October 28, 2008 – The next president will become chief executive of a nation that has been greatly weakened – in particular, our freedoms, our values, and our international reputation have been greatly undermined by the policies of the past eight years.
Presidents have enormous power not only to set the legislative agenda, but also to establish policy by executive order, federal regulation, or simply by refocusing the efforts and emphases of the executive agencies. The new president must use all of these tools to restore our freedoms and move the country forward.
Doing so will require determined action in the face of inevitable opposition. It will require conveying to the American people why grants of unchecked power do not actually make us safer, and why Americans must stand firm in protecting the values that at our best we have always represented and defended at home and around the world.
It will not be easy to undo eight years of sustained damage to our fundamental rights. But it can be done.
This paper lists many of the actions that the new president should take in order to decisively signal a restoration of American values and a rejection of the shameful policies of the past eight years.
The first year of any new administration is crucial and sets the stage for what will follow. The new President needs to hit the ground running and to make full use of that first crucial year.
We have grouped needed actions into those that the new president should take on day one, in the 100 days and then the first year. Those actions include executive orders as well as mandates or directives from the president to his cabinet secretaries and agency heads.
Part 1 – Day One
Day One: Stop Torture, Close Guantanamo, End Extraordinary Renditions
The next president will have a historic opportunity — on day one — to take very important steps to restore the rule of law in the interrogation and detention of detainees held at Guantanamo Bay, Iraq, Afghanistan, and in secret prisons around the globe. Every action taken pursuant to an executive order of President Bush can be reversed by executive order of the next president.
Therefore, on the first day in office, the next president should issue an executive order directing all agencies to modify their policies and practices immediately to:
* Cease and prohibit the use of torture and abuse, without exception, and direct the Attorney General immediately after his or her confirmation to appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws prohibiting torture and abuse;
* Close the detention facility at Guantanamo Bay and either charge and try detainees under criminal law in federal criminal courts or before military courts-martial or transfer them to countries where they will not be tortured or detained without charge;
* Cease and prohibit the practice of extraordinary rendition, which is the transfer of persons, outside of the judicial process, to other countries, including countries that torture or abuse prisoners.
Stop Torture and Abuse
The next president should issue an executive order, on the first day in office, that orders all agencies to take immediate steps to ensure that torture and abuse is prohibited by the federal government, that no agency may use any practice not authorized by the Army Field Manual on Intelligence Interrogations, that no president or any other person may order or authorize torture or abuse, that all violations of Common Article 3 of the Geneva Conventions are prohibited, that all persons being held overseas must be registered with the International Committee of the Red Cross in conformity with Defense Department practices, and that all intelligence interrogations must be video recorded. In addition, the president should order all agencies to comply with requests from Members of Congress for unredacted copies of documents related to the development and implementation of U.S. interrogation policies. The president should also ask the U. S. Attorney General to appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws prohibiting torture and abuse – focusing not just on crimes committed in the field, but also on crimes committed by civilians, of any position, in authorizing or ordering torture or abuse. Finally, the president should order the immediate closure of all secret prisons, and prohibit the CIA and its contractors from detaining anyone.
Close Guantanamo and Restore the Rule of Law for Detainees
On the first day in office, the president should order the shutdown of the Guantanamo Bay detention facility and restoration of the rule of law for the detainees now held there. Specifically, the president should order the prompt shutdown of the detention facility, the transfer of any prisoners charged with a crime to a facility within the continental United States for trial in a federal criminal court or before a military court-martial, and the transfer of all uncharged detainees to countries where they will not be abused or imprisoned without charge.
End and Prohibit the Practice of Extraordinary Rendition
The president should order all agencies, on the first day in office, to end and prohibit any rendition or transfer of any person to another country without judicial process. The president should prohibit the rendition or transfer of any person to another country where there is a reasonable possibility the person would be subject to torture or abuse or detained without charge. Any person subject to any transfer shall have a due process right to challenge any transfer before an independent adjudicator, with a right to a judicial appeal.
In each instance, the executive order should by its terms rescind any conflicting previous order – none of which have been made public and remain secret to this day.
Part 2 – First 100 Days
1. Warrantless spying.
Issue an executive order recognizing the president’s obligation to comply with FISA and other statutes, requiring the executive branch to do so, and prohibiting the NSA from collecting the communications, domestic or international, of U.S. citizens and residents. Issue an executive order prohibiting new FISA powers from being used to conduct suspicionless bulk collection. Re-examine the recent amendments to Executive Order 12333 to limit and regulate all intelligence community activities and to fully protect the privacy and civil liberties of U.S. citizens and residents. Repeal and make public any secret executive orders that limit or qualify that order. Order the attorney general to launch an investigation to determine if any laws were broken or to appoint a special counsel to do the same.
