You are herecontent / Conyers Backs Prosecution (And Other Measures), Releases Report His Staff Has Been Working on for Years
Conyers Backs Prosecution (And Other Measures), Releases Report His Staff Has Been Working on for Years
Remember all those months in which Chairman John Conyers' House Judiciary Committee staff refused to impeach but kept busy writing his next book. Well, here it is: a bitter sweet thing. It includes three recommendations, and the third one is pretty good:
3. The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance. This criminal investigation should, for the first time, ascertain and critically examine the facts to determine whether federal criminal laws were violated. It may be appropriate for certain aspects of the factual investigation by the prosecutor to await pertinent reports by the Inspectors General or information developed by any Blue Ribbon Commission or Select Committee. As part of this process, the incoming Administration should provide all relevant information and all necessary resources to outstanding Justice Department investigations, including with respect to the U.S. Attorney removals, the politicization of the Civil Rights Division, and allegations of selective prosecution. Congress should also consider extending the statute of limitations for potential violations of the torture statute, war crimes statute, laws
prohibiting warrantless domestic surveillance, or for crimes committed against persons in United States military custody or CIA custody to ten years.
Reason: Among other things, documented incidents of grave abuse of detainees at various detention facilities including Abu Ghraib and Guantanamo Bay and the extraordinary rendition of terror suspects to countries where they have been tortured, and the implementation of warrantless surveillance inside the United States, raise credible concerns that criminal laws may have been violated.1579 At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law.1580 Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law.1581 Thus far the Attorney General has similarly refused to appoint a special counsel to investigate whether the practice of extraordinary rendition and, in particular whether the extraordinary
rendition of Canadian citizen Maher Arar, violated the law. Similarly, there remains a serious question as to whether the warrantless domestic surveillance engaged in as part of the so-called “Terrorist Surveillance Program” prior to January 2007, violated the law.1582 It would seem that all or part of the above-described conduct meets the relevant requirements under federal regulations for the appointment of a special counsel (28 CFR 600.1),
in that (i) a criminal investigation is warranted (e.g., waterboarding and warrantless domestic surveillance appear to violate criminal laws); (ii) the investigation would present a conflict of interest for the Justice Department (e.g., some of the potentially culpable parties have worked for or with the Department); and (iii) appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).
Here's the press release, a link to the full report, and key sections with commentary:
Judiciary Chairman Conyers Issues Report Documenting Bush Abuses, Calling For Further Committee Investigation, Blue-Ribbon Panel, and Criminal Probes
(Washington, D.C.) -- Today, House Judiciary Committee Chairman John Conyers, Jr. released a nearly-500 page report documenting numerous abuses and excesses of the Bush Administration. The Report, titled "Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush," contains 47 separate recommendations designed to restore the traditional checks and balances of our constitutional system. Recommendations include calls for continued Committee investigation, a blue ribbon commission to fully investigate Administration activities, and independent criminal probes.
"Even after scores of hearings, investigations, and reports, we still do not have answers to some of the most fundamental questions left in the wake of Bush's Imperial Presidency," Conyers said. Pointing to allegations of torture and inhumane treatment, extraordinary rendition, warrantless domestic surveillance, the Valerie Plame Wilson-leak, and the U.S. Attorney scandal, Conyers continued, "Investigations are not a matter of payback or political revenge - it is our responsibility to examine what has occurred and to set an appropriate baseline of conduct for future Administrations."
In addition to the set of recommendations, the report contains a Foreword by Chairman Conyers and detailed discussions of: the Administration's legal approach to presidential power; the politicization of the Department of Justice; the Administration's far-reaching assaults on individual liberty (including torture, extraordinary rendition, and warrantless domestic surveillance); the misuse of Executive Branch authority; the Administration's retribution against its critics; and the Administration's excessive secrecy, noncompliance with congressional oversight, and manipulation of pre-Iraq War intelligence.
The full report can be found Here.
Conyers' earlier report from 2005 with update in 2006 can be found Here.
The new report covers a lot of the same ground as the old one, but omits the war, which was the single largest topic of the old one. Is the war no longer a concern because it's old, or because it's ongoing?
The new report contains 30 pages of recommendations, which is exactly 30 pages more than the recent report on torture from the Senate Armed Services Committee. While Conyers' committee sees its primary function as writing reports, its reports do recommend things. Many of the recommendations resemble those of three years ago (none of which have yet been acted upon), with some twists. Here is the full 30 pages, with commentary:
Section 6 – Policy Recommendations
Discussed below is a comprehensive set of 47 recommendations designed to respond to the abuses and excesses of the Bush Imperial Presidency. They correspond to the topics discussed in more detail in sections one through five of this report, although a short explanation of the reasons for each recommendation is included below. Some of these recommendations will require congressional action, while others can and should be implemented promptly by executive action by the incoming Obama Administration.
1. The Congress and the Judiciary Committee should pursue document and witness requests pending at the end of the 110th Congress, including subpoenas, and the incoming Administration should cooperate with those requests. The Committee’s outstanding requests include: (i) subpoenas to Harriet Miers and Josh Bolten for testimony and documents relating to the politicization of the Department of Justice and the U.S. Attorney firings; (iii) a subpoena to Karl Rove for testimony relating to the politicization of the Department of Justice and the U.S. Attorney firings; (iii) a subpoena to the Republican National Committee for documents relating to the politicization of the Department of Justice and the U.S. Attorneys firings; (iv) a subpoena to Attorney General Mukasey for documents regarding selective prosecution, undisclosed OLC memoranda concerning national security and related issues, and unredacted FBI reports of interviews with President Bush, Vice President Cheney, and other White House officials concerning the unauthorized disclosure of Valerie Plame Wilson’s identity; (v) the unredacted notes of FBI Director Mueller relating to the 2004 hospital visit at Attorney General Ashcroft’s bedside and the Terrorist Surveillance Program; (vi) information regarding the Justice Department’s arrangements to pay for former Attorney General Gonzales’ legal fees stemming from the pending class action lawsuit relating to allegations of politicized hiring; and (vii) e-mails and documents pertaining to the FBI whistleblower claims of Bassem Youssef and Michael German.1576
Hell yes! But -- before we say Hell yes! -- note the language: "pursue ... requests pending." There is a difference between continuing the endless court process that attempts to have the courts enforce subpoenas, issuing new but identical subpoenas for the new Justice Department to enforce, and issuing new but identical subpoenas for Congress to enforce itself through the Capitol Police. Conyers appears to have the first of these three options in mind. The merit of it would be to establish that courts say Bush was wrong. But, of course, we know that, and the risk is of having courts say the opposite. The downside is more delay and a continued entrenchment of the idea that Congress won't enforce its own subpoenas, along with the idea that Congress just wants delays, not actual accountability. Missing from this -- aside from a recommendation that all committees in both houses reissue their subpoenas -- is the penalty that was deemed appropriate for Richard Nixon's refusal to comply with a subpoena: impeachment ... or any other penalty whatsoever.
Reason: The Bush Administration has relied on excessively broad claims of executive privilege and immunity from subpoena to obstruct congressional oversight of the Administration’s operations and activities. While a new Administration is soon to take office, critical questions about the matters under investigation remain unanswered. No president should be allowed to run out the clock on important congressional oversight in this fashion. While executive confidentiality may be necessary in limited circumstances to protect the content and candor of counsel to the president, the principle has been abused. Left unresolved, this dispute involving the Judiciary Committee and the Congress could set a dangerous precedent whereby future administrations could avoid congressional inquiry simply by refusing to provide documents and waiting out the end of the presidential term. The executive would then effectively be able to erase one of the checks held over it by the legislative branch.1577
Exactly right. But is placing the power of the Congress at the mercy of the executive branch to enforce, and then at the mercy of the judicial branch when the executive branch fails the ideal way to restore power? Of course not. Ideal, would be inherent contempt, which is actually addressed in Recommendation #35 below but not made use of here. Second best would be using the new Justice Department immediately without delay. Third best is pursuing the court case. And the third best option could be pursued at the same time as one of the others.
2. Congress should establish a Blue Ribbon Commission or similar panel to investigate the broad range of policies of the Bush Administration that were undertaken under claims of unreviewable war powers, including detention, enhanced interrogation, ghosting and black sites, extraordinary rendition, and warrantless domestic surveillance. This Commission should have subpoena power, the power to take depositions, and the right to compel testimony or seek access to the courts to enforce subpoenas for hearing or deposition testimony or for documents. The president should order full cooperation by all present and past federal employees with requests for information from this Commission, and, to the extent possible, waive privileges, including privileges that may be asserted by prior Administration officials, that would otherwise impede the fact-finding process.1578 Chairman Conyers introduced H.R. 104 on the first day of the 111th Congress, January 6, 2009, to provide for such a commission.
Recommendation #2 is at odds with recommendation #3 below. While this might allow congressional Democrats to run election campaigns against Bush and Cheney yet again, even though those two will have been out of office for two years, it's not clear that it would do much else that would be positive.
The problem with pursuing "truth" is that there are always more tantalizing details out of reach, and there always will be. We'll never know everything about what Bush and Cheney and gang have done to us. We should strive to learn all that we can, but that task should not distract us from the fact that the President of the United States openly confesses to authorizing torture, warrantless spying, and other crimes, and that if a judicial and penal system is to have any deterrent value it is to be found in prosecuting and punishing crimes. Moreover, allowing publicly known crimes to go unpunished tends to have the opposite effect of encouraging future violations.
Those who suggest that we need to learn whether torture was authorized, for example, should read the recent report from the Robert Jackson Steering Committee, read the recent report from the Senate Armed Services Committee, or simply flip on a television. A commission is not needed to unearth information for the sake of prosecutions, because sufficient information for conviction is already in the public realm. And if anything is likely to unearth more information, it is a prosecution.
A commission with no power to punish anyone except through shame is powerless in an age of shamelessness. The commission's subpoenas would be enforced through the courts, allowing the process to be dragged out well beyond a year and a half, or allowing witnesses to refuse compliance. All of this delay would simply serve to bolster claims that the crimes of the past eight years are unimportant because in the past. And if the commission offered criminal immunity to witnesses in order to entice them to testify, then its result would be permanently blocking prosecutions in the name of revealing the "truth."
