The Limits of Ken Roth’s Criticism of Obama

In February 2015, the New York Review of Books published a piece by Ken Roth, the executive director of Human Rights Watch, an organization often criticized for its close ties to the military and intelligence establishments. While he engages in moderate criticism of Obama, specifically his “ignored record,” my aim is to analyze Roth’s article and show that his criticism doesn’t go far enough.

While Roth’s argument is valid in its criticism of Obama for failing to: prosecute CIA torturers, end mass surveillance and drone warfare, and close Guantanamo Bay (Gitmo), it falls short. He claims that people, hoping for a “more consistently rights-respecting approach to combating terrorism,” have been disappointed by Obama. Such disappointment would clearly be false because Obama not only “voted yes on the war budgets while in the [US] Senate” but his famous speech about the Iraq War in 2002 framed the invasion “in much the same terms as…the rest of the U.S. foreign policy establishment,” and his militarism has been on full display since his presidency began.

Additionally, as Adolph Reed claimed in his controversial Harper’s magazine article, there was a “long, slow surrender of American liberals.” Obama has “been clear all along that he is not a leftist” since he has distanced himself from radical politics and engaged in “rhetorically pretentious, jingoistic oratory about the superiority of American political and economic conditions.”1 Reed also quotes individuals who, during Obama’s first presidential campaign, said that he wasn’t really a liberal or a progressive, and that he was “always no more than an unexceptional neoliberal Democrat…with solid connections and considerable good will from the corporate and financial sector.”2

Beyond this, Roth writes, strangely enough, that Obama’s policy on torture has “been both the firmest and the most qualified” by ending CIA “black sites” and ending Bush’s techniques of torture deceptively called “enhanced interrogation.” This is incorrect. In 2011, investigative journalist Jeremy Scahill revealed that the CIA was interrogating people in a secret prison in Somalia. That same year, the US government admitted that a Somali man was interrogated for two months on a navy vessel.3 Additionally, for five years after Obama declared that the “black sites” were closed, the US continued to interrogate and torture people at Bagram prison in Afghanistan (which was recently closed), a place that the Obama administration said would be a “Guantanamo-style prison.” This was the same place where numerous prisoners, 80% of whom were not likely terrorists, were sleep deprived, “beaten by American soldiers” before being taken to prison, kept in fifty-six small concrete cells “made of mesh” with clear ceilings, and had no access to lawyers.4 Additionally, as Rebecca Gordon noted, “the men being held there used hunger strikes as their only nonviolent means of resisting their indefinite detention and solitary confinement.”

That’s not all. In his executive order ending the “black sites” and Bush-style torture, Obama declared that “Federal law enforcement agencies” would be authorized to use “non-coercive techniques of interrogation that are designed to elicit voluntary statements” that do not engage in the use of force. Additionally, he has continued extraordinary rendition, or the practice of the Bush administration, to send “terrorism suspects to third countries for detention and interrogation,” with administration officials claiming they won’t be tortured and that there would be “greater oversight.”5 This “shadowy practice of snatching terrorism suspects from one country and rendering them into the custody of another,” as ProPublica describes it, happens in the absence of due process.

Despite excluding such information from his analysis, Roth strongly criticizes Obama’s Department of Justice. He says they failed to fulfill their obligations under the Convention Against Torture by “not prosecut[ing]… anyone for Bush-era torture,” concentrating instead on “a narrowly focused investigation into interrogation techniques” which resulted in no prosecutions. While this is accurate, it misses that the CIA committed crimes by destroying tapes showing interrogations, which Jose Rodriguez, the CIA officer in charge of the Agency’s torture program, absurdly defended by claiming that the torture and interrogations were lawful.6 Later, Roth, referring to the recent CIA torture report, a slightly redacted “summary” which consists of less than 10 percent of the full report, writes that it is “sad that we must even debate the efficacy of torture, given that the legal and moral prohibition of torture is among the strongest we have,” noting that the Geneva Conventions forbid torture under all circumstances. While this is correct, it is silly to think that just because prohibition of torture is strong that it won’t happen. The US government has tortured people and it will do so in the future, no matter what the laws say. As Eric Posner, who has defended NSA surveillance and claimed that Al Qaeda members could be thrown in jail without applying protections of a criminal trial, argues, over the past twenty years, “respect for human rights has improved, but only modestly,” noting that “powerful Western countries, including the United States, do business with grave human rights abusers.”7 Posner also writes that “human rights law has failed to accomplish its utopian aspirations, and it ought to be abandoned.”8