2. Watch lists.
Issue an executive order requiring watch lists to be completely reviewed within 3 months, with names limited to only those for whom there is credible evidence of terrorist ties or activities. Repeal Executive Order 13224, which creates mechanisms for designating individuals and groups as terrorist suspects and preventing US persons and companies from doing business with them – a power of such breadth that, the record shows, it inevitably leads to the designation of many innocent people and does more harm than good.
3. Freedom of Information – Ashcroft Doctrine.
Direct the attorney general to rescind the “Ashcroft Doctrine” regarding Freedom of Information Act compliance, which instructs agencies to withhold information whenever there is a “sound legal basis” for doing so, and return to the compliance standard under Attorney General Janet Reno, which promoted an “overall presumption of disclosure” of government information through the FOIA unless it was “reasonably foreseeable that disclosure would be harmful.”
4. Monitoring of activists.
Direct the attorney general and other relevant agency heads (eg, Defense and Homeland Security) to end government monitoring of political activists. Direct the attorney general to repeal the new Attorney General Guidelines regarding FBI investigations, and replace them with new guidelines that protect the rights and privacy of innocent persons. An executive order should also direct the relevant agencies to refrain from monitoring political activists unless there is reasonable suspicion that they have committed a criminal act or are taking preparatory actions to do so.
5. DOJ’s Civil Rights Division.
Order renewed civil rights enforcement at Civil Rights Division, DOJ. Specifically: in Voting Section – prosecution of Section 2 and Section 5 cases on behalf of minority communities; in Employment Litigation Section – renewed class action litigation and disparate impact cases; in Criminal Section – prosecution of pattern and practice cases, enforcement of consent decrees; in Special Litigation Unit of Civil Rights Division – rebuild docket of prison conditions of confinement cases and where appropriate seek consent decrees by accepting admissions of constitutional violations.
6. Real ID Act.
Direct the Secretary of Homeland Security to suspend the regulations (73 Fed. Reg. 5272) for the Real ID Act pending congressional review.
7. Abortion gag rule.
Rescind the Executive Memorandum of March 28, 2001, known as the “Mexico City policy” or “Global Gag Rule,” prohibiting foreign aid to organizations overseas that promote or perform abortions.
8. Ban all workplace discrimination against sexual minorities by the federal government and its contractors.
Issue an executive order prohibiting sexual orientation and gender identity discrimination by federal contractors, and expand the existing order banning sexual orientation discrimination in federal employment to also protect against gender identity discrimination.
9. Death penalty.
Implement a federal death penalty moratorium until racial disparities are addressed. The federal death penalty system suffers from obvious and extreme racial disparities. In fact, the next six people scheduled to be executed are African-American men. The glaring racial disparities in the federal death penalty system must be carefully studied and addressed, and no executions should take place until this occurs.
10. “Faith-based initiatives.”
Restore fundamental religious-liberty protections by halting Bush Administration efforts to permit direct funding of houses of worship, underwrite religious proselytism with taxpayer dollars, and allow government-funded religious discrimination. In particular, repeal Executive Order 13279, which allows churches and religious organizations to engage directly in government funded religious discrimination in hiring, and repeal Executive Orders 13198, 13199, 13280, and 13397, which created new offices of Faith-Based Initiatives at the White House and other federal agencies. A new executive order should be drafted to protect the First Amendment rights of religious organizations, program beneficiaries and those who wish to be employed by these programs.
Part 3 – First Year Recommendations
Torture and Abuse
Background
At its best the United States has led the way on human rights and humane treatment for all, including the weakest and/or least popular groups in society and those accused of wrongdoing. We have served as a beacon and possessing a moral authority on the subject around the world. But justice and human rights have suffered greatly under the Bush Administration. The next president can begin to fix that damage to our national self-definition and to our moral authority around the globe.
Recommendations
1. The president should issue an executive order, on the first day in office, that orders all agencies to take immediate steps to ensure that torture and abuse is prohibited by the federal government, that no agency may use any practice not authorized by the Army Field Manual on Intelligence Interrogations, that no president or any other person may order or authorize torture or abuse, that all violations of Common Article 3 of the Geneva Conventions are prohibited, that all persons being held overseas must be registered with the International Committee of the Red Cross in conformity with Defense Department practices, and that all intelligence interrogations must be video recorded.
2. The president should order all agencies to comply with requests from Members of Congress for unredacted copies of documents related to the development and implementation of U.S. interrogation policies.
