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Barack Obama’s Shaky Legacy on Human Rights

For all his promises — and a Nobel Peace Prize — the Obama presidency delivered more hope than change

Published in: Foreign Policy
As Donald Trump prepares to take office, many fear a new hostility to human rights on the part of the United States. From his divisive rhetoric about minorities to his embrace of autocrats abroad, there is plenty to worry about. 
Nobel Peace Prize laureate US President Barack Obama enters the Nobel Peace Prize ceremony at City Hall in Oslo, Norway, on December 10, 2009. © 2009 Reuters

Trump presents a stark contrast with President Barack Obama, whose tone was strikingly different. In a 2011 speech at the State Department, for example, Obama said U.S. support for universal rights “is not a secondary interest” but a “top priority that must be translated into concrete actions, and supported by all of the diplomatic, economic and strategic tools at [the U.S. government’s] disposal.” During his eight years in office, his administration did sometimes live up to that rhetoric, and it never stooped to the kind of open disdain of human rights concerns that is feared from Trump.

But the truth is, a careful review of Obama’s major human rights decisions shows a mixed record. In fact, he has often treated human rights as a secondary interest — nice to support when the cost was not too high, but nothing like a top priority he championed.

Drones, Guantánamo, surveillance

His actions on counterterrorism provide a case in point. Obama took office with great promise, announcing on his second day that he would stop CIA torture immediately and close the military prison at Guantánamo Bay, Cuba, within a year. By all accounts, the torture did stop. But Obama has steadfastly refused to prosecute those responsible or even to allow the release of much more than the summary of a comprehensive Senate Intelligence Committee report that documented it. As a result, rather than reaffirming the criminality of torture, Obama leaves office sending the lingering message that, should future policymakers resort to it, prosecution is unlikely. Given Trump’s campaign rhetoric about reinstating waterboarding (“or worse”), this is hardly an academic point, even considering the opposition of his nominee for defense secretary.

Obama’s efforts to close Guantánamo have been equally halfhearted. Early in his tenure, he moved slowly, enabling Congress to adopt legislation — which he refused to veto — imposing various obstacles to transferring detainees overseas and barring their transfer to the United States even for trial. Facing political resistance, he reversed early plans to try the accused 9/11 plotters in a federal district court in New York, where their trials would long ago have been completed. Instead, the suspects were placed before Guantánamo’s military commissions — made-from-scratch tribunals replete with procedural problems. Seemingly designed to avoid public revelation of the details of the suspects’ torture, the commissions have made virtually no progress toward actual trials, which will not begin until long after Obama leaves office, if ever.

Obama has slowly reduced the number of prisoners held at Guantánamo by transferring many abroad. But his insistence on holding some two dozen detainees indefinitely without charge makes it easier for Trump to repopulate Guantánamo, as he has threatened.

On another front in the fight against terrorism, Obama has greatly stepped up the use of aerial drones without sufficient clarity about the legal framework for targeted killing. In places where the United States is involved in armed conflict — such as Afghanistan, Iraq, and Syria — drones can reduce the danger of civilian casualties because they are exceptionally accurate, have a small blast radius, and can safely linger before firing until no or few civilians are nearby.

But the justification for their use is more fraught in countries such as Yemen and Somalia, where the United States has not considered itself in armed conflict. In such cases, under international human rights law, lethal force may be used only as a last resort against a person posing an imminent lethal threat, as in any law enforcement situation. In a 2013 speech at the National Defense University, Obama seemed to embrace this standard for areas outside combat zones, but because drone strikes are shrouded in secrecy, it has not been possible to determine whether his administration is applying it. By all appearances, the administration seems to have frequently defined an “imminent” lethal threat so broadly as to effectively revert to the more lax standards of war.

With respect to surveillance, Obama seems to have continued and expanded programs begun by George W. Bush that lead to massive invasions of privacy. Once Edward Snowden alerted the public to these programs (for which he deserves gratitude, not prosecution), the president did initiate some reforms. He supported legislation to limit the National Security Agency’s ability to collect phone records in bulk under one program and to bring more transparency to the specialized foreign intelligence surveillance court. But most of the mass privacy violations that Snowden disclosed remain unaddressed. Obama maintains that when it comes to non-U.S. citizens abroad, the U.S. government is free to sweep up not only records of their email and telephone communications but also the content of those communications. Needless to say, other intelligence agencies, including those with which the United States cooperates closely, are then implicitly free to do the same to U.S. citizens.

