Report
Card:
The Obama Administration's Efforts to
Restore the Rule of Law During its First 100 Days
U.S. Senator Russ Feingold released a "100
Day Rule of Law Report" to examine the new administration’s
efforts to reverse the Bush administration’s eight year assault
on the rule of law. Feingold assessed the steps the Obama
administration has taken thus far to address recommendations
made by forty organizations and experts in connection with
a Senate Constitution Subcommittee
hearing chaired by Feingold on September 16, 2008, entitled
"Restoring the Rule of Law." President Obama took
a critical first step when he acknowledged the importance
of the rule of law to the country in his inaugural address.
The Obama administration received high marks for several actions
he has taken in his first 100 days in office, including his
executive orders to close the facility at Guantanamo Bay,
ban torture and increase transparency. However, Feingold’s
review finds the Obama administration’s invoking of the state
secrets privilege "troubling" and notes that the
administration's efforts in many other areas are incomplete.
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Separation
of Powers
-
Give
priority to rule of law issues
Grade: B | Status: In Progress
Recommendation
(Give priority to rule of law issues): "The new
administration should make the restoration and advancement
of the rule of law an overarching theme. This should
include an explicit rejection of the extreme theory
of Article II executive power that the Bush administration
has used to justify torture and illegal warrantless
wiretapping; a pledge to work with Congress to give
priority to measures to restore public confidence in
the rule of law; and an announcement of a zero tolerance
policy for official misconduct."
Action: President Obama and administration
officials have often cited the administration’s efforts
to restore the rule of law. During his confirmation
hearing, Attorney General Eric Holder clearly stated
that “no one is above the law,” he stated without equivocation
that waterboarding is torture, and he acknowledged Justice
Jackson’s Youngstown analysis as controlling the limits
of executive action when Congress has legislated on
the question.
-
Recognize
and cooperate with the legitimate oversight function of
Congress
Status: Incomplete
Recommendation
(Congressional Oversight): “The new administration should
recognize and cooperate with the legitimate oversight
function of Congress. In certain key areas like interrogation
policy and surveillance, Congress was kept in the dark
for years and there remain significant impediments to
congressional inquiries. I urge your administration
to provide requested information on these issues to
Congress as soon as possible and to cooperate with future
oversight efforts.”
Action: The recent release of the torture
memos was an important step, though it was taken in
response to litigation rather than the pending congressional
subpoena. It is too soon to tell whether this Administration
will treat congressional oversight with respect or disdain.
-
Cooperate
with the congressional intelligence committees
Grade: C | Status: Incomplete, but
positive
Recommendation
(Cooperation with Intelligence Committees): "The
new administration should view the congressional intelligence
committees as a partner rather than a nuisance. It must
commit to full compliance with the National Security
Act, ending the abuses of the limited “Gang of Eight”
notifications and ensuring that the full committees
are kept fully and currently informed of all intelligence
activities."
Action: The administration has pledged
to cooperate with the review of the Senate Select Committee
on Intelligence of the CIA’s detention and interrogation
program. It is too soon to tell whether full cooperation
with the review will be forthcoming, or whether, in
other contexts, the administration will remove current
impediments to full oversight of the Intelligence Community.
-
Review
opinions issued by the OLC under the Bush administration
Grade: B | Status: In
progress and encouraging
Recommendation:
"The new administration should conduct a comprehensive
review of opinions issued by the Department of Justice
Office of Legal Counsel (OLC) under the Bush administration,
and repudiate or revise those that overstate executive
authority."
Action: Attorney General Holder indicated
in his confirmation hearing that he would order a review.
The release and repudiation of the torture memos, and
of nine other memos withdrawn in the waning days of
the Bush administration, indicates that the review is
ongoing and may yield tangible results.
Excessive
Government Secrecy
-
Review
the pending cases in which the state secrets privilege
has been invoked
Grade: D | Status: Troubling
Recommendation
(State Secrets): "The new administration should
conduct a review of pending cases in which the state
secrets privilege has been invoked to assess whether
the invocation was proper. It should also support legislative
efforts, such as the State Secrets Protection Act (S.