3. The attorney general should appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws prohibiting torture and abuse – focusing not just on crimes committed in the field, but also on crimes committed by civilians, of any position, in authorizing or ordering torture or abuse.
4. The president should order the immediate closure of all secret prisons, and prohibit the CIA and its contractors from detaining anyone.
5. The president should rescind any conflicting previous orders – none of which have been made public and remain secret to this day.
Guantanamo
Background
Perhaps the single most prominent example of the Bush Administration’s distain for is the placement of terrorist suspects (many of whom have turned out to be innocent) in Guantanamo Bay. Placed in this unique U.S. military base precisely in the hopes that it would be accepted by the U.S. courts as a legal no-man’s land, the existence of the Guantanamo detention center serves as a standing announcement of the betrayal of American belief in the rule of law.
Recommendations
Order the shutdown of the Guantanamo Bay detention facility and restoration of the rule of law for the detainees now held there. Specifically, the president should:
* Order the prompt shutdown of the detention facility
* Order the transfer of any prisoners charged with a crime to a facility within the continental United States for trial in a federal criminal court or before a military court-martia
* Order the transfer of all uncharged detainees to countries where they will not be abused or imprisoned without charge.
* Rescind any conflicting previous orders – none of which have been made public.
Extraordinary Rendition
Background
The CIA has engaged in an unlawful practice: abducting foreign nationals for detention and interrogation in secret overseas prisons. For example, an innocent German citizen, Khaled El-Masri, was kidnapped by the CIA, beaten, drugged, and transported to a secret CIA prison in Afghanistan. But, although the story of Mr. El-Masri’s mistaken kidnapping and detention at the hands of the CIA is known throughout the world, his lawsuit was dismissed by the U.S. District Court for the Eastern District of Virginia after the government invoked the so-called “state secrets” privilege. That decision was upheld by the U.S. Court of Appeals for the Fourth Circuit, and the Supreme Court’s refusal to hear the case lets that decision stand.
Recommendations
Order all agencies, on the first day in office, to end and prohibit any rendition or transfer of any person to another country without judicial process. The president should prohibit the rendition or transfer of any person to another country where there is a reasonable possibility the person would be subject to torture or abuse or detained without charge. Any person subject to any transfer shall have a due process right to challenge any transfer before an independent adjudicator, with a right to a judicial appeal. The executive order should by its terms rescind any conflicting previous order – none of which have been made public.
Day100
Spying on Americans
Background
The Bush Administration’s Program of warrantless spying on Americans violates our nation’s most fundamental precepts and threatens not only our privacy, but chills our rights of Free Speech and Association.
Recommendations
1. Issue an executive order recognizing the president’s obligation to comply with FISA and other statutes, requiring the executive branch to do so, and prohibiting the NSA from collecting the communications, domestic or international, of U.S. citizens and residents.
2. Issue an executive order prohibiting new FISA powers from being used to conduct suspicionless bulk collection.
3. Re-examine the recent amendments to Executive Order 12333 to limit and regulate all intelligence community activities and to fully protect the privacy and civil liberties of U.S. citizens and residents.
4. Repeal and make public any secret executive orders that limit or qualify that order.
5. Order the attorney general to launch an investigation to determine if any laws were broken or to appoint a special counsel to do the same.
Monitoring of activists
Background
Under the Bush Administration, the government has engaged in widespread monitoring of peaceful political activists exercising their First Amendment rights to agitate for changes in American politicies.
Recommendations
1. Direct the attorney general and other relevant agency heads (eg, Defense and Homeland Security) to end government monitoring of political activists.
2. Issue an executive order directing the relevant agencies to refrain from monitoring political activists unless there is reasonable suspicion that they have committed a criminal act or are taking preparatory actions to do so.
3. Direct the attorney general to repeal the new Attorney General Guidelines regarding FBI investigations, and replace them with new guidelines that protect the rights and privacy of innocent persons. The new guidelines should:
* Prohibit the use of intrusive investigative techniques absent specific and articulable facts that give a reasonable indication that the subject of the investigation is engaging in a violation of federal law.
* Specifically prohibit the use of race, religion, national origin, or the exercise of First Amendment-protected activity as factors in making decisions to investigate persons or organizations.
* Specifically prohibit the reporting of and keeping files on persons engaging in peaceful political activities.
Real ID Act
Background
The Real ID Act of 2005 would turn our state driver’s licenses into a genuine national identity card and impose numerous new burdens on taxpayers, citizens, immigrants, and state governments – while doing nothing to protect against terrorism. As a result, it is stirring intense opposition from many groups across the political spectrum. This Web site provides information about opposing Real ID.
Recommendations
The Secretary of Homeland Security should suspend the regulations (73 Fed. Reg. 5272) for the Real ID Act pending congressional review.