U.S. President Barack Obama waves at the conclusion of his final State of the Union address to a joint session of Congress in Washington January 12, 2016. © 2016 Human Rights Watch

LGBT rights, immigration, drugs

Counterterrorism aside, Obama has taken a few important steps, some of which Trump is now threatening to reverse. Early in his tenure, while he still had some cooperation from Congress, Obama passed health-care reform, going a long way toward upholding the right to the highest attainable standard of health by enhancing Americans’ access to health insurance. He got on board with marriage equality, helping secure the Supreme Court’s landmark recognition of the right to same-sex marriage. He also ended “don’t ask, don’t tell” for gays and lesbians serving in the U.S. military, opening military service to everyone regardless of sexual orientation, including transgender people. His support for LGBT rights also became an increasingly important part of his foreign-policy agenda.

Obama pushed a reluctant Congress hard for immigration reform, and by executive order tried to shelter longtime residents from deportation — particularly youth who had grown up in the United States. But he was stymied by a court order, secured by opponents of reform, which a deadlocked Supreme Court did not reverse. At the same time, Obama greatly expanded deportation. Although he claimed to prioritize deporting migrants who were dangerous criminals, he ended up targeting hundreds of thousands of people with old or minor convictions. He also took the cruel step of detaining entire families who sought asylum in the United States from raging gang violence in Central America — even though a large percentage of their asylum claims were on initial review found valid.

The hopes behind his early receipt of the Nobel Peace Prize — that he would lead a new kind of U.S. foreign relations, built to a large extent on defending human rights — were left unfulfilled.
Kenneth Roth

Executive Director

The Obama administration continued to aggressively enforce misguided criminal laws on drugs both domestically and abroad, despite the devastating human rights impact of the “war on drugs” and its contribution to the mass arrests and incarceration that have disproportionately affected African-Americans. The president did make some cautious progress toward reform, choosing not to interfere as a growing number of states experimented with marijuana decriminalization. His administration increasingly stressed treatment over punishment for problematic drug use and showed some willingness to interpret international drug conventions “flexibly” to allow for reform. He also used his clemency power to address unfair drug sentences and other excessive punishment, pardoning or commuting the sentences of 1,324 people in the federal system, more than the last 11 U.S. presidents combined. That was a strong symbolic step, even though he was unable to convince Congress to reform the laws that often lead to those extreme sentences.

In response to the police killing of an unarmed black man in Ferguson, Missouri, and the intense protests that followed, Obama’s Justice Department conducted an effective investigation into the Ferguson Police Department’s practices, uncovering extensive racial discrimination and profiling. But similar killings continued throughout the United States, and although Obama spoke out about them, his administration failed to develop a system even to effectively track deaths at the hands of police.

The Syria debacle

On the foreign-policy front, the biggest stain on Obama’s record has been his ineffective response to the widespread slaughter of Syrian civilians by forces under Syrian President Bashar al-Assad, aided by the militaries of Russia, Iran, and Hezbollah. Obama largely focused on the threat posed by the Islamic State despite the fact that Assad’s military has been responsible for more than 90 percent of civilian casualties in Syria, according to local monitors.

Obama’s response to the government’s atrocities has been halting and ineffective. In the early phases of the conflict, the United States let its allies Qatar, Saudi Arabia, and Turkey provide military support to competing opposition groups, some of which were deeply abusive themselves. Once the Syrian military tramped across Obama’s “red line” on the use of chemical weapons, the U.S. government helped secure the removal of its chemical weapons arsenal. But even that proved incomplete, as Syria’s air force continued to deploy chlorine in barrel bombs. Given chlorine’s legitimate uses, its possession is not banned, but its use as a weapon violates the Chemical Weapons Convention. The Obama administration pushed for sanctions at the U.N. Security Council, but dropped the matter when Russia blocked the initiative, and worked to weaken congressional efforts to enact tougher sanctions.