Moving the powers of Congress, which refused to impeach, and the powers of the Justice Department, which may refuse to prosecute, to an unelected commission would divorce this project from both the will of the people and the laws of the land. Congress has effectively lost the power of subpoena by failing to use its inherent power of contempt to incarcerate recalcitrant witnesses. Relying on the courts and creating separate commissions designed to rely on the courts does nothing to restore the rightful powers of the first branch of our government. Instead, Congress should reissue all outstanding subpoenas (not just continue arguing in the courts for enforcement of the old ones), issue new ones as desired, and itself enforce any that the new Justice Department does not. If Senator Ron Wyden is serious about subpoenaing more torture evidence, he should make sure that his committee does so and enforces the subpoenas. This won't take a year and a half, but how ever long it does take should be of interest to historians more than prosecutors, who should move ahead immediately without awaiting any superfluous information.
A prosecutor should be "special" or "independent," because nonpartisanship is not the same as bipartisanship. A commission made up of hesitant Democrats and cut-throat Republicans does not place the law or democratic representation above partisan goals. A truly independent prosecutor would be loyal to the law, not the concerns of any party. If Obama wants to minimize Republicans calling him bad names he should create an independent prosecutor, not support a bi-partisan commission.
Fortunately, activist groups that have been lobbying congress members for a truth and reconciliation commission have been getting nowhere. The idea is incredibly unpopular in Congress. In fact, while 56 members of Congress support creating a special prosecutor, only 11 support creating a commission. And more visitors to President elect Obama's website support creating a special prosecutor than support anything else whatsoever.
While our nation has needed some reconciliation for a generation or more, and while some of us support violations of the law if accompanied by fear mongering and some of us do not, we have not been fighting a civil war. We have not been slaughtering each other. We are not so overrun with criminals that no court system could possibly process them all. We are simply in a situation in which the top elected officials in the land and a few dozen of their top staff and advisors have committed gross violations of the law and, in most cases, documented their own crimes in writing. Should we be reconciled with that?
Would placing the law above the wishes of the least popular president and vice president in history, thereby responsibly limiting his own powers, be politically disadvantageous to the new president? If you believe that one, there's no amount of truth that can ever set you free.
Reason: At present, information concerning the Bush Administration’s policies that have impacted civil liberties – such as its detention, interrogation, ghosting, rendition, and warrantless domestic surveillance policies – has emerged in somewhat limited internal investigations, a few press articles and some self-serving public statements or publications, and the disclosure of a limited set of documents. While there have been some important Committee investigations on particular matters of controversy, there has been no systematic effort to ascertain the pertinent facts as to the formulation and implementation of these policies. The American people and Congress must have a more comprehensive understanding of the facts and circumstances that resulted in the policies and practices of the Bush Administration by which it asserted that the president could exercise uncheckable and unreviewable powers as Commander in Chief in spheres of action that directly impacted the Constitutional rights of United States citizens. Previous blue-ribbon panels, such as the “National Commission on Terrorist Attacks Upon the United States” (the “9/11 Commission”) have helped inform and educate the public and the Congress, as have congressional “select committees” such as the Select Committee to Study Government Intelligence Activities (the “Church Committee”), the respective “House Select Committee to Investigate Covert Arms Transactions with Iran” and the “Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition” (the congressional “Iran/Contra Committees”), and the Senate Select Committee on Presidential Campaign Activities (the Senate “Watergate” Committee, chaired by Senator Sam Ervin).
These are examples that make the proposal look worse than it already did, examples of committees widely seen as corrupt failures that did not enlighten us, but did -- in some cases -- block prosecutions and bestow immunity on criminals. But there's no need to forego investigations: they would be part of the work of any independent prosecutor.
3. The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance. This criminal investigation should, for the first time, ascertain and critically examine the facts to determine whether federal criminal laws were violated. It may be appropriate for certain aspects of the factual investigation by the prosecutor to await pertinent reports by the Inspectors General or information developed by any Blue Ribbon Commission or Select Committee. As part of this process, the incoming Administration should provide all relevant information and all necessary resources to outstanding Justice Department investigations, including with respect to the U.S. Attorney removals, the politicization of the Civil Rights Division, and allegations of selective prosecution. Congress should also consider extending the statute of limitations for potential violations of the torture statute, war crimes statute, laws prohibiting warrantless domestic surveillance, or for crimes committed against persons in United States military custody or CIA custody to ten years.
This is exactly right, but it does need to be a special or independent prosecutor who is truly independent of partisan influence from ANY party. The Senate Judiciary Committee should make this a condition of confirming Eric Holder as attorney general.
Reason: Among other things, documented incidents of grave abuse of detainees at various detention facilities including Abu Ghraib and Guantanamo Bay and the extraordinary rendition of terror suspects to countries where they have been tortured, and the implementation of warrantless surveillance inside the United States, raise credible concerns that criminal laws may have been violated.1579 At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law.1580 Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law.1581 Thus far the Attorney General has similarly refused to appoint a special counsel to investigate whether the practice of extraordinary rendition and, in particular whether the extraordinary rendition of Canadian citizen Maher Arar, violated the law. Similarly, there remains a serious question as to whether the warrantless domestic surveillance engaged in as part of the so-called “Terrorist Surveillance Program” prior to January 2007, violated the law.1582 It would seem that all or part of the above-described conduct meets the relevant requirements under federal regulations for the appointment of a special counsel (28 CFR 600.1), in that (i) a criminal investigation is warranted (e.g., waterboarding and warrantless domestic surveillance appear to violate criminal laws); (ii) the investigation would present a conflict of interest for the Justice Department (e.g., some of the potentially culpable parties have worked for or with the Department); and (iii) appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).
This is exactly right, although it could be strengthened and expanded. It could be strengthened by dropping the pretense that there is any doubt crimes have been committed. It could be expanded to include numerous other crimes.
Politicization of the Department of Justice
4. The incoming Administration should review and consider strengthening the policy limiting contacts concerning prosecution and enforcement matters. The incoming Administration should review and strengthen as appropriate the current policy limiting contacts between the White House, the Department of Justice, and Members of Congress regarding prosecution and civil enforcement matters.
Well, yes, to say the least. Excellent issue to be raising. Something closer to, but still remote from, an appropriate solution follows in the next six recommendations below.
Reason: Attorney General Mukasey deserves credit for revising the Ashcroft/Gonzales policy under which a broad range of individuals within the White House were authorized to communicate with Department personnel about criminal prosecution or civil enforcement matters. Further review is warranted, however, to assess whether the current policy has appropriately limited these channels of communication. In addition, at present, this policy appears to be contained solely in a memorandum from Attorney General Mukasey to Department of Justice officials, including United States Attorneys.1583 In past administrations, however, Department policy regarding contacts with the White House or members of Congress on prosecution and civil enforcement has additionally been stated in formal communications to congressional Committee Chairs and the White House Counsel,1584 and the incoming Administration should consider whether such additional steps are warranted.
Or ... Congress could.
5. The incoming Administration should continue the customary practice of replacing U.S. Attorneys at the outset of the Administration. The Administration should accept the resignation of current U.S. Attorneys, as has been customary for incoming administrations when a change of party occurs, and should promptly appoint new U.S. Attorneys to all positions nationwide except where traditional recommenders urge that retaining current U.S. Attorneys would be in the public interest.
Yes, and not because it's traditional, but because of who the Bush-Cheney-Rove gand hired and how and why.
Reason: The Bush Administration’s politicization of the United States Attorney corps has shaken the public’s faith in the fairness of our federal criminal justice system. The Administration’s refusal to provide a full public accounting of these issues to Congress or to the public has exacerbated the problem and cast an unfortunate cloud over the entire U.S. Attorney corps. In these circumstances, it is imperative to have a clean break and appoint a new slate of respected federal prosecutors through an appropriately thorough and professional process. In particular cases where traditional recommenders urge that current U.S. Attorneys be retained and the president concludes that doing so would be in the public interest, exceptions to this process may be appropriate. The Bush Administration, it should be noted, has already facilitated this process by requesting all political appointees to submit such letters of resignation “consistent with past practice.” 1585
6. Congress should expand Justice Department Inspector General jurisdiction. Congress should consider legislation that would clarify and expand the jurisdiction of the Department of Justice’s Office of the Inspector General to allow investigation of misconduct by senior Justice Department officials and United States Attorneys, such as the Amendment to H.R. 928 on this subject offered by Chairman Conyers and passed by the House during the 110th Congress.1586
Reason: Under current law, charges of political interference with prosecution decisions fall within the jurisdiction of the Department’s Office of Professional Responsibility (OPR) and may not be investigated by the Department’s Inspector General. Thus, the highly controversial Siegelman case and other matters raising concerns about political interference with prosecutorial decision-making are being investigated solely by OPR. Because OPR is answerable to the Attorney General, while the Inspector General has statutory independence, such matters are often better investigated by OIG. Accordingly, the next Administration and the Congress should support legislation allowing OIG to investigate allegations of misconduct by senior Department officials and United States Attorneys. This would strengthen the Department’s ability to address such matters internally and enhance the credibility of Department investigations of these sensitive issues.
7. The incoming Administration should improve the Executive Office of Immigration Review (EOIR) and the functioning of the immigration courts. The next Administration should ensure the professionalism and quality of the immigration courts, including the review process, by: increasing the number of immigration judges and law clerks; filling judicial vacancies promptly; providing meaningful and ongoing education and training for judges; addressing technology issues; and engaging in a review of Board of Immigration Appeals practices, such as affirmances without opinion and the implementation of the 2002 “streamlining” regulations.1587 An expert roundtable to consider further administrative and legislative improvements should be convened.
Reason: A Joint Report by the Department’s Inspector General and Office of Professional Responsibility found substantial and “systematic” politicization in the selection of immigration judges, in violation of the law.1588 The recommended improvements would minimize the substantive impact of this improper politicization and enhance the performance of EOIR and the immigration courts.1589
8. The Department of Justice should rescind the policy prohibiting career voting section employees from making recommendations as to whether the Department should object to proposed voting changes. The Attorney General should reinstate the policy followed prior to 2005 and allow recommendations from career staff as to whether the Department should object to proposed voting changes from state and local jurisdictions under Section 5 of the Voting Rights Act. It should also be made clear that career staff need not artificially limit their written analysis to the facts surrounding specific Section 5 submissions.
Reason: Under Section 5 of the Voting Rights Act, the Department of Justice reviews proposed changes to voting practices and procedures in jurisdictions with a history of voting discrimination, and can object to and make difficult to enact changes that have the purpose or effect of harming minority voting rights. As discussed in Section 1, in response to significant controversy concerning the Department’s decision not to object to a Georgia law requiring photo identification to vote, a decision that some charged had involved political considerations, it was reported that the Department’s political leadership instituted a new policy in 2005 requiring that staff members who review Section 5 submissions limit their written analysis to the facts of specific cases and refrain from making any recommendations as to whether the Department should object to the change.1590 Informal reports indicate that ths policy remains in effect. In addition to the concern about politicization of Justice Department decisions, such a policy impairs the ability of the Justice Department to effectively analyze proposed voting changes and protect minority voting rights and should therefore be eliminated.