Watch lists
Background
The last 8 years have been characterized by the creation of a wide variety of watch lists, from the “terrorist watch list” used for travelers and visitors to this nation, to financial watch lists and reporting systems that impact the financial transactions of millions of ordinary Americans.
Recommendations
1. The President should issue an executive order requiring watch lists to be completely reviewed within 3 months, with names limited to only those for whom there is credible evidence of terrorist ties or activities.
2. Repeal Executive Order 13224, which creates mechanisms for designating individuals and groups as terrorist suspects and preventing US persons and companies from doing business with them – a power of such breadth that, the record shows, it inevitably leads to the designation of many innocent people and does more harm than good.
Financial watch lists
Background
The Treasury Department Office of Financial Assets Control’s (OFAC) Specially Designated Nationals List includes individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. Like the nation’s “Terrorist Watch List,” the OFAC list requires reform. The assets of those on the list are blocked and U.S. persons are generally prohibited from doing business with them. Many innocent individuals have been caught up by this list.
Recommendations
Reform the Treasury Department Office of Financial Assets Control (OFAC) designation procedure to establish full due process protections for individuals or groups designated for sanctions, create an effective redress program for individuals or organizations mistakenly flagged as a designated person, and issue transparent standards governing such designations.The duties and rights of the Board, including its subpoena power, are detailed in The Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, Title VIII, § 801 (2007).
Employee databases
Background
American employees are increasingly being subjected to vetting through federal databases that are rife with error.
Social Security “No Match” letters are mailed annually to employers to inform them that employee-provided Social Security tax information does not match a file at the Social Security Administration. This is simply a notice that there may be a confusion about a person’s current name or its spelling, or that another database error has occurred. Only occasionally does it indicate that an employee may not be lawfully eligible to work. Furthermore, these letters represent information that could be many months (if not more than a year) old. This is at best, a grossly ineffective tool for trying to target immigration enforcement.
The voluntary Basic Pilot Employment Verification System (aka “E-Verify”) is a nationwide employment verification system. While currently voluntary, Congress has been threatening to make it mandatory, despite the fact that it is plagued with errors and prevents innocent workers from gaining employment.
Recommendations
1. No Match letters. Pledge not to turn the Social Security No Match Letter system into a de facto immigration enforcement tool. Disavow and withdraw the Proposed Rule published in the Federal Register on March 26, 2008. That Rule would, if finalized, require employers to terminate employees who do not resolve discrepancies identified in a No Match letter within an impossibly short time frame.
2. E-Verify. Suspend enrolling new employers in the “e-verify” (formerly Basic Pilot) program until DHS demonstrates sufficient database accuracy and enforcement of the MOU standards governing employer enrollment, and until the enactment of legislation providing statutorily guaranteed administrative and judicial processes to ensure that workers who are wrongly delayed or denied the right to work are provided a quick, fair and efficient means of getting back to work and being made financially whole. While Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Pub. L. 104-210, 110 Stat. 3009-659 (Sept. 30, 1996) mandated the creation of an electronic verification program, it did not include any details or direction as to the form that that program should take, but left that to the discretion of the executive. Therefore, it is within the president’s power to declare that in its current form the e-Verify program is not a success, and to suspend it pending a reevaluation.
Secure Flight
Background
The Bush Administration has been attempting to implement a domestic airline passenger screening system for most of its tenure. But the program, currently dubbed “Secure Flight,” has been beset by many problems, many stemming from the thorny problems that an identity-based approach to airline security poses in a country without a system of cradle-to-grave national identification papers. The administration is currently prohibited from implementing Secure Flight until minimal conditions for fairness and effectiveness set by Congress are met.
No law requires the federal government to implement a Secure Flight program as currently constructed by the Department of Homeland Security. Currently, the security decisions in Secure Flight are made based on frequently inaccurate information contained in secret watch lists maintained at the Terrorism Screening Center that are completely inaccessible to the public and effectively shielded from scrutiny or correction. (The many problems with bloated watch lists affecting innocent travelers have received wide media attention.)
The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. No. 108-458 § 4012, 118 Stat. 3638, 3714-19 (2004) (codified as amended at 49 U.S.C. § 44903(j)(2)), required that the federal government take over from the airlines the process of matching air travelers’ names to the “no-fly” and “selectee” watch lists. DHS states it is fulfilling this requirement with the Secure Flight program; however, Secure Flight does not fulfill a number of the requirements set out in IRTPA for such a passenger-prescreening program.