2533/H.R. 5607), to allow more meaningful judicial scrutiny
when the privilege is invoked."
Action: The Obama administration has
invoked the state secrets privilege in three cases in
the first 100 days -- Al Haramain Islamic Foundation
v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v.
NSA.
In Al Haramain, the Obama administration reinvoked
the privilege in a case originally filed against the
Bush administration in which the Al Haramain foundation,
whose American branch is based on Oregon, alleged that
the Bush administration authorized warrantless wiretaps.
In Mohammed v. Jeppesen Dataplan, five individuals
once held at Guantanamo Bay prison are accusing Jeppesen
Dataplan, a subsidiary of Boeing, of providing logistical
support for their “extraordinary rendition” to a foreign
country where they were allegedly tortured. In Jewel
v. NSA, the Electronic Frontier Foundation is suing
the National Security Agency on behalf of AT&T customers
for alleged illegal wiretapping surveillance. After
Congress granted retroactive immunity to the telecom
companies that allegedly participated in the Bush administration’s
warrantless wiretapping program, cases in which the
government is the defendant are the only legal avenues
remaining to potentially test the legality of that program.
Senator Feingold has joined Senators Patrick Leahy,
Arlen Specter, Edward Kennedy and others in introducing
the State Secrets Protection Act, a bill to provide
guidance to federal courts considering cases in which
the government has asserted the state secrets privilege.
The Obama administration has yet to take a position
on the legislation.
Attorney General Holder has indicated that a complete
review of all cases in which the state secrets privilege
was asserted by the Bush administration is under way
and that he hopes to make the result of that review
public. Only the glimmer of hope offered by that ongoing
review saves the Obama administration from a failing
grade on this recommendation.
-
Rewrite
executive order regarding classification policies &
procedures
Status: Incomplete
Recommendation
(Overclassification): "The new administration should
rewrite President Bush’s executive order regarding classification
policies and procedures (Executive Order 13292) to reinstate
provisions from the previous classification order (Executive
Order 12958, signed by President Clinton) that established
a presumption against classification; allowed senior
agency officials to declassify information in certain
exceptional cases; and prohibited re-classification
of properly declassified information. The new administration
also should seriously consider ordering each entity
with classification authority to do a thorough review
of its classification policies and practices to reduce
over-classification."
Action: There has been no action on
this recommendation yet.
-
Reverse
the October 2001 ‘Ashcroft Memorandum' on Freedom of Information
Act
Grade: A | Status: Complete
Recommendation
(FOIA): "The new administration should reverse
the October 2001 ‘Ashcroft Memorandum,’ which stated
that the Justice Department will defend an agency’s
decision to withhold a document requested under the
Freedom of Information Act if the document even arguably
falls within one of FOIA’s exemptions. Instead, the
new administration should reinstate the presumption
of disclosure established under a 1993 memorandum issued
by Attorney General Reno, which stated that DOJ will
defend an agency’s decision to withhold a document only
if the agency reasonably foresees that disclosure would
be harmful to an interest protected by one of FOIA’s
exemptions."
Action: The President implemented this
recommendation in a Presidential Memorandum issued on
January 21, 2009, the day after his inauguration. The
memo states:
The Freedom of Information Act should be administered
with a clear presumption: In the face of doubt, openness
prevails. The Government should not keep information
confidential merely because public officials might be
embarrassed by disclosure, because errors and failures
might be revealed, or because of speculative or abstract
fears. Nondisclosure should never be based on an effort
to protect the personal interests of Government officials
at the expense of those they are supposed to serve.
In responding to requests under the FOIA, executive
branch agencies (agencies) should act promptly and in
a spirit of cooperation, recognizing that such agencies
are servants of the public.
All agencies should adopt a presumption in favor of
disclosure, in order to renew their commitment to the
principles embodied in FOIA, and to usher in a new era
of open Government. The presumption of disclosure should
be applied to all decisions involving FOIA.