Obama’s response to the Syrian conflict never seemed to reflect the severity of its regional impact. The brutality unleashed by the Syrian government has killed hundreds of thousands of civilians. It also created a vacuum that allowed for the growth of extremist groups such as the Islamic State and the Nusra Front — now Jabhat Fateh al-Sham — destabilized neighboring countries like Iraq and Lebanon, and triggered a wave of mass displacement.

Faced with such a profound challenge, Obama deployed Secretary of State John Kerry for what proved to be endless and largely unproductive negotiations with his Russian counterpart, Foreign Minister Sergei Lavrov. While those discussions dragged on, Kerry treated Russia as a partner in peace efforts rather than an enabler of Assad’s mass slaughter, even as Assad’s attacks on civilians were taking a daily toll. During that time, the administration largely refrained from publicly pressing Russia to stop supporting and ultimately joining those attacks — the only nonmilitary option that might curtail the war crimes. Assad may well be beyond caring about his reputation, but Russian President Vladimir Putin is not. Only in the waning months of its tenure did the Obama administration start regularly pressing Russia in public for its complicity in the slaughter of Syrian civilians.

Hypocrisy in the Middle East

Elsewhere in the Middle East, Obama rarely lived up to the lofty promise of his 2009 Cairo University speech, where he spoke eloquently of the need to build democracies in the region. In Bahrain, Egypt, and the United Arab Emirates, Obama responded inconsistently and sometimes reluctantly as allied governments crushed dissent. Kerry went so far as to say that Egyptian Gen. Abdel Fattah al-Sisi’s coup overthrowing the elected government of President Mohamed Morsi was “restoring democracy,” and the administration resumed military aid to Egypt after the coup despite the government’s mass killing and arrest of Muslim Brotherhood supporters. The administration granted Israel an unprecedented military aid package despite its war crimes in Gaza and relentless settlement expansion, but in its waning days allowed the U.N. Security Council to adopt a resolution affirming the illegality of Israel’s West Bank settlements.

Meanwhile, the administration provided direct support to the Saudi-led coalition as it repeatedly bombed civilians in Yemen. As the civilian death toll mounted, the administration did voice a measure of public criticism and stopped its modest sales of cluster munitions as well as certain other arms to Saudi Arabia. But it allowed other arms sales to proceed while continuing to provide aerial refueling and possibly targeting assistance to coalition bombers.

In a marked departure from the Bush administration, which had effectively declared war on the International Criminal Court, the Obama administration cooperated with the court’s investigations and supported the U.N. Security Council’s referrals of situations in Libya and Syria (though Russia and China vetoed the latter). It also worked to build support for a referral down the road of crimes against humanity in North Korea. Yet the administration objected to Palestine joining the court and opposes any ICC investigation of grave crimes by Israeli officials.

Obama’s resolve to confront leaders in the former Soviet Union was often weak in the face of fears that criticism would push regional governments closer to Moscow or compete with security and economic concerns. In deeply authoritarian Central Asia, for example, human rights were an afterthought in most of Kerry’s meetings with the region’s foreign ministers. In addition, the preoccupation with Syria led the administration to pay relatively little attention to the dramatic deterioration of human rights in Turkey following last July’s failed coup attempt, including the silencing of independent media and jailing of journalists, as well as the mass dismissals or prosecution and detention of judges, teachers, civil servants, Kurdish elected mayors, and political activists.

One of Obama’s highest-profile accomplishments was the normalization of relations with Cuba. This was a positive human rights step despite the repression in that country, because hostile relations between Washington and Havana have long deterred other governments from speaking out about the rights situation on the island. While in Cuba, Obama addressed the need for progress on human rights but, eager to celebrate his accomplishments, did little to press Raúl Castro’s government to show concrete results. Nor did the administration work with other governments to generate multilateral pressure for reform.

Obama supported efforts by the Colombian government to negotiate a peace deal with the FARC guerrillas but made no serious effort to press for meaningful punishments for FARC war crimes or for the Colombian military’s execution of some 3,000 young men whom it dressed up in FARC uniforms and killed to demonstrate progress in the war.

Asleep in Africa

Overall, the Obama administration provided strong support for civil society, media freedom, and LGBT rights in Africa. However, as authoritarian rulers gained a greater foothold on the continent, Washington was inconsistent in matching Obama’s early and apt observation that Africa needs “strong institutions, not strongmen” with concrete actions.