For example, IRTPA says the program must: “ensure that Federal Government databases that will be used to establish the identity of a passenger under the system will not produce a large number of false positives.” Also, the program must have sufficient redress “procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” The current redress procedure, under a DHS program called “TRIP,” is wholly inadequate and does not provide for individual access to or correction of the erroneous data in the system.
Recommendations
The Department of Homeland Security should suspend the Secure Flight passenger-prescreening program until it fulfills the statutory requirements detailed above.
Harmonize privacy rules
Background
Privacy laws in most of the developed world – particularly Europe – are generally more comprehensive and protective than in the United States. And other advanced industrial democracies have governmental institutions dedicated to protecting privacy.
The difference in laws has resulted in a clash between the United States and major allies such as EU and Canada over data handling both by governments and the private sector. It is a burning issue that needs to be resolved.
For example, the difference in laws has led to transatlantic negotiations over the sharing of airline passenger name records (PNR) and financial data (SWIFT).
A Passenger Name Record (PNR) contains the travel information for a passenger or a group of passengers traveling together. Access to PNR data is covered in Europe by the EU Data Protection Directive, among other laws, and such data can legally be transferred only to countries with comparable data protection laws. The US has demanded increasingly broad access to the PNR data of Europeans, which Europe has balked at because of the US’s poor data protection laws. Such laws give few rights (such as access or correction) to U.S. citizens and even fewer to non-U.S. citizens.
Currently, the US Department of Homeland Security has an office in Brussels to better interact with EU officials. However, there is no privacy liaison or privacy officer in that office.
As for the EU, the Article 29 Working Party on Data Protection of the European Union was established by Article 29 of Directive 95/46/EC. It is an independent advisory body and includes representatives from the data protection authority of each EU Member State, the European Data Protection Supervisor and the European Commission. It publishes opinions and recommendations on data protection topics and advises the European Commission on the adequacy of data protection standards in non-EU countries.
The SWIFT scandal emerged in June 2006 as news reports described a massive Treasury Department program to secretly review international financial transactions, including those of American citizens and corporations. The Society for Worldwide Interbank Financial Telecommunication (SWIFT) was the Brussels-based banking consortium that revealed the private financial data to U.S. government officials after receiving “compulsory subpoenas.” Since the 2001 attacks, various reports and President Bush himself had said that the US was watching financial transactions, but what had not been known before the news reports was the breadth and depth of the monitoring. No outside governmental official, such as a federal judge, reviewed the program before its 2006 disclosure. The result was a public uproar; Belgium and Germany declared that the program was in violation of European privacy laws. European privacy regulators, including the Article 29 Working Party, exerted pressure and SWIFT changed its manner of operation to better protect European law and privacy.
Recommendations
The US should stop pressuring the European Union to override the EU’s own privacy laws and move to harmonize privacy rules in a pro-privacy direction. Key steps include:
1. Reopen negotiations. Reopen negotiations with allies on the transfer of data internationally, such as those regarding airline passenger records (PNR) or financial data (SWIFT), in order to bring US policies in compliance with international human rights standards.
2. Consultative status. Seek consultative status (through the secretaries of State and Homeland Security) with the Article 29 Working Party on Data Protection of the European Union for the purpose of further harmonization of data protection and privacy principles. We should not be asking the rest of the developed world to abandon its more advanced privacy protections.
3. Privacy liaison. Appoint a privacy liaison or officer to the Brussels office of the US Department of Homeland Security.
Civil Liberties Oversight Board
Background
The Privacy and Civil Liberties Oversight Board was created by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-408 (2004), but was removed from the White House and made an independent agency in the executive branch with the passage of the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, Title VIII, § 801 (2007). The Board’s mandate is to monitor the impact of US government actions on civil liberties and privacy interests. 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, President Bush has still not nominated 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.
Recommendations
1. Appoint all members to the Privacy and Civil Liberties Oversight Board and strongly urge the Senate to hold prompt confirmation hearings for the candidates.
2. The president’s first budget proposal should contain sufficient funds to actually bring the board back into existence as an effective entity.
3. The U.S. attorney general should create a mechanism for issuing subpoenas at the request of the Board. For example, this can be done through the creation of a Memorandum of Understanding between the board and the attorney general in which the attorney general promises to enforce subpoenas issued by the board’s request unless he or she certifies that such a subpoena would be unlawful.
DNA databases
Background
The collection and banking of DNA samples raises extraordinary privacy and racial justice concerns. Of particular concern is the recent trend – limited almost exclusively to the United States and the United Kingdom – to expand DNA databases to included those who have been merely arrested for, and not convicted or even charged with, a crime. Despite what is often claimed, DNA is not a fingerprint. The forcible collection and retention of DNA from innocent people constitutes a significant intrusion into individuals’ privacy rights.