9. The Department of Justice should revise the Federal Prosecution of Election Offenses Manual. The Attorney General should reinstate language contained in the “Policy and Procedural Considerations” section of the January 1995 manual designed to prevent partisan abuse of election law enforcement by the Department. The Department should restore language warning against investigating allegations of voter fraud shortly before an election, reinstate the earlier cautionary policy against pursuing isolated instances of individual voter fraud (as compared to large scale cases of voter suppression), and reinstate the list of pre-election investigatory precautions (including those with respect to voter fraud) to be followed by prosecutors.
Reason: A federal criminal investigation initiated close to an election runs the risks of chilling legitimate voting participation and campaign activities, particularly in jurisdictions where there is a history of disfranchisement efforts targeting racial and ethnic minorities. As discussed in Section 1, moreover, actual and attempted politicization of voter fraud cases during the Bush Administration, such as the cases brought in 2006 by acting U.S. Attorney Brad Schlozman in Missouri, clearly warrant the reinstatement of language designed to help prevent partisan abuse of election law enforcement by federal prosecutors. In addition, federal election fraud prosecutions should involve a systemic and organized pattern of abuse, since individual cases typically have a minimal impact on the integrity of the voting process and generally represent an unwise use of Departmental resources.
10. Congress should enact comprehensive election reform legislation. Among other things, the legislation should: (i) prohibit deceptive practices and voter intimidation;1591 (ii) prohibit the practice of voter caging (including caging based on mortgage foreclosure lists) and establish circumstances under which voters can properly be challenged at the polls;1592 (iii) establish a uniform system for counting provisional ballots; (iv) clarify that non-matches between a registration list and drivers license or Social Security information under HAVA is not an automatic trigger for removing voters from voter registration rolls; (v) make clear that voters without photo identification can vote if they sign an affidavit confirming their identity; (vi) eliminate disparities in the allocation of voting machines and poll workers among a state’s precincts; (vii) mandate early voting and election day registration procedures; (viii) provide uniform standards for vote recounts; and (ix) prohibit voting machine companies that manufacture or sell voting equipment to state and local governments from engaging in political activities.1593 Chairman Conyers introduced a comprehensive election reform bill, H.R. 105, the Voter Opportunity and Technology Enhancement Rights (VOTER) Act of 2009 on the first day of the 111th Congress, January 6, 2009.
All good, but missing that key element of hand-counted paper ballots. And what's missing from all of these recommendations and many that follow is prosecution of crimes not discussed in #3 above.
Reason: Voting irregularities and improprieties were reported throughout the country during the 2000 and subsequent presidential elections. As discussed in Section 1, actions of the Justice Department since then have weakened voting rights. Many barriers prevented thousands of people from voting. Voter registration was made more difficult. Officials misconstrued, misapplied and abused identification and provisional-ballot rules. In some areas, there were few voting machines in heavily populated minority areas, leading to unacceptable wait times, and there were suspicious voting-machine “errors.” There were also numerous allegations of voter intimidation, voter deception, and vote suppression. Attempts were made to improperly challenge voters based on mass mailing or “caging” tactics, and to disqualify voters because of non-matches between information on registration lists and other data bases, contrary to the law.1594 On the positive side, experience with early voting and same day registration has demonstrated that these methods can help prevent a number of these voting difficulties. Numerous reports have documented these problems and potential solutions.1595 Comprehensive federal legislation including the specific reforms listed above, most of which have been included in previous federal election reform proposals, would promote uniformity of procedures and help ensure that all voters who are eligible to vote are able to vote, and have their vote properly counted in Federal elections.
Assault on Individual Liberty: Detention, Enhanced Interrogation, Ghosting and Black Sites, Extraordinary Rendition, Warrantless Domestic Surveillance, and National Security and Exigent Letters
11. The Department of Justice should reform its Office of Legal Counsel. The Attorney General should adopt rules to ensure that the Office of Legal Counsel provides the high quality, professional and independent legal advice that has long been its hallmark. Accordingly, the incoming Administration should formally adopt the well-stated “Principles to Guide the Office of Legal Counsel,” proposed on December 21, 2004, by 19 former OLC attorneys.1596 These principles address matters such as the appropriate standards of professionalism and independence that should guide OLC attorneys, the importance of considering and addressing alternative legal arguments, the importance of conducting an effective interagency review of sensitive policy opinions, and related matters. They require public disclosure of opinions that conclude that the executive branch may disregard a federal statutory requirement, and call for timely disclosure of most OLC opinions. Furthermore, all current legal opinions should be reviewed, flawed opinions should be withdrawn, and non-classified opinions should be publically disclosed as appropriate. In the future, classified opinions should be made available to the House and Senate Judiciary Committees, to ensure effective oversight of the Department of Justice. Finally, if necessary, Congress should consider legislation such as H.R. 6929, the “Office of Legal Counsel Reporting Act of 2008,” introduced by Representative Brad Miller in the 110th Congress, which would specifically require that OLC opinions be disclosed to Congress and that the Comptroller General review OLC practices.
Reason: The Department of Justice’s Office of Legal Counsel has been at the center of providing the legal rationale for unreviewable Commander in Chief powers to justify the Bush Administration’s policies regarding torture and interrogation (among other areas), and other executive usurpations of power. Traditional lines of communication between the White House and OLC broke down during the Bush Administration, so that White House aides worked too closely with lower tier OLC officials such as John Yoo to craft legal opinions that were politically or operationally useful to the Administration but which were not legally sound. These actions undermined OLC in a way that has harmed the nation, and in particular has damaged our intelligence services, which received erratic and unreliable guidance on the most sensitive of matters. It is antithetical to the principles of our Constitution that the president should claim secret powers supported by secret interpretations of the Constitution. In fact. it is not fully known what body of “secret law” sits on the secret books of the Department of Justice and other Executive Branch offices. Documents such as those advising interpretations of the law that have been found unconstitutional by courts – such as the memoranda which concluded that the Geneva Conventions did not apply to the detainees – should be explicitly revoked.
12. The incoming Administration should close the U.S. prison at Guantanamo Bay. The President by executive order should close the Guantanamo Bay detention facility and dismantle the existing military commission system. The al Qaeda detainees accused of hostile conduct should, as a general matter, be charged with federal offenses and tried in the United States courts. Every effort should be made to find foreign countries to which other detainees who cannot be tried (either for lack of usable evidence or for other reasons), should be sent.1597 In rare circumstances and as a last resort, detainees – such as the Chinese Uighurs1598 – may be released into the United States.1599 The statute of limitations for terrorism related offenses should be increased from 8 to 10 years to minimize the prospect that the fact that the individuals have been held in Guantanamo (or elsewhere in military custody) would impede the ability to prosecute. Finally, Congress should conduct oversight and consider repealing the Military Commissions Act if necessary.
Reason: The actions of the United States in taking into military custody persons from around the world and sending them blind-folded and shackled to a remote island prison, where they have been subjected to harsh interrogation, has brought world-wide condemnation, especially where the processes for determining whether they should be so detained lacked procedural fairness. Indeed, the Bush Administration chose to hold the detainees at Guantanamo Bay on the assumption that there would be no institutions (such as the courts) to second-guess decisions as to who should be detained, for how long, and under what conditions. Even though the Supreme Court has required the Administration to use procedures that permit judicial review of the detention determinations and has permitted the detainees access to federal courts to pursue habeas corpus claims, approximately 250 prisoners are still held at Guantanamo. The prisoners at Guantanamo cannot be neatly categorized. Some are al Qaeda fighters who can and should be prosecuted and tried for criminal terrorist acts, including their involvement in terrorist conspiracies. Others, like the Chinese Uighurs, do not pose a threat to the United States. The majority are alleged to have fought against the United States in Afghanistan, and of this group, many appear to have been low-level fighters – and may not have committed prosecutable war crimes. Some were turned over to the United States by bounty hunters or others seeking rewards. David Hicks and Salim Hamdan have already been returned to Australia and Yemen respectively, and hundreds of others have been freed. Every diplomatic effort should be made to repatriate or find countries willing to accept prisoners who cannot be tried. In rare circumstances, the United States should be willing to accept some of the Guantanamo detainees. This is a small but necessary step as part of a process of convincing other allies to accept some of them as well. The costs of shutting down Guantanamo include the intense diplomatic efforts necessary to find countries willing to accept the prisoners upon their release and the devotion of judicial resources to try the al Qaeda prisoners or others for whom criminal prosecution is appropriate. However, the costs of maintaining Guantanamo are profound, and include the fact that its very existence serves as a recruiting motivation for future terrorists. Thus, notwithstanding the difficulties involved in closing Guantanamo, and recognizing that there are risks inherent in that process, the incoming Administration should do what is necessary to close Guantanamo.
13. The incoming Administration should require that all persons arrested in the United States be subject to civilian law enforcement procedures with requisite due process guarantees. This should include immediately taking steps to effectuate the transfer of Ali Saleh Kahlah al-Marri from military to civilian custody in order to charge him with federal terrorism-related offenses.1601 If Mr. al-Marri were to object to that transfer - for such act would moot out Supreme Court review - the Government should seek approval from the Supreme Court to move him, or seek a remand from the Supreme Court to the Fourth Circuit so that the Fourth Circuit can rule on its request to move him. At the same time, the Justice Department should request that the Fourth Circuit vacate its July 2008 opinion, in light of the fact that the litigation has been mooted by events, and, in particular, so that the Fourth Circuit opinion that upheld Mr. al-Marri’s military detention does not remain “good law” on this issue.1602
Reason: The detentions of Jose Padilla (an American citizen) and Ali Saleh Kahlah al-Marri (a lawfully admitted alien), each of whom was arrested in the United States and turned over to military custody upon the order of the President, constitute among the most extreme assertions of presidential power undertaken by the Bush Administration, and involve the Administration’s claim that the United States itself is a “battlefield” on which the president can exercise full military power. As a practical matter, this means the incoming President, through the Department of Justice, should take a dramatically different legal position on the issues associated with the on-going detention of Mr. al-Marri. That case is presently before the Supreme Court, where the Bush Justice Department has maintained that the president, either under powers granted him directly by the Constitution as Commander in Chief or granted by Congress under the AUMF, may order the indefinite military detention of Mr. al-Marri.1603 Mr. Al-Marri, with support of numerous amici, has challenged his detention in federal court, and maintained that the president has no such power under either authority.