Roth, while writing about the CIA’s defense of their torture, criticizes the infamous “torture memos” as clearly “strained, intellectually dishonest attempts to justify the unjustifiable” (torture) and notes that Obama admitted torture. But, in saying that, he misses the point that Obama justified the torture as necessary in the post-9/11 environment and that he didn’t ban all torture techniques:

…even before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values…I understand why it happened. I think it’s important when we look back to recall how afraid people were after the Twin Towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen, and people did not know whether more attacks were imminent, and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots…[still] we did some things that were wrong…after I took office, one of the first things I did was to ban some of the extraordinary interrogation techniques that are the subject of that report…when we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line.

Roth worries that “Obama’s refusal to investigate, let alone prosecute, Bush-era torture means that…torture remains an option for policymakers rather than a criminal offense.” However, while he claims that Obama has “refused to bring any new detainees to Guantanamo” and that “the number of detainees has fallen,” which he never expands upon, he does not comment on the prisoners who have died in hunger strikes. Nor does he mention that many detainees could have been released but have not.

Roth also writes that there has “been no real progress toward shutting down the facility” or trials for those held inside the hideous prison. He gives specifics of the different prisoners at Gitmo, saying that Obama has “considerable authority to release uncharged detainees and to send them either to their home countries or…to third countries.”  However, no one can deny that Obama could have closed Gitmo and hasn’t.

It is worth noting that the land now occupied by the Gitmo prison was taken by military force during the Spanish-American war of 1898, then codified in the Cuban-American treaty of 1903. This treaty was signed at a time when Cuban sovereignty was limited, as it couldn’t make “treaties with third powers which might compromise the independence of the nation” and its “debt contracting powers…[were limited] to obligations within the scope of the ordinary revenues.” Additionally, the “intervention by the United States to maintain orderly government and all its accessories” was codified and “the cession to the United States of sites for coaling or naval stations” was required, which served as a basis for the occupation of Gitmo.

Not only should the prison be closed as many who are struggling for peace and justice believe, but as Cesar Chelala has written, closing the Gitmo naval base and returning it to the Cuban people would be “a measure that could have far-reaching consequences and notably improve the U.S.’[s] battered image in the continent[.]” Additionally, the 1934 treaty, which reaffirmed that Gitmo would be in US hands, was signed under conditions which “left Cuba no other choice than to yield to pressure,” conditions that some say are a violation of the Vienna Convention on the Law of Treaties despite the fact that the US has not ratified this convention.

Roth’s benign criticism does not mention the context for the seizure of Gitmo or the US military’s three imperialist9 occupations of Cuba (1898-1902; 1906-1909; 1917-1922), does have some value. He calls military commissions, which the Supreme Court has challenged in the past10, “jerry-rigged institution[s] that [are]…being built and tested even as it attempts to handle one of the highest-profile cases of the century.” He also said that the decision by the Obama administration to keep all evidence about the CIA’s torture, of “six of the seven defendants currently being tried,” classified is wrong. However, it is also important to question indefinite detention itself. Already, the USA Patriot Act allows immigrants to be indefinitely detained and indefinite detention exists at Gitmo. Roth could have noted that section 1021 of the National Defense Authorization Act (NDAA) for 2012 allows US citizens who were “part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners” to be indefinitely detained and be tried by a military tribunal. This omission by Roth is deeply problematic.

Roth goes on to express his dissatisfaction with respect to the use of drones, stating that Obama has been “disappointing in clarifying the body of law that governs the use of aerial drones for targeted killing,” that there isn’t enough transparency, and asking that when “the United States targets people who are said to pose a threat of terrorism [then] what law governs in those circumstances?”  He notes that while the Bush administration would imply that the whole world is the battlefield, the Obama administration has not given such an explanation, meaning that “we have no idea what rules for drone use are…being prescribed away from active war zones or whether they are being followed.”

The reality is that even if Obama identified what laws and rules he uses, with the assistance of his advisers, to assassinate alleged “terrorists” without due process every Tuesday in secret sessions, what would change? It is important to remember that often the identification or crimes of the alleged “terrorists” are seldom determined, with the President and his advisers serving as judge, jury, and executioner.11 This is because drone strikes are not only determined by “unreliable metadata,” but all “military age males” in a specific “strike zone” are considered “combatants,” while all of those killed are considered “militants.”12. In theory, one could hold Obama and his advisers more accountable for their targeted assassination campaign with increased transparency. However, with documents and information that have been released so far, one should push for the end to the illegal and heinous assassinations rather than just pushing for “transparency.” I worry that while one is engaged in the fight for transparency then people will continue to die at the hands of the CIA, JSOC, drone operators, and the Presidency itself.