The Justice Department has proposed a regulation that will require any person arrested on federal charges, including misdemeanor charges, to submit a DNA sample to be included in the national criminal DNA databank. 73 Fed. Reg. 21083-21087 (April 18, 2008). The Department’s analysis offered in support of this regulation utterly fails to address the legal and privacy problems with the proposed regulation. For example, although the analysis cites the single case that has upheld arrestee testing of persons arrested of violent crimes, it does not even mention that another appellate court has applied firmly established Supreme Court precedent to hold that “tak[ing] a biological specimen from a person who has been charged but not convicted violate[s] the Fourth Amendment to the United States Constitution.” In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. App. 2006).
Nothing in the governing statute requires the Attorney General to issue this unconstitutionally broad regulation; Congress has said only that the Attorney General “may” take DNA samples from arrestees. 42 U.S.C. § 14135a(a)(1)(A). If, after a careful, balanced analysis, the Attorney General agrees with the conclusion of Welfare of C.T.L. that arrestee collection violates the Fourth Amendment, he has both the statutory discretion and the constitutional duty to adopt regulations that prohibit such collection. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); Meredith Corp. v. F.C.C. 809 F.2d 863, 874 (D.C. Cir. 1987).
Interpol recently proposed an international genetic database that would allow DNA profiles collected at state and national levels to be shared internationally. The Final Report by the European Working Party on DNA profiling, which served as the basis for Interpol’s resolution on DNA profiling, failed to specify the need for due process or privacy standards for this massive database.
Recommendations
1. Direct the Attorney General to order a detailed analysis of the policy and legal issues surrounding the blanket collection of DNA from persons arrested for federal crimes and issue regulations that limit such collection to comply with the Fourth Amendment by prohibiting the taking of DNA samples from arrestees without a warrant.
2. Adopt a position with Interpol that any contribution to an international DNA databank will be dependent on adequate due process and privacy standards, and will be limited to records related to persons convicted of serious offenses.
Freedom of Information
Background
Democracy cannot flourish in an atmosphere of secrecy and unilateral assertions of executive privilege. Americans have a right to know what their government is doing and to insist that the executive branch act only within its constitutional bounds.
Recommendations
Direct the attorney general to rescind the “Ashcroft Doctrine” regarding Freedom of Information Act compliance, which instructs agencies to withhold information whenever there is a “sound legal basis” for doing so, and return to the compliance standard under Attorney General Janet Reno, which promoted an “overall presumption of disclosure” of government information through the FOIA unless it was “reasonably foreseeable that disclosure would be harmful.”
FOIA ombudsman
Background
As a result of continuous efforts by the Bush administration to undermine the Freedom of Information Act (FOIA), Congress enacted the “OPEN Government Act of 2007” to strengthen the public’s access to government documents. The act’s centerpiece was the creation of an ombudsman to help FOIA requesters resolve problems without having to resort to litigation. The ombudsman assists requesters by providing informal guidance and nonbinding opinions regarding rejected or delayed FOIA requests. The ombudsman also reviews agency compliance with FOIA.
President Bush transferred the FOIA ombudsman from the National Archives to the Justice Department even though the OPEN Government Act requires that the ombudsman position be located within the Archives. The president’s action violates the OPEN Government Act and effectively eliminates the ombudsman’s independent ability to ensure that the administration and federal agencies comply with FOIA.
Recommendations
Return the Freedom of Information Act ombudsman back to the National Archives and Records Administration from the Justice Department, as the law requires.
Scientific freedom
Background
The Bush Administration sought to increase political control over scientific and academic inquiry through a series of measures that served to undermine the integrity of regulatory science. A rule published by the White House Office of Management and Budget in 2007 granted the agency unprecedented power over federal agency peer review – including authority to impose highly rigid peer review requirements for scientific assessments and establish or approve processes for selecting reviewers. These powers afforded to OMB are entirely inappropriate, given the agency’s undeniable political motivations and its negligible scientific or peer review expertise.
Executive Order 13422, issued in January 2007, effectively repealed President Clinton’s Executive Order 12866 and expanded White House control of the review process. The order requires that each agency maintain a regulatory policy office run by a political appointee to supervise the development of rules and documents providing guidance to regulated industries. Federal agencies must identify “the specific market failure” or problem that justifies government intervention before deciding whether to issue regulations. The White House also must review “any significant guidance documents” before they are issued. By shifting the power to review the legitimacy of scientific findings from communities of scientists to the White House, the ruling did little to improve the quality of regulatory science, while leaving it more vulnerable to political whim.