14. The incoming Administration should end torture and abuse. The President should issue an executive order that ends the use of torture or cruel, inhuman or degrading treatment of persons in U.S. custody or control and prohibits the use – by any agency, including the Central Intelligence Agency – of any practice not authorized by the Army Field Manual on Intelligence Interrogations, including but not limited to waterboarding. One concrete step that the President should take toward that end is to formally rescind President Bush’s Memorandum of February 7, 2002, in which he concluded that as Common Article 3 of the Geneva Conventions does not apply to either al Qaeda or Taliban detainees.1604 If necessary, Congress should consider enactment of a bill that embodies the principles of H.R. 4114, the “American Anti-Torture Act of 2007,” introduced by Rep. Jerrold Nadler in the 110th Congress, which provided, among other provisions: “No person in the custody or under the effective control of the United States shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.”1605
This is unnecessary and blurs the fact that torture was always clearly and absolutely illegal. It does NOT need to be criminalized any more additional times. The laws need to be enforced.
Reason: Among the actions taken by President Bush that has most damaged the United States standing and credibility as a moral leader in the world, his decisions – through Vice President Cheney, David Addington, and others – to permit waterboarding of detainees and to subject them to cruel, inhuman and degrading treatment stands at or near the top. Former Secretary of State Powell has stated that “The world is beginning to doubt the moral basis of our fight against terrorism.”1606 To be clear, torture is currently banned under United States laws (under the anti-torture statute, the War Crimes Act, the Geneva Conventions, and the Detainee Treatment Act). It is an unfortunate state of affairs that these prohibitions have been called into doubt by the Bush Administration and its insistence that it may avoid these laws simply by redefining the term “torture.” For the incoming President to reassert America’s commitment to recognizing the prohibitions against torture and cruel, inhuman and degrading treatment should not suggest that there is any ambiguity in those prohibitions. Nonetheless, actions by the United States to again foreswear its intent to use torture or cruel, inhuman or degrading treatment will constitute an important first step to permit the United States to regain its international standing as a leader in the advocacy for human rights.
15. The incoming Administration should end the CIA program of secret detention and abusive interrogation. The incoming President should revoke Executive Order 13440 (issued July 20, 2007) and bring an immediate end to the CIA’s secret detention and interrogation program. Consistent with military guidelines and international law, the President should restore accurate accounting and reporting of all detainees, ensure that the International Committee of the Red Cross (ICRC) be notified of and granted access to all detainees,1607 publicly disclose the identities, fate, and whereabouts of all detainees currently or previously held in secret, and ensure that detainees are afforded the baseline substantive right to be free from torture or cruel, inhuman, and degrading treatment. Finally, Congress should conduct oversight and consider legislation if necessary. Reason: In September 2006, five years after he first secretly authorized it, President Bush admitted the existence of a secret CIA detention and interrogation program. Under this program, detainees were held incommunicado at secret prison sites – so-called “black sites” – and subject to aggressive interrogation, including waterboarding. In addition to holding detainees at secret facilities, the CIA also reportedly “ghosted” detainees within or among prison facilities in Iraq. Ghost detainees were not registered or processed as prisoners, allowing the CIA to avoid accountability for and documentation of their identity, whereabouts, and treatment. To date, the number of individuals held secretly remains unknown, but it is estimated that at least 100 individuals were held secretly by the CIA and that the whereabouts of two to three dozen remain unknown. While this program was suspended by President Bush in September 2006, a subsequent July 20, 2007, executive order appears to have revived it.1608 Holding prisoners in secret allows for torture and abusive detention and interrogation practices. It also undermines future efforts by the U.S. to demand ICRC access to U.S. personnel being held abroad and further undermines our moral standing in the world.
16. The incoming Administration should end the Bush Administration’s practice of the extraordinary rendition of terror suspects. The President should halt the rendition of terror suspects in circumstances where torture is likely and should direct a comprehensive, interagency review of U.S. rendition practices, including the use of assurances from receiving countries that a detainee will not be tortured. This should include ensuring that relevant agencies promulgate regulations to implement the legal obligation that the U.S. not transfer persons to countries where it is more likely than not that they will be tortured. Congress should conduct oversight hearings on the policy and consider legislation to limit the transfer of suspects from U.S. custody based in part on aspects or principles of H.R. 1352, the “Torture Outsourcing Prevention Act,” introduced by Rep. Edward Markey in the 110th Congress, which would make it illegal for the government to transfer detainees to countries that the State Department has substantial grounds to believe engage in torture or other cruel or degrading treatment, and S. 1876, the “National Security with Justice Act of 2007,” introduced by Sen. Joe Biden in the 110th Congress, which prohibits extraterritorial detention and rendition except in limited circumstances.
Reason: Following the September 11th terrorist attacks, the Bush Administration rendered individuals to countries – including Syria, Egypt, Jordan, and Morocco – where torture of persons identified as having ties to al Qaeda or terrorism was likely. These “extraordinary renditions” – the covert transfer of individuals to foreign states in circumstances where torture is likely – violate U.S. and international law.1609 While the exact number of individuals subjected to the Administration’s extraordinary rendition program remains unknown, the cases that have come to light have generated concern that the Administration has used the practice frequently,1610 and as a tool to avoid legal limits on – or criminal liability for – harsh interrogation.1611 The Bush Administration’s extraordinary rendition program has been condemned by some of the U.S.’s strongest allies, and U.S. agents have been indicted in Italy and Germany for their involvement in renditions from those countries.1612 The Administration asserts that it has met any obligation to prevent transfers in circumstances where torture is foreseeable because it has gotten assurances from foreign governments that individuals will not be tortured.1613 But press reports, congressional testimony, and the experience of individuals rendered to foreign countries indicate that such assurances are insufficient protection against torture and also raise troubling questions about whether these assurances have been obtained and relied upon in good faith by U.S. officials.1614 Any such assurances should comply with applicable legal and human rights standards, and appropriate federal agencies should carry out their obligations under the Foreign Affairs Reform and Restructuring Act of 1998 to adopt regulations that individuals should not be transferred to countries where it is more likely than not that they will be tortured.1615
17. The President, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Director of the National Security Agency should implement policies to ensure that there is no “reverse targeting” used under authorities created by the FISA Amendments Act of 2008. Such policies, whether resulting from legislation, amendments to Executive Order 12333 or internal guidelines and procedures, should make it clear that it is impermissible to acquire the communications of a U.S. person (who is protected by FISA) by targeting their acquaintances overseas (for whom a FISA warrant is not necessary). Such guidelines should prohibit reverse targeting when a significant purpose of the interception is to acquire an American’s communications. Moreover, the guidelines should require a warrant from the Foreign Intelligence Surveillance Court if the intercepted communications of a known U.S. person are disseminated outside of the collecting agency repeatedly, as this is an indication that the U.S. person may in fact be the target. Congress should conduct oversight and consider legislation if necessary.
"If"? The law violates our Bill of Rights and facilitates abuses and you want to ask presidents to refrain from using powers you give them?
Reason: The 110th Congress enacted the FISA Amendments Act of 2008 (FAA). This Act, while an improvement on the Protect America Act which had been enacted to update FISA in 2007, still lacks certain key protections against “reverse targeting” by members of the intelligence community (the intelligence components of the Director of National Intelligence, Central Intelligence Agency, National Security Agency, Department of Homeland Security, Department of Defense, Department of State, and Department of Justice). When Congress allowed the Executive Branch the ability to go to the FISC to obtain broad authorizations for overseas communications, concerns were raised that such broad powers could be used to engage in reverse targeting. Although the Administration had claimed that it would not engage in such practices, and recognized that reverse targeting would be illegal if it occurred,1616 guidelines and training programs are necessary to ensure that reverse targeting does not happen.
18. The President, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Director of the National Security Agency should implement policies to ensure that foreign intelligence surveillance is limited to targeted collection. The President should promulgate regulations and Executive Orders to dispel any concern that the FISA Amendment Act or other surveillance activities would allow bulk collection – the indiscriminate collection of all international communications into and out of the United States. Congress should conduct oversight and consider legislation if necessary.
Sure, the president "should" do lots of things, but why would he and all future presidents do them?
Reason: It has been reported that the Bush Administration’s secret wiretapping program involved not just the interception of foreign communications within the United States, but also the seizure and storage of masses of e-mail and other electronic traffic for future analysis.1617 During the debates on the FAA, Director of National Intelligence Mike McConnell denied that the United States had the capacity – let alone the desire – to engage in bulk collection, but he would not rule out bulk collection should technology develop to make such a dramatic seizure feasible.1618 Limitation of acquisitions – to circumstances in which a significant purpose of the acquisition of the communication is to obtain foreign intelligence information and in which at least one party is a specific individual target who is reasonably believed to be located outside of the United States – should serve to prevent such wholesale collection while preserving the ability to target persons overseas under the flexible authorities of the FAA. The method of the collection should not be broader than the parameters under which the interception is authorized. That is, if the intelligence community is only authorized to acquire communications of “a specific individual target,” it is unreasonable to undertake such an acquisition through the wholesale seizure of communications traffic.
19. The incoming Administration should ensure full implementation of Inspector General recommendations concerning the FBI’s use of NSLs. The FBI Director should complete implementation of the Inspector General’s 2007 recommendations, including adequately accounting for information acquired from NSLs; training agents in all 56 field offices; ensuring that agents continue to abide by Attorney General Guidelines to use the least intrusive techniques during their investigations; and fully addressing the problems pertaining to the hierarchical issues in the field offices between Special Agents in Charge (SACs) and Chief Division Counsel. 1619 Congress should conduct careful oversight in this area and, if necessary, consider legislation addressing the current problems with NSL usage, incorporating at minimum the pre-PATRIOT Act NSL issuance standard requiring “specific and articulable facts giving reason to believe that the information or records sought... pertain to a foreign power or agent of a foreign power;” providing the recipient of an NSL the right to challenge the NSL and its nondisclosure requirement; providing a cause of action to any person aggrieved by the illegal provision of records pertaining to that person as a result of an NSL issued contrary to law, placing a time limit on an NSL gag order and allowing for a court approved extension; and providing for minimization procedures to ensure that information obtained pursuant to an NSL regarding persons who are no longer of interest in an authorized investigation is destroyed, along the lines of H.R. 3189, the “National Security Letters Reform Act,” introduced by Rep. Jerrold Nadler in the 110th Congress.
"If necessary"? You want presidents to ignore bad laws and follow good recommendations? We could get rid of the Congress and have a think tank.
