed the Fair Sentencing Act — an action perfectly within his pardon power.
3. Enhance transparency around U.S. lethal action. In May 2013, Obama made a commitment to greater transparency about targeted killings. But much opacity remains. To fulfill his commitment, the president should immediately and publicly acknowledge targeted killings anywhere they occur — both in and out of combat zones — whether in Afghanistan, Pakistan, Yemen, Somalia or elsewhere, and whether conducted by the military or the CIA. He should release the number and known identities of civilians and combatants killed or injured. Finally, he should make clear the steps the U.S. has taken to hold people accountable for unlawful strikes — annually and specifically to each strike — and to provide redress for victims.
4. Support strong encryption. Over the last year, the FBI has been demonizing strong encryption, saying its growing use threatens the ability of police to prevent serious crimes like terrorism. Accordingly, the FBI contends that the government should have access to all encrypted messages, even if that means weakening the security of popular phones and chat applications used by millions of law-abiding citizens. This dispute flared up most recently in the case against Apple over the effort to access the iPhone used by the San Bernardino, Calif. attacker Syed Rizwan Farook.
Although the FBI ultimately dropped the case, saying it had obtained access by other means, it does raise questions as to whether forcing tech companies like Apple to build "back doors" into their products helps or harms national security. Had the FBI prevailed, it would have also emboldened repressive regimes to demand the same, undermining the security of human rights activists around the world. To show his support for digital security, for privacy and for global activists, Obama should publicly affirm his support for strong encryption and reject any policies or congressional legislation that would force companies to build back doors into encrypted products.
5. Drop the "Korea exception" to the landmine ban. In September 2014, when Obama announced a ban on the use of antipersonnel landmines everywhere in the world, he was basically pledging to abide by the Mine Ban Treaty, which 162 countries — but not the U.S. — have ratified. Unfortunately, he also made one big exception: the Korean Peninsula. Notably, however, numerous retired military officers have questioned the utility of antipersonnel landmines in South Korea, citing the overwhelming technological superiority of other weapons in the U.S.-South Korean arsenal as sufficient to compensate for not using mines. The U.S. has come far when it comes to banning landmines, but not far enough. Dropping the "Korea exception" would put the United States on a path to join the treaty, once and for all.
6. Support an arms embargo for South Sudan. Given that the U.S. was the main country to support South Sudan's move to independence, Obama has an obligation to help stem the brutal violence that now plagues the young nation. While the U.N. Security Council and key regional players work on a political solution, ruthless violence has upended the country for the last two plus years and continues today — much of it directed at civilians.
In response, the president should make clear that the U.S. will support an arms embargo to stop the flow of weapons to those committing serious rights abuses and war crimes. While suspending arms sales won't resolve the conflict, a well-monitored embargo does have the potential to reduce the flow of weapons and equipment that could be used to commit further crimes against civilians.
7. Reaffirm the illegality of the Israeli settlements. While the administration's efforts to reach a two-state solution for Israel and Palestine remain stalled, finding opportunities to speak out on key issues is critical to rebuilding support for a legitimate peace process. The president should continue to reiterate longstanding U.S. policy that the settlements in the West Bank are not part of Israel and do not deserve U.S. protection, as he did recently in the face of mounting pressure from Congress. But Obama should also reaffirm the illegality of settlements in occupied territory under the Fourth Geneva Convention. To this end, the customs reminder issued earlier this year, which clarified that products imported from Israeli settlements should be accurately labeled, was a notable commitment to reinforce regulations in effect since 1995. With Congress likely to continue its campaign to reverse U.S. policy on settlements, Obama should up the ante, including directing his administration not to veto any anti-settlement resolutions that come up for a vote at the U.N. Security Council.
8. Increase pressure on China. Although the president announced a stand-alone civil society initiative in 2015, his support for independent organizations and activists in China has been weak during much of his presidency. Obama has sporadically called for the release of individual human rights defenders, including the 2010 Nobel Peace Prize winner and literary critic Liu Xiaobo, while the State Department has issued occasional statements or made inquiries behind closed doors. Last month, at the U.N. Human Rights Council in Geneva, the U.S. took an important step by taking the lead on a joint statement on China's human rights record with a dozen other countries. Now the president himself needs to build on this success and integrate human rights into all U.S. policy discussions with Chinese officials, including raising the issue of people who have been forcibly disappeared and those who have been detained for peacefully exercising their basic rights.
9. Delay weapons shipments to Saudi Arabia. According to the Office of the U.N. High Commissioner for Human Rights, over 3,000 civilians have been killed in the Yemen conflict since it began just over a year ago. About two-thirds of these deaths are likely the result of Saudi-led coalition airstrikes, which appear to be continuing despite recent cease-fire agreements. Human Rights Watch and others have reported countless indiscriminate airstrikes by coalition forces, which have killed multitudes of civilians.
In his lengthy interview in The Atlantic magazine, Obama made clear his unease with the Saudi-U.S. alliance. Yet he continues to allow weapons to flow to Riyadh, and the U.S. is increasingly seen, including by Yemeni civilians, as complicit in the Saudi-led air campaign. To reverse course, the president should take a bold step and indefinitely delay the shipment of an already approved $1 billion worth of arms to Saudi Arabia until it agrees to — and opens — transparent and credible investigations into potentially unlawful attacks.
10. Leverage the May trip to Vietnam. As he prepares to travel to Vietnam later this spring, Obama should press Hanoi to secure the release of over 100 political prisoners and communicate clearly that further improvements in economic and military ties cannot occur without significant reforms, including the repeal of draconian laws, and steps toward democratic elections. The president should also use the stalled Trans-Pacific Partnership (TPP) as a tool to communicate to all TPP countries in the region that his administration, along with Congress, expects them to improve not only their economic and labor policies, but also end persecution of political dissidents, opposition groups and independent media.
Some historians say that presidential legacies change over time — or that because information about policy decisions is released slowly, the scorecard doesn't get filled in too quickly. The president himself should use his final months in office to help influence how his legacy is defined by future generations — and to make sure it is deeply rooted in core values and principles.