Recommendations
Restore an appropriate balance between the White House Office of Management and Budget (OMB) and federal regulatory agencies. Specifically, repeal Executive Order 13422, which dramatically expanded the role of OMB in reviewing all agency regulations, and repeal OMB’s one-size-fits-all directives on peer review and risk assessment.
Signing statements
Background
President Bush has made a practice of issuing “signing statements” alongside legislation that he signs into law that include interpretations of or reservations from the underlying law that are at odds with the intent of Congress’s actions.
For example, on December 20, 2006, President Bush added a signing statement to HR 6407, the “Postal Accountability and Enhancement Act.” In the statement, Bush asserted he had the unprecedented authority to search Americans’ mail without a warrant. HR 6407 reiterated the 30-year-old prohibition on opening First Class mail of domestic origin without a warrant. In 1996, the postal regulations were altered to permit the opening of First Class mail without a warrant in narrowly defined cases where the postal inspector believes there is a credible threat that the package contains dangerous material, such as bombs. Instead of referencing the narrow exception in the postal regulations, the president’s signing statement suggests that he is assuming broader authority to open mail without a warrant.
Recommendations
1. Repudiate all signing statements that permit deviation from statutory law based on claims of inherent Article II power.
2. Reaffirm the president’s obligation to abide by acts of Congress as well as the federal courts’ exclusive role as interpreter of the law.
Presidential documents
Background
The Presidential Records Act of 1978 (PRA), 44 U.S.C. §§ 2201-07, was enacted following Watergate as an open government measure. Under the act, there is a presumption that presidential records will be released no later than 12 years after a president leaves office. The act transfers “ownership, possession, and control” of all presidential and vice-presidential documents from private to public hands. When the president and vice president complete their terms of office, the national archivist is required to assume custody of the records and make them publicly available whenever permitted under the PRA. Access to the records can be denied at the end of the 12-year embargo only if a former or incumbent president claims an exemption under a “constitutionally based” executive privilege or in the interests of national security.
In one of his last acts as president in January 1989, Ronald Reagan issued EO 12667, published at 54 Fed. Reg. 3403 (Jan. 16, 1989). That executive order established procedures for presidential review and approval of record dispositions recommended by the archivist.
On February 8, 2001, shortly after President Bush came into office, he was notified of a scheduled release of about 68,000 pages of presidential records from the Reagan administration. Following several extensions of time to review the records prior to release, President Bush issued EO 13233, published at 66 Fed. Reg. 56025 (Nov. 1, 2001). That executive order gives the president and any former president uncontrolled discretion to decide whether to release to the public presidential records subject to the PRA. EO 13233 has eviscerated the underlying purpose of the PRA. It has barred access to presidential papers for which there are no legitimate constitutionally based or national security grounds to do so, and instead has been used to prevent embarrassing or illegal actions from being made public.
Recommendations
1. Repeal EO 13233, the executive order limiting presidential authority to release presidential documents of his or her predecessor, and restore President Reagan’s EO 12667.
2. Issue an executive order confirming that the vice president is an entity within the executive branch and is subject to the same requirements as the president vis § vis the preservation of presidential records.
Federal websites
Background
Congress passed the E-Government Act of 2002, 44 U.S.C. §§ 101, et seq. to improve the management and promotion of electronic government services and processes through a federal chief information officer within OMB. It establishes several measures that require agency use of Internet-based information technology to improve public access to government information and services. The act became effective in April 2003. Although some federal agencies have made progress towards compliance, over five years later most still fall far short of full compliance with the law.
Recommendations
Issue an executive order to require full implementation of the E-Government Act by federal agencies, and to establish measures for accountability for those that fail to do so.
DOJ politicization
Background
As the hiring scandals of 2007-2008 revealed, the Department of Justice has become overly politicized in the past 8 years. Politics has been allowed to trump fidelity to the law.
Recommendations
The attorney general should create a blue-ribbon commission to study and make recommendations on remedying the politicization of the Department of Justice under the Bush Administration. The commission should report on its recommendations within 90 days.
Overclassification
Background
Overclassification of public documents is running rampant within the federal government. Ultimately, this threatens to poison the open functioning of government that is vital to a healthy, well-functioning democracy.
Recommendations
* End the practice of reclassifying declassified documents, revise classification procedures to end overuse, and end the practice of using control markings to improperly restrict public access to unclassified information.
* Reform military and intelligence classification rules to reduce unnecessary classification and reduce the time period materials may be classified in compliance with the Moynihan Commission Report.
* Educate classifying officials regarding the negative security consequences of over-classification and hold original classification authorities responsible for their classification decisions, with penalties for over-classification and rewards for disseminating information.