As the Bureau of Investigative Journalism reports, between 2,869 and 4,387 people have been killed by drone strikes in Yemen, Afghanistan, Pakistan between 2002 and the present, a number which doesn’t include “possible,” but not confirmed, strikes.13 This is something that no one should accept.

Roth then criticizes mass surveillance. He couches this in words that have been echoed by others such as Glenn Greenwald, by claiming that “few would object to targeted surveillance directed against suspects reasonably believed to be plotting terrorist acts.” Simultaneously he says that mass surveillance is problematic because the US government is collecting “information that can be extraordinarily revealing about our personal lives” fearing that “it will have nowhere to search should the need arise.” He claims that mass surveillance is “apparently unnecessary” since the “government has yet to identify a single terrorist plot that could not have been stopped without the government’s mass collection of our metadata.” This is valid considering that the only person who was convicted because of mass surveillance was a Somali national who the government alleged was funding Somali extremists, specifically Al Shabab, despite the fact that his friends and close confidantes deny it.

Roth implies that he supports the USA Freedom Act, a piece of legislation backed by the Obama administration, which allows for continued mass surveillance through a loophole and may have even created a larger surveillance apparatus.

Interestingly, Roth writes that Obama hasn’t addressed the problem that “foreign citizens outside the United States have no right to privacy even in the content of their communications” with mass surveillance. He claims that this surveillance had led to a “healthy” backlash of countries concerned about privacy and “basic freedoms” and a “negative” backlash of countries having “reservations about their communications flowing through the United States.” While this seems bold, since he is criticizing surveillance on US and foreign citizens, he doesn’t offer any suggestions as to how such surveillance would be limited. If he really wanted to, he could have called for the smashing of the whole surveillance apparatus, which I advocate. But he’s too reformist for that type of talk. After all, he warns that if “democratic governments begin requiring that communications data stay within their countries” then they “will invite a similar response from countries like Russia and China,” adding that this will have “damaging consequences for privacy and free speech.” While requiring one’s communications data to stay in one’s country could encourage more “closed” societies, there is also the possibility that it could  allow a country to be free of surveillance from the US government. I am not suggesting that any country is entitled to their own surveillance system, since government spying on the general populace, even if justified in an effort to stop supposed terrorists, is abhorrent. Rather, I am saying that if a country keeps their “communications data” within their own borders, there is the possibility it wouldn’t be snooped upon by the mass surveillance apparatus of the United States.

In the final part of his piece, Roth suggests that since Obama is a “lame duck president,” this is “an opportune moment for him to contemplate a more principled approach to counterterrorism.” While that seems good intentioned, Obama’s political party doesn’t have a majority in Congress as it did in the early part of his presidency. This means that in a practical way, a “principled approach” would be just more of his worthless liberal rhetoric. Roth then outlines the “significant steps” Obama could take without Congressional approval: “allowing criminal investigation of the officials who authorized the CIA’s torture, shutting [down] Guantánamo, ending the military commissions, announcing clear rules for drone use, and embracing effective limits on intrusions into privacy by electronic surveillance.” Then, he almost hands Obama a bone by claiming that its “still not too late for Obama to demonstrate that our security indeed does not depend on abandoning our rights.”

Roth’s view seems optimistic, but it is inappropriate to argue that Obama should engage in a number of tasks while not criticizing increased presidential power. In fact, the actions he recommends could be used to justify a further expansion of executive power. At the same time, Roth’s support for “limits” on mass surveillance and “rules” for drone use, are even worse. This is because these measures would be ineffective in stopping the death and suffering caused by the reign of terror brought on by drone assassinations or in efforts protecting the inherent right of privacy of not only Americans, but people of the world.

While Roth’s measured criticism might be pleasing to some, it often misses the necessary context; however, the fruitless reformist efforts advocated by Roth won’t fundamentally protect underlying rights or end atrocious abuses of human rights by the US government. Not only does the idea of “human rights” need to be questioned, but there needs to be imaginative approaches to present dilemmas which challenge and question established institutions.