-
Make
available memoranda and opinions issued by the Department
of Justice OLC
Grade: B | Status: In Progress, but
promising
Recommendation
(Make OLC Opinions Public): "Past and future memoranda
and opinions issued by the Department of Justice Office
of Legal Counsel should be made available to the public
to the maximum extent possible. In addition, public
release early in your administration of some of the
more controversial OLC opinions governing interrogation
policy and warrantless wiretapping (redacted, if necessary,
to protect sources and methods) would help assure Congress
and the American people that the new administration
is committed to transparency and the rule of law."
Action: The release of the torture
memos and other withdrawn memos from the Bush era is
an excellent step in the right direction. There remain
other memos related to the CIA detention and interrogation
program that should be declassified and withdrawn. In
addition, the administration has not yet declassified
and withdrawn OLC memoranda supporting the warrantless
wiretapping program. The Obama administration has yet
to indicate whether it will support legislation such
as the OLC Reporting Act, which would set standards
for the release of certain OLC memos. Because the nomination
of Dawn Johnsen to head the Office of Legal Counsel
has been held up in the Senate, it is too early to tell
whether promises of a new openness will be fulfilled.
-
Revoke
Executive Order 13233, which limited public access to
presidential records
Grade: A | Status: Complete
Recommendation
(Presidential Records): "The new administration
should revoke Executive Order 13233, issued in November
2001. This executive order limited public access to
presidential records by allowing former presidents and
their heirs to block access to presidential records,
and by creating a new vice presidential privilege. Revoking
it would simply give effect once again to the longstanding
regulations of the National Archive and Records Administration
governing the release of presidential records."
Action: On January 21, 2009, with his
first executive order as President of the United States,
President Obama revoked Executive Order 13233.
Detention
and Interrogation Policy
-
Enforce
a ban against torture & establish a standard of humane
detainee treatment
Grade: A | Status: Complete
Recommendation
(Torture): "The new administration should express
its unqualified commitment to enforcing the ban against
torture and cruel, inhuman and degrading treatment,
and should establish as a matter of policy a single,
government-wide standard of humane detainee treatment.
I have supported efforts in Congress to make the Army
Field Manual on Human Intelligence Collector Operations
that standard. The new administration should revoke
all existing orders and legal opinions authorizing cruel
interrogations, including Executive Order 13440 and
any relevant opinions of the OLC."
Action: On January 22, 2009, President
Obama issued an executive order revoking Executive Order
13440 and any relevant opinions of the OLC. The new
executive order stated:
"Effective immediately, an individual in the
custody or under the effective control of an officer,
employee, or other agent of the United States Government,
or detained within a facility owned, operated, or controlled
by a department or agency of the United States, in any
armed conflict, shall not be subjected to any interrogation
technique or approach, or any treatment related to interrogation,
that is not authorized by and listed in Army Field Manual
2-22.3 (Manual). Interrogation techniques, approaches,
and treatments described in the Manual shall be implemented
strictly in accord with the principles, processes, conditions,
and limitations the Manual prescribes. Where processes
required by the Manual, such as a requirement of approval
by specified Department of Defense officials, are inapposite
to a department or an agency other than the Department
of Defense, such a department or agency shall use processes
that are substantially equivalent to the processes the
Manual prescribes for the Department of Defense. Nothing
in this section shall preclude the Federal Bureau of
Investigation, or other Federal law enforcement agencies,
from continuing to use authorized, non-coercive techniques
of interrogation that are designed to elicit voluntary
statements and do not involve the use of force, threats,
or promises."
-
Provide
access to the Red Cross for any and all detainees held
in U.S. custody
Grade: A | Status: Complete
Recommendation
(Notification to Red Cross): "The new administration
should commit to providing timely notification of and
access to the International Committee of the Red Cross
for any and all detainees held in U.S. custody anywhere
in the world."
Action: On January 22, 2009, President
Obama issued an executive order stating:
"All departments and agencies of the Federal Government
shall provide the International Committee of the Red
Cross with notification of, and timely access to, any
individual detained in any armed conflict in the custody
or under the effective control of an officer, employee,
or other agent of the United States Government or detained
within a facility owned, operated, or controlled by
a department or agency of the United States Government,
consistent with Department of Defense regulations and
policies."