The United States played an instrumental role in the birth of South Sudan by backing southern rebels’ quest for independence from Sudan, but the Obama administration failed to use its leverage as the new country quickly descended into renewed conflict. Government troops and rebels alike have committed massive abuses against the civilian population, resulting in tens of thousands of deaths and extensive displacement. While the U.S. government agonized over whether to impose an arms embargo on South Sudan — embracing the effort only toward the end of 2016 — President Salva Kiir and rebel leader Riek Machar were paying no price for the atrocities committed by their troops.

In the Democratic Republic of the Congo, U.S. officials have been at the center of intense though unsuccessful efforts to convince President Joseph Kabila not to extend his presidency beyond the constitutional two-term limit. They also imposed multiple rounds of sanctions on senior officials in Kabila’s government who were overseeing the violent suppression of opposition protests. With respect to Rwanda, the Obama administration walked back the long-standing U.S. tendency to lionize President Paul Kagame despite his record of serious abuses. However, the administration largely maintained its blind spot for mounting abuses by Ethiopia, a counterterrorism ally often compared to Rwanda for its development progress despite severe repression.

A mixed bag in Asia

In Asia, the administration played an important role in pushing for greater pressure on North Korea to curb its totalitarian repression, encouraging the U.N. Human Rights Council to appoint a commission of inquiry and the U.N. Security Council to hold unprecedented hearings on human rights in the country. The Obama administration also supported efforts to encourage the new Sri Lankan government to begin a process of accountability for the loss of as many as 40,000 civilian lives in the final months of the conflict with the Tamil Tigers during the prior government of Mahinda Rajapaksa.

Yet on Myanmar, the administration, although supportive of the transition to an elected civilian government, declared victory prematurely, gradually lifting all sanctions. However, the country’s military retains effective veto power over its civilian government, including control of the police and other security services, a quota of 25 percent of parliamentary seats, and the right to dissolve the government. The military has also been the primary actor in the increasingly severe and violent persecution of the country’s Rohingya Muslims.

Obama surprised many observers by embracing Narendra Modi, India’s divisive and nationalistic prime minister. Allegations that Modi presided over deadly attacks on Muslims in his home state of Gujarat in 2002 had led the U.S. government to deny him a visa in 2005, yet Obama effusively welcomed Modi to Washington. Obama’s policy toward India can be explained in part by his administration’s “Asia pivot,” an attempt to create a security, economic, and political alliance to contain China. Yet Obama disappointed many by not pointing out the contradiction between Modi’s boasts abroad about India’s strong democracy and his government’s moves at home to narrow the space for criticism and dissent. When Obama belatedly spoke publicly about protecting religious minorities in India, it led to useful pressure on Modi, whose supporters have attacked Muslims and Dalits.

With respect to China, the Obama administration sought cooperation on North Korea, climate change, trade, and other issues but was unwilling to apply sustained pressure on Beijing’s disastrous rights record. Under President Xi Jinping, China saw its most significant human rights erosion since the 1989 Tiananmen massacre, yet Obama failed to develop anything remotely like a strategy to support those across China struggling to defend basic freedoms. During his interactions with senior Chinese leaders, he offered only minimal, abstract comments on human rights, rarely calling publicly even for the release of people like his fellow Nobel Peace Prize laureate Liu Xiaobo.

The administration also did little to address democratic backtracking in Thailand, Cambodia, Malaysia, and Bangladesh, too often prioritizing ineffective quiet diplomacy and failing to wield its extensive leverage.

As we look back on Obama’s two terms in office, his administration’s human rights policies and practices have had many positive elements and some real accomplishments. Human rights activists worry that under a Trump presidency, the cornerstone principles that for decades have been supported by multiple administrations of both parties may be dismantled. Yet even Obama never really warmed to human rights as a genuine priority and so leaves office with many opportunities lost. The hopes behind his early receipt of the Nobel Peace Prize — that he would lead a new kind of U.S. foreign relations, built to a large extent on defending human rights — were left unfulfilled. That leaves a shaky foundation as the Trump administration prepares to take office.

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