Reason: In 2007 and 2008, reports from the Justice Department’s Inspector General documented problems and abuses with the FBI’s use of national security letters, including: the use of exigent letters,1620 inaccurate and incomplete congressional reporting regarding the use of NSLs,1621 inaccurate reporting of possible Intelligence Oversight Board violations,1622 circumventing NSL statutes by issuing NSLs in impermissible contexts,1623 and indefinitely retaining personal information on individuals even if they were irrelevant to terrorism investigations.1624 In its 2008 report, the IG found that the FBI had made some progress in implementing its recommendations from the 2007 report, but that several recommendations were not yet implemented.1625 The incoming Justice Department and the Inspector General should ensure that the FBI adequately and fully implements the remaining recommendations and does not backtrack on any progress to date.1626 Legislation restoring the pre-PATRIOT Act NSL issuance standard would help eliminate the problems highlighted in the Inspector General’s reports pertaining to the acquisition and indefinite retention of information on American citizens who are not reasonably suspected of being involved in terrorism. Legislation could also help address concerns identified under Patriot Act provisions authorizing the FBI to impose blanket, indefinite, prior restraints on speech, strictly confining an NSL recipient’s ability to challenge the gag in court, and limiting judicial review of a gag order (making it difficult to determine whether the order violates NSL statutes, the Constitution, or other legal rights and privileges).1627 Statutory changes regarding minimization rules may also be needed to reduce the potential for the misuse of information acquired through NSLs and to ensure that NSLs capture information only on individuals who actually are the subjects of terrorism investigations.
20. The incoming Administration should withdraw the proposed Justice Department rule on criminal intelligence system operating policies and carefully review and revise as needed the Attorney General’s guidelines for FBI operations. The proposed Criminal Intelligence Systems Operating Policies rule, published in the summer of 2008, should be withdrawn and the process started from scratch because of serious concerns about its potential to improperly invade Americans’ privacy and other rights. Similar concerns warrant a careful re-examination of the Attorney General FBI guidelines to ensure that they strike the appropriate balance between effective law enforcement and the respect for civil liberties and individual rights.
Reason: The Department of Justice’s proposed rule on Criminal Intelligence Systems Operating Policies has generated significant controversy.1628 This rule appears to permit the collection of information by state and local law enforcement agencies regarding non-criminal (and constitutionally protected) activities and sharing that information with non-law enforcement agencies. The rule would also allow for the collection of information about organizations and individuals, resulting in potential violations of individuals’ First Amendment rights and the creation of McCarthy era-type “blacklists.” Additionally, the regulation would extend the retention period for information in criminal intelligence systems from five years to ten years and would allow for the tolling of the retention period during a person's incarceration. This could lead to the retention of inaccurate, obsolete, and otherwise unreliable information in the systems that could be used to wrongly accuse someone of a crime. The incoming Administration should withdraw the proposed rule and restart the rulemaking process so that a final rule in this area does not have these defects. In late 2008, the Bush Administration also issued FBI Domestic Investigation and Operations Guidance regarding the Attorney General Guidelines for Domestic FBI Operations, issued September 29, 2008. These Guidelines have generated significant concern, both as to their timing just before the end of the Bush Administration and their authorization of potentially intrusive techniques against Americans. For example, critics have raised significant questions about provisions that could give FBI field agents the authority to conduct some forms of physical surveillance and interviews without getting approval from or filing specific reports with their supervisors.1629 The FBI has indicated that the guidelines are to be reviewed in the fall of 2009. As part of that review, the incoming Administration should consider modifying the guidelines and the accompanying guidance as appropriate to ensure that they protect civil rights and civl liberties as well as promoting effective law enforcement.
21. The President should nominate and bring into operation the Privacy and Civil Liberties Oversight Board. The incoming President should appoint all members to the Privacy and Civil Liberties Oversight Board created by Congress and urge the Senate to hold prompt confirmation hearings for the candidates. Further, the President’s first budget proposal should contain sufficient funds to actually bring the board into existence as an effective entity.
Reason: This Board was created by the Intelligence Reform and Terrorism Prevention Act of 2004.1630 It was originally part of the White House but was made an independent agency in the Executive Branch pursuant to the Implementing Recommendations of the 9/11 Commission Act of 2007.1631 The Board’s mandate is to monitor the impact of U.S. government actions on civil liberties and privacy interests, and to advise Executive Branch officials to help ensure that such interests are appropriately considered in executive actions undertaken to protect against terrorism. It has five members who are appointed by the president and subject to confirmation by the Senate. The terms of its original members expired in January 2008. However, President Bush failed to nominate candidates for all seats on the board, and none have been confirmed by the Senate. As a result, the revised Board has never gone into operation.
22. The President should renew efforts to implement U.S. obligations under human rights treaties. The incoming President should reactivate the Interagency Working Group on Human Rights Treaties (replaced under the Bush Administration by the Policy Coordinating Committee on Democracy, Human Rights, and International Operations), which would create an open and transparent process for treaty reporting and consider compiling a comprehensive human rights compliance report on the U.S., similar to that compiled by the State Department on other countries.
Reason: The incoming Administration needs to reassert its commitment to the rule of law as well as send a clear message to the world that the United States will take a leadership role in promoting human rights at home and abroad. Since 1992, the United States has ratified only three major human rights treaties.1632 However, little oversight and few legislative initiatives have focused on codifying the rights and obligations under these treaties. Official U.S. action has been primarily limited to periodic reporting and review process activities by Geneva-based committees who monitor treaty compliance.
23. The incoming Administration should review and consider modifications to Bureau of Prisons use of authority under Special Administrative Measures. The incoming Administration should review how the Special Administrative Measures (SAM) authority has been used, including mental health screening of prisoners subjected to extreme isolation under the SAM rules, and consider appropriate modifications, which may include modifying SAM rules. The review should additionally ensure attorney-client privileges to prisoners in federal custody.
Reason: Under the Bush Administration, an interim rule drastically expanded the Bureau of Prisons (BOP) authority under the Special Administrative Measures (SAMs).1633 The regulation became effective immediately without the usual opportunity for prior public comment. The rules now give the Attorney General virtually unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate with counsel confidentially.
Misuse of Executive Branch Authority
24. The President should end abuse of presidential signing statements. President Obama should fulfill his pledge that he will “not use signing statements to nullify or undermine congressional instructions as enacted into law”1634 as has occurred under the Bush Administration. He should also make clear that, despite his predecessor’s signing statements, he intends to fully execute existing laws.
Yes. In fact, he should publicly and formally announce that all Bush signing statements altering laws are voided and undone, and list all the relevant passages.
Reason: A presidential signing statement is not part of the enactment process.1635 Yet President Bush has issued signing statements unilaterally claiming the power to refuse to implement parts of laws enacted by Congress, and has in fact done so in a number of instances. As recognized on a bipartisan basis, the pattern and practice of signing statements by the Bush Administration has represented a major abuse of power, undermining the authority of the Congress and the intent of the Framers of the Constitution. By executive action fulfilling his pre- election pledge, and by making clear that he will fully execute laws as to which President Bush issued signing statements, President Obama can end this abuse, as some of the most severe critics of the Bush Administration’s use of signing statements have recognized.1636 If necessary, Congress should consider possible legislation, such as some of the proposals in the 110th Congress, to prevent future misuse of signing statements.1637
25. The incoming Administration should restore rulemaking from the White House to traditional agency authority consistent with congressional intent and the public interest. As a threshold matter, the President should take two initial steps to restore this traditional authority to the relevant agency: (i) clarify that the role of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) is to facilitate the rulemaking process rather than to serve as a gatekeeper on rulemaking; and (ii) rescind Executive Order 13422, which by substantially enhancing the Executive Branch’s control over agency rulemaking, has undermined congressional intent.
Reason: Under President Bush’s leadership, OIRA’s role has changed from serving as a counselor for agencies to a self-described “gatekeeper” of agency rulemaking. OIRA’s current gatekeeping role conflicts with the fact that Congress delegates rulemaking authority to the agencies, not to OMB.1638 Issued without any prior consultation in January 2007, Executive Order 13422 undermines congressional intent in several respects. For example, the Order’s requirement that an agency identify a specific “market failure” establishes standards for regulatory initiation that are not consistent with statutory requirements and that can be used to deter congressionally- intended regulatory actions.1639 A diverse group of 17 regulatory experts supports this recommendation.1640
26. The incoming Administration should make rulemaking more transparent, understandable, and informative, thereby permitting greater accountability to Congress and the public. The President should: (i) amend Executive Order 12866 to mandate that the rulemaking process be transparent and subject to greater accountability consistent with recommendations made by GAO;1641 and (ii) require agencies to use electronic rulemaking.1642 In addition, Congress should: (i) fund the Administrative Conference of the United States (ACUS); and (ii) enact legislation to clarify the applicability of the Congressional Review Act with respect to what constitutes a “rule” within the meaning of the Act.
Reason: The Administration’s influence on agency rulemaking is difficult to discern even after the proposed or final rule is published because key parts of the OIRA review process and other Administration initiatives are not transparent. The only transparency required by OMB is during the formal review process. Accordingly, it is unclear whether outside entities have exercised undue influence and whether the Administration has directly or indirectly intervened in the rulemaking process to weaken or delay rules contrary to the public interest.1643 In addition, OIRA discloses neither how many “significant” guidance documents it has reviewed since the issuance of Executive Order 13422 nor whether any changes were made to those documents as a result of those reviews. Further, agency regulatory policy officers do not disclose how many rules they changed or completely prevented from being published in the Federal Register.1644 The need for greater transparency was also cited by a diverse group of 17 regulatory experts.1645 Other ways to promote greater transparency include implementing an effective electronic rulemaking process, as the current system makes it very difficult to track rulemaking.1646 This recommendation is supported by various regulatory experts.1647 In addition, ACUS could conduct empirical analyses with the cooperation of all three branches of government and make recommendations to the Administration and Congress on how the rulemaking process can be improved.1648 Further, the Congressional Review Act should be clarified with respect to what constitutes a “rule” within the meaning of the Act in light of the fact that the Bush Administration has sought to circumvent the requirements of the Congressional Review Act, which mandates that agencies submit rules to Congress before they become effective.1649
27. The incoming Administration should rein in “Midnight” rulemaking, which implements the priorities of a lame-duck administration even though a new President has been elected. The President should: (i) impose a 60-day moratorium on regulations not yet finalized or in effect; and (ii) prohibit Executive Branch agencies from unilaterally issuing “midnight regulations” – regulations issued during the last several months of an outgoing president’s term of office – except in compelling or exigent circumstances. If necessary, Congress should consider legislative restrictions on the practice, such as H.R. 34, the “Midnight Rule Act,” introduced by Rep. Nadler at the beginning of the 111th Congress.