-
Close
the facility at Guantanamo Bay
Grade: B | Status: In
Progress
Recommendation
(Close Guantanamo): "The new administration should
close the facility at Guantanamo Bay, as you have pledged
to do. Closing Guantanamo raises a number of complex
questions, many of which were addressed in the hearing
submissions. I hope those submissions can serve as a
resource to your administration in addressing these
difficult issues. As you tackle the Guantanamo problem,
however, I urge you not to establish an entirely new
preventive detention regime based on concerns about
a very small number of difficult cases."
Action: On January 22, 2009, an executive
order issued by President Obama took effect. The order
stated:
The detention facilities at Guantánamo for individuals
covered by this order shall be closed as soon as practicable,
and no later than 1 year from the date of this order.
If any individuals covered by this order remain in detention
at Guantánamo at the time of closure of those detention
facilities, they shall be returned to their home country,
released, transferred to a third country, or transferred
to another United States detention facility in a manner
consistent with law and the national security and foreign
policy interests of the United States
-
Reject
the flawed military commission trial system being used
at Guantanamo Bay
Grade: C | Status: Incomplete,
but promising
Recommendation
(Military Commissions): "The new administration
should reject the flawed military commission trial system
being used at Guantanamo Bay."
Action: On January 22, 2009, President
Obama issued an executive order stating:
The Secretary of Defense shall immediately take
steps sufficient to ensure that during the pendency
of the Review described in section 4 of this order,
no charges are sworn, or referred to a military commission
under the Military Commissions Act of 2006 and the Rules
for Military Commissions, and that all proceedings of
such military commissions to which charges have been
referred but in which no judgment has been rendered,
and all proceedings pending in the United States Court
of Military Commission Review, are halted.
A separate executive order issued the same day set up
a Special Task Force on Detainee Disposition to consider
policy options for how to handle detainees in the future,
including Guantanamo detainees that a case by case review
determines cannot be transferred or released.
-
Develop
effective means to prevent rendition to countries that
torture
Grade: B | Status: Mostly Positive
Recommendation
(Rendition resulting in torture): "The new administration
should develop effective means of enforcing the ban
against rendering individuals to countries where they
have a credible fear of being tortured."
Action: On January 22, 2009, President
Obama issued an executive order to ensure practices,
"…do not result in the transfer of individuals
to other nations to face torture or otherwise for the
purpose, or with the effect, of undermining or circumventing
the commitments or obligations of the United States
to ensure the humane treatment of individuals in its
custody or control."
On April 9, 2009, CIA Director Leon Panetta announced,
consistent with the executive order, that the "CIA
retains the authority to detain individuals on a short-term
transitory basis. None have occurred since I have become
Director. We anticipate that we would quickly turn over
any person in our custody to U.S. military authorities
or to their country of jurisdiction, depending on the
situation." Director Panetta further stated that
"CIA officers do not tolerate, and will continue
to promptly report, any inappropriate behavior or allegations
of abuse. That holds true whether a suspect is in the
custody of an American partner or a foreign liaison
service."
Domestic
Surveillance and Privacy
-
Declassify
info about implementation of controversial provisions
of the Patriot Act
Status: Incomplete
Recommendation
(Declassification of Patriot Act implementation information):
"As an early demonstration of the new administration’s
commitment to transparency and cooperation with Congress,
I urge you to declassify basic information about the
implementation of controversial provisions of the USA
Patriot Act to allow more open consideration and debate
when that legislation is reauthorized in 2009. I can
discuss with your transition team in a classified setting
some of the information that I believe can be declassified
without compromising national security."
Action: On February 25, 2009, Assistant
Attorney General for the National Security Division
David Kris was asked at his confirmation hearing whether
he agrees that information discussed in a classified
setting “is important to the public debate” on the reauthorization
of the USA Patriot Act and whether he would consider
declassification. Kris responded "Yes, I will certainly
take a look at that if I am fortunate enough to be confirmed,
yes."