I’ll end with a quote from the wonderful book by religious scholar Sarah Sentilles, which says that we as humans are the only ones who are watching out for each other: “Someone is on top of that mountain in that glass house watching over the world. Sometimes it’s you, and sometimes it’s me. The only ones watching for smoke, the only ones ready to sound the alarm, the only ones who will bring water, are the people down here with us. Just us, looking out for each other.”14

  1. Reed, Jr., A. (2014, March). “Nothing Left: The Long, Slow Surrender of American Liberals”. Harper’s Magazine, 31. []
  2. Ibid: 32, 35. In the preface to the paperback version of his book, Democracy Incorporated, Sheldon Wolin makes a similar point, writing that Obama’s form of change was “highly pragmatic” and that the Obama administration, even in its first days, was continuing the “cozy and longstanding relationship between Washington and Wall Street.” []
  3. This information comes from a New York Times article titled “U.S. to Prosecute a Somali Suspect in Civilian Court”, July 5, 2011. []
  4. This information comes from a BBC article titled  “Afghans ‘abused at secret prison’ at Bagram airbase”, April 15, 2010. Also see this article on Obama appealing a decision by a US District Court on a trio of detainees at the prison who had been denied their rights. []
  5. This quote comes from a New York Times article titled “U.S. Says Rendition to Continue, but With More Oversight”, August 24, 2009. Other information was obtained from a Washington Post article titled “Renditions continue under Obama, despite due-process concerns”, January 1, 2013. []
  6. Information about destroying the tapes comes from two New York Times articles, one published on December 7, 2007 “C.I.A. Destroyed 2 Tapes Showing Interrogations” and another on March 2, 2009 “U.S. Says C.I.A. Destroyed 92 Tapes of Interrogations” []
  7. Posner, E. “Against Human Rights”, Harper’s Magazine, 14. An excerpt from the book The Twilight of Human Rights Law, October 2014. []
  8. Ibid. 15-6. []
  9. In this instance, I define imperialism as “the use of force by a state, possibly in conjunction with multinational corporations, capitalists, and other states, through covert or overt means, to advance purported “national” economic, military, or political interests in another state, territory, or country without the consent of those living in the said state, territory, or country.” There is no doubt that this occurred in Cuba from 1898 to Batista’s overthrow in 1959 by Cuban rebels. []
  10. See the cases Hamdan v. Rumsfeld. Also see the cases Rasul v. Bush, Hamdi v. Rumsfeld, and Boumediene v. Bush on Gitmo. []
  11. A document summary on the United Nations’s Multilingual Terminology Database defines extrajudicial killings as killings committed by groups such as vigilantes or secret government agents “outside judicial or legal process” meaning that they are “in contravention of, or simply without, due process of law.” It is clearly evident that drone strikes follow this definition as they are broadly outside the bounds of existing law. In a paper about targeted killing by Israeli professor David Kretzhemer, he examines one drone strike by the US, writing that “it is hard to escape the conclusion that the attack was unlawful” (pp. 204) and that “a state cannot violate its obligations to respect and ensure the right to life, by allowing another state to deprive persons of that right” (pp. 205). A 2010 report by the special rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, makes a similar point, noting that the killing of another person through the means of targeted killing must be “militarily necessary, the use of force must be proportionate…and everything feasible must be done to prevent mistakes and minimize harm to civilians”, pp. 10. []
  12. Information about who is killed in drone strikes comes from a New York Times article titled “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will”, May 29, 2012 []
  13. One could argue that those killed by the drone strikes are generally those who are not taking an “active part in hostilities” which means that their murder is prohibited under Article 3 of the Third Geneva Convention, and there could be further violations of the Fourth Geneva Convention if they are considered “protected persons.” There is also an argument one could make that drone strikes violate Article 23 of the Hague (II) convention, which prohibits countries, such as the United States, Germany and others, from killing or wounding “treacherously individuals belonging to the hostile nation or army…[and] employ[ing] arms, projectiles, or material of a nature to cause superfluous injury.” The same could be said for Article 25 of the same convention which says that “the attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.” One could argue that drone strikes are attacks on innocent people for a good amount of the time and therefore violate this provision. []
  14. Sentilles, Sarah. Breaking up with God: A Love Story. New York: HarperOne, 2011. 228. Print. []
Burkely Hermann is an activist who wants to change the world for the better by imagining alternatives to the status quo of neoliberal global capitalism. In order to illuminate these alternatives and outline the status quo, he runs numerous online blogs, writes numerous articles, and uses his tech savvy skills to fight for social justice. Read other articles by Burkely.