"If necessary"? Is it unnecessary for Congress to strip the presidency of powers if one president momentarily fails to abuse those powers? Why is the work of our first branch of government always a last resort?
Reason: While many outgoing administrations attempt to expedite the rulemaking process to ensure their priorities are addressed, such an expedited process may shortcut meaningful agency review and public participation processes. A recent spate of controversial midnight regulations issued by the Bush Administration relating to the environment, civil liberties, the preemption of state consumer safety laws, and other important matters of public policy, present serious concerns about midnight regulations. Such rules can be particularly problematic if they have been rushed through the review and comment process.1650 As recommended by a diverse group of regulatory experts, a moratorium would allow time for the incoming Administration to review problematic regulations not yet finalized or in effect.1651 Regulations required by court order, statute, or necessity to meet regulatory emergencies could be exempt from the moratorium.1652
Other Incursions by the Executive Branch
In addition to the above recommendations concerning the misuse of signing statements and regulatory authority, over the last eight years we have witnessed a number of additional instances of misuse of Executive Branch authority or unaccountable abuses of power which warrant a Legislative or Executive Branch response. Several of these additional recommendations were worked on by the Committee over the last two years and are set forth below.
28. The incoming Administration and Congress should restore the full protection of the attorney-client privilege. The Obama Administration should issue an executive order or memorandum requiring application to all agencies of the August 28, 2008, Justice Department guidelines on corporate prosecutions, which recognized the importance of the attorney-client privilege and work-product doctrine. Congress should also consider legislation to prohibit federal prosecutors from considering a corporation’s willingness to “waive” its attorney-client privilege and work-product protections in making charging and leniency decisions. H.R. 3013, the “Attorney-Client Privilege Protection Act of 2007,” which passed the House on November 13, 2007, by voice vote, would restore judicial oversight to these protections, while preserving prosecutorial discretion necessary to fight corporate crime.
Reason: The centuries-old common law and constitutional protections of the attorney-client privilege and attorney work-product doctrine are fundamental to our nation’s system of justice. Unfortunately, past governmental policies gave rise to a “culture of waiver” that placed the continuing vitality of these crucial protections in serious jeopardy. Specifically, the Department of Justice had previously adopted policies that placed defendants at greater risk of prosecution if they claimed any of the fundamental protections embodied in the attorney-client privilege or work-product doctrine. The genesis of these policies was a series of Justice Department memoranda, which include a 2006 memorandum from then-Deputy Attorney General Paul McNulty, permitting prosecutors to demand a privilege waiver after receiving Department approval, and granting corporate defendants credit from criminal charges for “voluntarily” waiving without being formally asked. In a laudatory change of direction, the Department, on August 28, 2008, issued new guidelines on corporate prosecutions, specifically recognizing the importance of the attorney-client privilege and work-product doctrine.1653 Because the guidelines follow the spirit of H.R. 3013, the Obama Administration should take immediate steps to replicate the Justice Department guidelines by executive order for all agencies. Legislation may also be necessary if certain independent regulatory agencies (such as the Securities and Exchange Commission) fail to follow the President’s lead and to ensure that these standards apply under future administrations.
29. Congress should enact press shield legislation. Congress should pass legislation that provides a qualified privilege that prevents a reporter’s source material from being revealed except under certain narrow circumstances, such as where it is necessary to prevent an act of terrorism or other significant and specified harm to national security or imminent death or significant bodily harm. H.R. 2102, the “Free Flow of Information Act,” which passed the House on October 16, 2007, by a vote of 398-21, will restore the independence of the press while balancing the legitimate and important interests that society has in maintaining public safety.
Reason: One of the most fundamental principles enshrined by the Founding Fathers in the First Amendment of the Constitution is freedom of the press. This freedom is one of the cornerstones of our democracy; without it, we cannot have a well-informed electorate and a government that truly represents the will of the people. The Bush Administration has repeatedly assaulted the press by imprisoning or threatening imprisonment of reporters. As noted by the Washington Post, “40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases.”1654 Many stories would not have been published without a promise of confidentiality to sources, such as Watergate, the Pentagon Papers, and Iran-Contra. More recent news stories brought to light based on confidential sources include the conditions at the Walter Reed Army Medical Center, the Abu Ghraib prison scandal, and the abuse of steroids by baseball players. At present, 49 States and the District of Columbia have some form of a shield law. The lack of a corresponding federal reporter's privilege undercuts these state laws. Because the privilege is not absolute, a federal law will prevent law enforcement officials from using journalists and the results of their fact-gathering as a shortcut to a proper investigation but will not obstruct truly appropriate and necessary inquiries. With the reporter shield law, law enforcement will be forced to pursue other sources of information before being able to turn to journalists for their notes.
30. The incoming Administration should limit the ability of Executive Branch officials to prevent victims of terrorism from recovering for their losses. The President should seek to resolve a dispute between victims of torture and the government of Iraq committed during the Gulf War. If not, Congress should consider enacting legislation, such as H.R. 5167, the “Justice for Victims of Torture and Terrorism Act,” which passed the House on September 15, 2008, by voice vote. This legislation will enable American POWs and civilians to hold the Government of Iraq liable for the physical and emotional injuries they sustained while held captive by Iraqi officials during the Gulf War.1655 Reason: In 1998, Congress passed the “Flatow Amendment” to specify that a cause of action existed against the officials, employees, and agents of foreign states who commit a terrorist act “while acting within the scope of” their employment if a U.S. government official would be liable for similar actions.1656 Unfortunately, in conjunction with the 2003 Iraq War, President Bush took a series of actions that, in combination, had the effect of making Iraq’s assets in the U.S. unavailable to terrorism victims who, after March 20, 2003, obtained terrorism-related judgments against Iraq.1657 In 2008, Congress sought to amend the Foreign Sovereign Immunities Act (FSIA) of 1978 to enable victims whose claims were dismissed for lack of a federal cause of action to re-file their claims under new 28 U.S.C. §1605A – a new FSIA terrorism exception and explicit cause of action against terrorist states – and enforce judgments by attaching a defendant state’s assets.1658 However, President Bush vetoed the FY08 National Defense Authorization Act, solely on the basis of this provision.1659
31. Congress should pass legislation holding Administration-designated contractors in Iraq and elsewhere responsible for their criminal misconduct. Congress should pass legislation to explicitly address the inadequacies of our criminal law in war zones. H.R. 2740, the “MEJA Expansion and Enforcement Act of 2007,” which passed the House on October 4, 2007, by a vote of 389-30, would make contractors and contract personnel under Federal contracts criminally liable for crimes committed overseas. It would amend the Military Extraterritorial Jurisdiction Act (“MEJA”),1660 which criminalizes offenses committed outside the United States by members of the Armed Forces and certain Defense Department contractors, but does not cover all contractors providing services in an overseas military operation.1661
Reason: An estimated 180,000 contractors are currently working in Iraq, and thousands more are working in Afghanistan and elsewhere.1662 Unfortunately, the current law does not clearly specify that these contractors are accountable for their criminal conduct.1663 For example, contractors hired through the Defense Department are subject to both the Uniform Code of Military Justice and MEJA, while contractors who commit crimes on Federal property may be prosecuted under the USA PATRIOT Act. The vast majority of armed contractors performing security functions overseas, however, may not be subject to any of these laws. Thus, although the Justice Department has recently brought five indictments against contractors involved in the Iraq Nisour square shooting where at least 17 Iraqis were killed, lawyers for the defendants have already stated that they will contest whether the Justice Department has jurisdiction under MEJA to bring the case.1664 In another example, Jamie Leigh Jones, a young woman working for Halliburton/KBR in Iraq, testified before the Judiciary Committee that she was drugged and raped by fellow employees in 2005.1665 Almost four years later, we have yet to hear of the status of the investigation or prosecution.
32. The Department of Justice should issue guidelines to require transparency and uniformity of corporate deferred and non-prosecution agreements. The Attorney General should revise guidelines regarding the Justice Department’s use of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) in order to provide greater transparency and consistency in their use and in the selection and compensation of independent corporate monitors. DPAs and NPAs are agreements between the federal government and individual corporations in which the government agrees to not prosecute or defer criminal prosecution in exchange for the corporation agreeing to specific actions such as changes in corporate policies and payment of monetary penalties. If necessary, Congress should consider enacting legislation such as H.R. 6492, the “Accountability in Deferred Prosecution Act of 2008,” which would require the Attorney General to take steps to ensure that the process is fair for all parties to the agreement and that prosecutors award contracts to corporate monitors pursuant to a process that is open, public and competitive.1666
Reason: DPAs and NPAs often impose significant obligations on corporations, including the payment of substantial monetary penalties, the implementation of stringent corporate governance and compliance measures, mandatory cooperation with the government’s ongoing investigation (often requiring waiver of the corporation’s attorney-client and work-product privileges), waiver of speedy trial rights and statute of limitations defenses, and agreement to external oversight by an independent corporate monitor approved by the government.1667 The Justice Department, however, has provided minimal guidance to United States Attorneys with respect to how these agreements should be structured, how independent monitors should be selected, and what are appropriate duties for these monitors.1668 The absence of meaningful guidance has led to inconsistent use of these agreements among the jurisdictions, unequal treatment of corporations that choose to enter into such agreements, and abuse in the appointment of independent corporate monitors.1669
Retribution Against Critics
33. Congress should consider legislation concerning the exercise of clemency involving government officials. Congress should consider legislation that would require the president, upon granting clemency to a current or former Executive Branch official, to report to Congress (1) whether the official was involved in any ongoing or contemplated criminal or civil investigation; (2) whether the president sought the recommendation of the federal official responsible for the investigation as to the implication of the clemency grant on the investigation and, if so, the nature of the official’s recommendation; and (3) whether the responsible official communicated to the president his or her belief that the grant of clemency would interfere with any ongoing or contemplated investigation into possible misconduct by the president, vice president, or administration officials. Those and similar procedural requirements appear in H.R. 5961, the “Integrity and Accountability in Administration Pardons Act of 2006,” which then-Ranking Member John Conyers, Jr. introduced in the House during the 109th Congress. Congress should also consider legislation that would require lobbyists to disclose pardon-relating lobbying activities directed at the Executive Branch.1670
Reason: The president’s clemency power can too easily be used to interfere with or hinder a civil or criminal investigation into malfeasance by the president, vice president, and Executive Branch officials. A pardon can even shut down an investigation altogether by immunizing the subjects of the investigation from prosecution. That concern arose most notably at the end of George H. W. Bush’s Administration, when the President pardoned former Defense Secretary Casper Weinberger and Assistant Secretary of State Elliott Abrams with respect to their actions during the Iran-Contra scandal of the mid-1980s The prosecution of Secretary Weinberger and Assistant Secretary Abrams might well have brought the President’s own actions under public scrutiny.1671 President George W. Bush’s 2007 grant of clemency to Vice President Cheney’s chief of staff, Scooter Libby, raised similar concerns, as did President’s Clinton’s end-of-term pardons of his brother, Roger Clinton, and Clinton friend and partner in the Whitewater real- estate venture, Susan McDougal. Legislation along the lines of H.R. 5961 would render the president more publicly accountable when granting clemency to Executive Branch officials,1672 while leaving the President’s constitutional clemency authority undisturbed.1673 As for lobbying- disclosure legislation, it may be needed to expose pardon-lobbying by wealthy and influential pardon applicants of the sort the public witnessed during the final days of the Clinton Administration.1674
This is all well and good but what about the looming issue of presidential false-pardons of crimes the president authorized that are not the subject of any investigation?