-
Support
changes to domestic surveillance authorities in Patriot
Act reauthorization
Status: Incomplete
Recommendation
(Patriot Act reauthorization): “The new administration
should support significant legislative changes to domestic
surveillance authorities as part of the 2009 Patriot
Act reauthorization process, including reforms to the
National Security Letter statutes and others. It should
commit to working collaboratively with Congress on this
legislation, rather than in the counter-productive adversarial
posture that the Bush administration has so frequently
adopted.”
Action: Significant discussions about
the 2009 Patriot Act reauthorization have not yet taken
place.
-
Cooperate
with a review of domestic intelligence activities and
authorities
Status: Incomplete
Recommendation
(Review of domestic intelligence): "I believe that
Congress should undertake a comprehensive review of
domestic intelligence activities and authorities to
assess the most effective ways to prevent a terrorist
attack and collect other critical intelligence while
also protecting the rights of Americans – and it will
be critical to have the cooperation of the new administration
if such a review goes forward. This review should include
an assessment of the threat inside the U.S., an evaluation
of all current laws and their implementation, and a
review of the respective roles of relevant agencies
and departments."
-
Support
significant legislative changes to the FISA Amendments
Act
Status: Incomplete
Recommendation
(FISA amendments): "The new administration should
support significant legislative changes to the FISA
Amendments Act to ensure that it is effective in combating
terrorism and collecting foreign intelligence while
also protecting the privacy of innocent Americans. At
the same time, the new administration should incorporate
more privacy protections – such as stronger minimization
procedures to limit the use of information gathered
about Americans – into its implementation of the legislation.
I can make more specific suggestions in a classified
setting for important changes in implementation that
can be made by the executive branch without congressional
action."
Action: On February 25, 2009, David
Kris, Assistant Attorney General for the National Security
Division testified at his confirmation hearing at the
Senate Judiciary Committee that, based on classified
information provided to him, he had an “increased desire
to, if I were to be confirmed, to get to the bottom
of the FISA amendments act.” Problems with the implementation
of the statute identified by Senator Feingold have not
been resolved. Discussions about legislative fixes to
the act have not occurred.
-
Reconsider
the new Attorney General Guidelines governing FBI investigations
Status: Incomplete
Recommendation
(Attorney General Guidelines): "The new President
and Attorney General should reconsider the new Attorney
General Guidelines governing FBI investigations that
went into effect on December 1, 2008, to make sure the
FBI is devoting its limited resources to the greatest
threats and not wasting its time investigating people
who have done nothing wrong. In particular, investigations
based on ethnic or racial profiling or the First Amendment-protected
activities of the targets should not be countenanced."
Action: At his confirmation hearing,
Attorney General Holder made a commitment to Sen. Feingold
to take a close look at the Guidelines early in his
tenure and consider whether changes should be made.
No public action on this commitment has yet been announced.
Conclusion
While there is clearly more
work to be done, in a number of important areas, the new administration
has taken significant steps toward restoring the rule of law.
Based on the recommendations generated by the September 16th
Rule of Law hearing, the Obama administration’s actions on
detention and interrogation policy have yielded the most positive
results. The administration has not yet established a clear
record on domestic surveillance and privacy, and may not until
Congress takes action on measures such as the USA PATRIOT
Act and the FISA Amendments Act.
The administration’s actions on excessive government secrecy
have yielded mixed results. The administration has made, or
has indicated it will make, more information available to
the public including presidential records, information requested
through FOIA, and OLC memos, as evidenced by the disclosure
of memos regarding the CIA’s enhanced interrogation program.
But the administration’s record on the state secrets privilege
is troubling.
The Obama administration has made a clear break with the recklessness
of the Bush administration, and the swift actions that President
Obama took in his first days in office were a triumph for
the rule of law. But as evidenced by the report, the job of
fixing the damage done to our Constitution during the previous
administration is far from finished and must continue to be
a priority.
Get more information on Senator
Feingold's September
2008 hearing and December 2008 letter
to Obama.
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