34. Congress should enhance and strengthen protection for Executive-Branch whistleblowers. Congress should pass legislation to enhance and strengthen existing legal protection for whistleblowers. Needed changes of particular importance include according protection to federal employees who report high-level misconduct directly to Congress (rather than requiring them to “report up the chain of command”), reversing court decisions that have largely gutted existing legal protections against retaliation, and enhancing legal remedies for successful claimants. Congress should also extend whistleblower protections to CIA, FBI, and other employees who work on national security matters. Most are currently unprotected under existing federal laws. Legislation introduced during the 110th Congress that passed the House but failed to become law (including H.R. 985, the “Whistleblower Protection Enhancement Act of 2007,” and S. 274, the “Federal Employee Protection Disclosure Act”) offers a starting point for future legislation.
Yes, a starting place. This needs to be greatly strengthened.
Reason: A key component to government accountability is protecting the employees who are on the inside and decide to report wrongdoing. Federal employees are often the first, and perhaps the only, people to see signs of corruption, government misinformation, and political manipulation. They are in a distinct position to alert Congress or other authorities when officials put political agendas ahead of facts or sound policy. Unfortunately, as seen in cases involving the Bush Administration, whistleblowers often are the victims of retaliation by their superiors. The threat of such retaliation can have a chilling effect on federal employees’ willingness to blow the whistle. Enhanced legal protections would help insulate whistleblowers from the threat of retaliation. National security officials particularly deserve whistleblower protections. They are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified documents. They are in the unique position of handling the most sensitive law enforcement and intelligence projects, but they currently receive no protection when they come forward to identify abuses that are undermining our national security.
Government in the Shadows: Executive Privilege, Secrecy, and the Manipulation of Intelligence
35. Congress should enact changes in statutes and rules to strengthen Congress’ contempt power. Congress should pass legislation that would establish a clear and expeditious mechanism to enforce congressional subpoenas civilly against current and former Executive Branch officials. Congress should also adopt legislation creating a process for the appointment of a special counsel to prosecute current or former Executive Branch employees held in contempt of Congress for refusing to testify or produce documents in response to a congressional subpoena, such as Representative Miller’s H.R. 6508, the “Special Criminal Contempt Procedures Act.” In addition, the House should consider adopting a rule providing for procedures to go forward with inherent contempt as necessary. Reason: While the Committee’s lawsuit to enforce subpoenas against Harriet Miers and Josh Bolten has established that Congress may enforce its subpoenas in federal court under the Declaratory Judgment Act, the procedures required can be burdensome and time consuming. The established remedy of statutory criminal contempt has proven ineffective because the Justice Department has refused to prosecute despite the House’s finding of contempt. Any use of Congress’ recognized power of inherent contempt has been frustrated by the absence of specific procedures in the House. A law specifically authorizing civil contempt proceedings to enforce subpoenas would avoid problems of delay and create an orderly, streamlined, non-criminal mechanism to resolve these disputes. Legislation should also make clear that when Congress determines that a present or former Executive Branch official is in contempt for refusing to comply with a subpoena, enforcement cannot simply be stopped by the Administration’s refusal to go forward (as occurred in the Miers-Bolten case), but would be turned over to a special counsel because of the obvious conflict of interest. The Miers-Bolten situation also highlighted the need for clarification of the process for exercising Congress’ inherent contempt power to penalize an individual who defies a subpoena, and specific rules to address questions such as how inherent contempt proceedings would be initiated, what House entities would prosecute and initially rule on such charges, and what and how penalties can be imposed.
Now you're talking!
36. The incoming Administration should establish procedures for asserting Executive Privilege. The President should issue an executive order establishing procedures for asserting executive privilege, including a commitment to personally invoke the privilege and to provide adequate descriptive information to Congress if documents are withheld. Congress should engage in oversight concerning the efficacy of any proposed procedures and determine whether additional action in the form of legislation is necessary.
It is. The executive should be permitted to make the case in closed session, but Congress should have the power to decide whether a sufficient case has been made.
Reason: During the 110th Congress, the Administration withheld subpoenaed documents from Congress on the basis of executive privilege on multiple occasions.1675 However, some of these invocations of privilege were stated in communications from the White House Counsel; no personal assertion of the privilege by President Bush, as caselaw and prior executive practice require, was ever presented.1676 Accordingly, the incoming Administration should establish clear guidelines for the assertion of privilege that include provision of an unambiguous personal claim of privilege by the president. In addition, the interbranch accommodation process under the Bush Administration suffered because of a consistent refusal of the White House to provide adequate information about documents being withheld, which would have allowed Congress to consider possible compromises in an informed manner. As Judge Bates recognized in the Judiciary Committee’s lawsuit against Harriet Miers and Josh Bolten, “a more detailed description of the documents withheld and the privileges asserted would be a tremendous aid during the negotiation and accommodation process.”1677
37. The incoming Administration and Congress should prevent abusive assertion of the state secrets privilege. The President should issue an Executive Order specifying that (i) the state secrets privilege should be invoked narrowly to challenge the admissibility of particular pieces of evidence, not to dismiss entire cases, and (ii) when invoked, the government should make a reasonable attempt to provide a non-privileged substitute – such as a redacted version or a summary – instead. The next Congress should also pass legislation that sets out the substantive standards and procedural framework for meaningful judicial review of state secret claims, and requires judges to review the information that the government seeks to withhold and determine whether its disclosure would be harmful to national security using procedures that safeguard classified and other potentially sensitive information. These provisions were included in H.R. 5607, the “State Secret Protection Act,” introduced by Reps. Nadler and Conyers in the 110th Congress.
Review should be by courts or by Congress, whichever body information is being withheld from.
Reason: Although there are valid reasons for recognizing a state secrets privilege, preventing the sort of broad abuses of the privilege perpetrated by the Bush Administration requires action in both the Legislative and Executive Branches. The state secrets privilege was used by the Bush Administration to broadly escape judicial review of a number of potentially illegal actions, including rendition, warrantless domestic surveillance, and post-9/11 detention of American citizens, and in discrimination and retaliation claims brought by former federal employees. Corrective measures are needed from the Executive to limit the circumstances and manner in which state secrets privilege is asserted. Corrective measures are needed from the Legislative branch to standardize the process and provide uniform substantive standards by which courts may fairly evaluate whether the state secrets privilege, when challenged, was properly invoked.
38. The incoming Administration and Congress should improve the system for classification and declassification. The President should issue an Executive Order that (i) rescinds Executive Order 13292, thereby restoring the previous presumptions for declassification, (ii) requires each Executive Branch agency that classified information during the Bush administration to perform a detailed review of its classification guides in order to eliminate obsolete requirements and to reduce the total amount of classification to a minimum, (iii) modifies military and intelligence classification rules to reduce unnecessary classification, (iv) adds a balancing test that requires that the public value of the information be considered when determining if it is to be declassified, and (v) ends the practice of reclassifying declassified documents. Congress should also consider legislation to prohibit political manipulation of the classification/declassification process in the future. The legislation should incorporate the recommendations of the Moynihan Commission,1678 among them, (i) the establishment of a national declassification center to declassify material (with guidance from the originating agencies) and make it available to the public, (ii) establishing a single, independent Executive Branch office for coordinating classification and declassification practice, (iii) requiring classification officials to weigh a variety of factors, including costs and benefits of secrecy, in arriving at their initial classification decision, and (iv) having the Director of National Intelligence issue a directive outlining the appropriate scope of protection for methods and sources as a rationale for classification.
Reason: As a general matter, government documents should be declassified in all but the most necessary of circumstances, in order to promote the widest distribution of government information. The Bush Administration has largely operated under a veil of secrecy, not only seeking to keep existing classified information out of the public domain, but also attempting to re- classify documents that have already been declassified and released to the public. The consequences of using classification to keep potentially damaging revelations out of the public eye can be grave. For example, the Bush Administration used classification in order to embellish the 2002 National Intelligence Estimate on Iraq’s weapons of mass destruction capabilities and its ties to al Qaeda.1679 The public version omitted major caveats, uncertainties, and dissents contained in the classified version, thus leading the public to believe that the threat posed by Iraq was far more certain and immediate than the intelligence agencies actually believed.
39. Congress should consider legislation requiring the President to publicly announce the declassification of classified materials. Congress should consider legislation whereby the Executive Office of the President is required to provide public notice whenever it declassifies documents, with the notices to be published on the White House website and other selected locations. The legislation should require the president to inform the congressional intelligence committees within a reasonable time frame whenever intelligence has been declassified, as provided in S. 2660, introduced by Sen. Diane Feinstein in the 109th Congress. Her legislation provided a 15-day time period in which to give congressional intelligence committees notice of declassification.
Reason: The Administration appears to have selectively leaked numerous items of classified information to buttress their case for war. The President himself appears to have secretly authorized the declassification of information without notice in an effort to neutralize Ambassador Wilson’s op-ed concerning the Administration’s uranium claims. The public would have better access to information were the White House to issue public notices upon declassification.
40. The Department of Justice should restore the presumption of disclosure under FOIA. The Attorney General should rescind the October 2001 Ashcroft directive that reversed the presumption of disclosure under FOIA and restore the principle that information should be released unless it is both exempt from disclosure and it would be harmful to release it.1680
Reason: The October 2001 directive issued by then-Attorney General Ashcroft reversed the presumption of disclosure under FOIA. Explicitly superseding the Department of Justice’s FOIA Memorandum of October 4, 1993, the directive imposed a high threshold for disclosure, permitting the heads of all federal departments and agencies to make discretionary decisions to disclose information protected under the FOIA “only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated.” Adopted as Administration policy, the directive has resulted in a lack of transparency by the federal government. Indeed, 2007 witnessed the lowest percentage of FOIA requests granted in full, 35.6%, since data collection started in1998.1681 The previous presumption in favor of disclosure should be restored. Conflicts in balancing the public interest in information about its government with legitimate needs for secrecy should be decided in favor of disclosure.
41. The President should rescind Bush White House memoranda that significantly restrict the use and disclosure of non-classified information. In particular, the memoranda that should be revoked include White House Chief of Staff Andrew Card’s Memorandum for the Heads of Executive Departments and Agencies on “Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security,”(March 19, 2002) and President Bush’s Memorandum for the Heads of Executive Departments and Agencies on the Sharing of Controlled Unclassified Information” (May 9, 2008).
Reason: While national security concerns may legitimately require preventing the disclosure of certain classified information, those arguments fall away when that information is already declassified and in the public domain. The 2002 memo staked out broad Executive authority and encouraged agencies to reclassify information that was no longer classified and, similar to the Ashcroft memo on the Freedom of Information Act, encouraged the use of various FOIA exemptions to withhold disclosure of sensitive but unclassified information, which was not defined. The 2008 memo introduced “Controlled Unclassified Information” as a new government category that replaced “Sensitive but Unclassified.” Rescinding the memos would promote greater transparency of government records by reducing the avenues by which documents could be withheld from the public for classification reasons. Similarly, while the Bush Administration claims that the purpose of the 2008 memo is to standardize practices and improve information sharing, it effectively continues an expansion of secrecy in government by adding an unnecessary level of uncertainty for government employees deciding which documents may be released in response to public inquiry. Although the Memorandum explicitly states that the use of the “controlled unclassified information” label “may inform but [does] not control” the decision to disclose under FOIA, lower-level staff, seeing the label on responsive documents, may instinctively treat it as protected and withhold it from disclosure.1682 Poorly-trained or ill-informed junior staff, unfamiliar with these new designations, may be overly cautious in withholding documents, which is currently the norm in cases of uncertainty as a result of the memos described above. Because of the threat of under-disclosure, the incoming Administration should reduce potential room for error by minimizing the number of classification designations (in addition to mandating a presumption of disclosure, as described above).
42. The President should place the Office of FOIA Ombudsperson in the National Archives. The President should resolve the impasse created by the Bush Administration and place the office of FOIA ombudsperson in the National Archives and Records Administration rather than in the Department of Justice, in compliance with the OPEN Government Act of 2007.1683 This would situate the entity in a neutral forum to aid requesters with their FOIA requests without potential interference from a party in possession of requested documents, and provide impartial oversight over compliance.
Reason: In enacting the OPEN Government Act of 2007, Congress created an ombudsperson responsible for FOIA requests. The position was created in response to Bush Administration policies designed to limit the volume of documents produced in response to FOIA requests. The position was created in the National Archives, and was designed to both assist requesters by providing informal guidance and reviewing agency compliance. In contravention of the enacting law, in 2008, the Bush Administration administratively transferred the office of FOIA ombudsperson from the National Archives, an independent federal entity, to the Department of Justice, which is part of the Executive Branch and ultimately supervised by the Attorney General, a presidential appointee. This change occurred before the office even began functioning. The transfer was initiated by the Vice President’s office after it had engaged in an escalating series of confrontations with the National Archives over the Vice President’s obligations to report his possession of classified information. As the ombudsperson’s superior, the Attorney General could directly and indirectly influence the ombudsperson’s actions and limit the guidance provide and disclosures authorized.
43. The incoming Administration should restore the accessibility of presidential records. The President should issue an Executive Order rescinding Executive Order 13233 and restoring the requirements of Executive Order 12667. Such an order should have the effect of making presidential records generally available to the public twelve years after the president has left office, and preventing former presidents and vice presidents from indefinitely claiming privilege over such documents.1684
Reason: President Bush issued Executive Order 13233, concerning the Presidential Records Act, which superseded Executive Order 12667. Under the old Executive Order, presidential documents were made public 12 years after the custodial president left office. Under President Bush’s Order, former presidents and vice presidents and their representatives may seek to bar the release of such documents by claiming one of numerous privileges, allowing the president and vice president to enshroud numerous historical documents in a permanent secrecy.
44. Congress should modernize the Presidential Records Act. Congress should consider legislation that would modernize the Presidential Records Act and clarify its application to a modern White House using multiple and overlapping communications systems, such as blackberries and personal digital assistants. The legislation should enact criminal penalties for intentional destruction of presidential records or deliberate circumvention of official record- keeping mechanisms when conducting presidential business.
Reason: The Bush Administration’s widespread use of political communications equipment to conduct official business has led to a number of challenges in investigating allegations of official misconduct such as the U.S. Attorney removals. Other investigations have been hampered by the loss of e-mail communications and inconsistency within backup and archiving mechanisms. Investigation by the Oversight and Government Reform Committee revealed that, in some instances, personnel intentionally and knowingly diverted official business to outside communication systems to avoid White House recordkeeping systems.1685
45. The incoming Administration should clarify the applicability of rules of access to the Office of the Vice President. The President should issue an Executive Order clarifying that the rules of secrecy applicable to the Executive Branch apply equally to the Office of the Vice President and that the Office of the Vice President is subject to the same document preservation requirements as the president.
This would be an improvement on leaving the vice president in a lawless zone, but making him subject to the laws and rules of the legislative branch, and denying the claim of the vice presidency to executive powers, would be wiser.
Reason: Vice President Cheney has consistently refused to comply with information disclosure mandates applicable to the entire Executive Branch.1686 He has justified his noncompliance on the grounds that the secrecy rules which bind the Executive are not applicable to the Office of the Vice President. The Office of the Vice President cited this alleged ambiguity in declining to comply with the National Archives’ request for the preservation of documents, a request with which even the Office of the President has complied. The dispute led to unnecessary litigation between the two offices. The political nature of the Vice President’s position became evident when his chief of staff David Addington attempted to have the Archivist’s office eliminated. There is no proper policy or constitutional basis for excluding the Vice President’s office from general rules of access.
46. The incoming Administration should eliminate overly restrictive “Gang of 8" briefings in favor of more effective mechanisms. To the extent possible, the President should avoid using “Gang of 8” briefings, as the system leads to abuses. If necessary, Congress should consider amending the National Security Act to (i) expand 50 U.S.C. §413b(c)(2) to permit staff members of the Gang of 8 with suitable security clearances to participate, (ii) make clear that the Gang of 8 can discuss the contents of these briefings with their congressional colleagues under suitable protections, and (iii) clarify the meaning of the word “covert” within the statute.
Reason: The National Security Act of 1947 requires the president to keep all members of the congressional intelligence committees fully and currently informed of all of the intelligence activities of the United States.1687 However, where covert actions are involved, the president is statutorily permitted to limit notification to the so-called “Gang of 8,” the leaders of the House and Senate and the chairs of the House and Senate intelligence committees.1688 “Gang of 8” briefings exclude staff, regardless of their levels of security clearance; moreover, the debriefed members are forbidden from taking notes or discussing the substance of these briefings with their colleagues. Despite the express limitation spelled out in the statute, the Bush Administration has used “Gang of 8” briefings to brief a limited number of Members on a wider variety of issues not provided for within the law, such as warrantless domestic surveillance; the Congressional Research Service specifically found that the program “would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute.”1689 On one occasion in October 2001, the Bush White House went so far as to say that any congressional briefing involving classified information should be limited to the “Gang of 8” and no one else in Congress. This undermines the express purpose of the National Security Act, which was to keep the intelligence committees fully informed of the federal government’s intelligence activities. In addition, no legislation should be able to limit the ability of any Members of Congress to share information with other Members when necessary to carry out their constitutional responsibilities, and amendments to the rules of both Houses would be appropriate to make this clear.
47. The incoming Administration mandate steps to avoid manipulation and misuse of intelligence. The President should issue an Executive Order that ensures that (i) versions of National Intelligence Estimates (“NIEs”) and other documents made public adequately indicate dissents or caveats, (ii) only official components of the intelligence community can produce intelligence assessments, and (iii) senior officials not make public assertions inadequately supported by intelligence, and there be procedures for corrective action should that occur. In addition, by executive action or by statutory mandate if necessary, an unclassified version of National Intelligence Estimates and comparable assessments, including important caveats and dissents, should be publicly released.
That's nice but it hardly scartches the surface. We had "intelligence " produced by the military. We had "intelligence" fixed around the policy. We had top officials lying to the public and the Congress. We had documents forged. We had propaganda covertly planted. We had journalists bribed. We had journalists bombed. We had funds misspent to launch the war. We had illegal weapons produced and used, civilians targeted, nations looted. Of course, the chief remedy is impeachment, but there are others as well. What ever happened to the report of 3 years ago?
Reason: The “hands-on” approach of the Bush Administration in directly reviewing raw intelligence data that had not been vetted through appropriate channels led to improper assumptions, incorrect assessments, and a diminution in independent recommendations, all of which led to misguided policies with devastating long-term consequences. Senior Defense Department executives established the Office of Special Plans (OSP), which purported to produce intelligence reports and assessments about alleged Iraqi WMDs and links to al Qaeda. Working with the Office of the Vice President, OSP sent its products directly to the White House, without their being subject to review and comment by the intelligence community. At the same time, the Vice President, his staff and other senior Executive officials made repeated trips to the CIA to press analysts to conform their evaluations on Iraq to predetermined positions. Rather than provide unbiased independent assessments to the White House, the intelligence community effectively came under the Office of the Vice President, which then filtered the intelligence to comport with the policy positions of the Executive. For example, the Bush Administration cited an intelligence community estimate that aluminum tubes imported by Iraq were intended for centrifuges to enrich uranium to weapons grade. Department of Energy (DOE) scientists, who were the Americans most expert on uranium enrichment, were confident that the tubes were not intended for use as centrifuge. They had vehemently dissented from the majority Community view that the tubes were intended for centrifuges. Moreover the State Department intelligence experts on nuclear proliferation agreed with the DOE experts. Although NIEs, which are authoritative assessments by the intelligence community on intelligence related to specific national security issues, are under the possession and control of the president, the misuse of NIEs by the President in the Iraq War illuminates why publishing declassified versions is so important. The Bush Administration made public a declassified version of the 2002 National Intelligence Estimate about the WMD threats posed by Iraq. However, the published version omitted major caveats, acknowledgment of poor information, expressions of low probability, and dissenting views. It also omitted the Intelligence Community consensus that there was little likelihood that Saddam would give whatever WMD he might have had to terrorists, as President Bush had suggested. It is crucial to ensure that Congress and the public can consider the facts and assumptions relied upon in fashioning some of the Executive’s most grave policy decisions.