* Draft documents in a manner that allows the greatest distribution of information possible to those in the intelligence and law enforcement communities that can use the information to increase security, to members of Congress, and to the public at large.
Death penalty
Background
The federal death penalty system suffers from racial disparities. Race, class and geography play significant roles in who receives death sentences and who actually has the sentence imposed. One hundred and thirty innocent people have been released from death row and there is evidence that innocent people have been executed. As a result of this injustice some states have instituted moratoriums to study their capital punishment system. The federal death penalty also faces these problems.
In 2000, the United States Department of Justice produced a statistical report that demonstrated that the federal death penalty was plagued by racial disparities. After the 2000 statistical study was released, President Bill Clinton determined that the Department of Justice needed time to continue the examination of the federal capital punishment system and ordered more examination.
The new study was authorized by Janet Reno under the Clinton administration. A supplemental report was created by Attorney General John Ashcroft (the “Ashcroft Report”), but controversy resulted from its failure to account for race-of-the-victim discrimination.
The president of the United States has the constitutional power to declare a moratorium on the federal government’s use of capital punishment. Article II, Section 2, Clause 1 of the United States Constitution gives the president “Power to Grant Reprieves and Pardons for Offenses against the United States.” This authority allows the president to grant reprieves to everyone on federal death row until the issues of racial, ethnic and geographic disparities are studied and, if possible, addressed. The president can also exercise the pardon power to commute all of the sentences on federal death row that were given during this time of questionable justice.
Recommendations
1. Declare a federal death penalty moratorium until racial disparities are addressed.
2. Order a new federal study to examine, in particular, why cases are selected for federal prosecution instead of state prosecution, which cases receive plea offers, and the characteristics of cases in which the death penalty is sought by the attorney general.
Human rights treaties
Background
Since 1992, the U.S. has ratified three major human rights treaties in addition to two optional protocols. Yet, very little oversight and minimal legislative initiatives have focused on codifying the rights and obligations under these treaties and protocols. In most cases, U.S. action has been limited to the periodic reporting and review process by the Geneva-based committees monitoring compliance with these treaties. International human rights treaties should not be seen as merely non-binding international commitments between countries with no domestic effect, but rather must be treated as the supreme law of the land – exactly how the framers of the U.S. Constitution intended.
Recommendations
The new administration will have a unique opportunity to reassert the commitment of the United States to the rule of law as well as to send a clear message to the world regarding the new leadership role of the U.S. vis-a-vis human rights issues. Steps it should take to do that should include:
1. Fully implement U.S. treaty obligations by reactivating the Interagency Working Group on Human Rights Treaties (which under the Bush administration was replaced by the Policy Coordination Committee on Democracy, Human Rights and International Operations). The interagency working group was created under Executive Order 13107 on December 10 1998 with a strong mandate stating that “it shall be the policy and practice of the Government§fully to respect and implement its obligations under the international human rights treaties to which it is a party,” including the ICCPR (International Covenant on Civil and Political Rights), the CAT (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and the CERD (Convention on the Elimination of All Forms of Racial Discrimination), “and other relevant treaties § to which the United States is now or may become a party in the future.”
2. The Working Group should create an open and transparent process for treaty reporting, coordinated by permanent staffers (which is the practice for the State Department’s human rights reports on other countries). In particular, a database for tracking compliance with various treaty obligations should be continually updated and open to the public, and mechanisms should be created to allow for review of U.S. treaty reports by the public and other branches of government before their submission to international bodies.
3. The Working Group should compile a comprehensive human rights report on the United States on an annual basis (again, as is currently done by the State Department for other countries).
Mutual Legal Assistance Treaties
Background
Since 9/11, the United States has negotiated with other nations a series of new extradition treaties and Mutual Legal Assistance Treaties (MLATS), which govern how law enforcement agencies cooperate. Some of these agreements contain provisions that do not comport with International Human Rights principles – for example, insufficient protections against torture or abuse, or insufficient protections for the rights of criminal defendants to mount an adequate defense.
Recommendations
Open a review of all MLATs and extradition agreements negotiated by Bush Administration for the purpose of assuring that they conform to Human Rights Principles – for example, those contained in the International Covenant on Civil and Political Rights (ICCPR).
‘Special Administrative Measures’ for prisoners
Background
Less than two months after the September 11 terrorist attacks on the United States, the Department of Justice issued an interim rule that drastically expanded the scope of the Bureau of Prisons’ (BOP) powers under the special administrative measures (SAM) promulgated in the mid-1990’s after the first bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma. See 66 Fed. Reg. 55062 (October 31, 2001). The regulation became effective immediately without the usual opportunity for prior public comment. After 5,000 comments were submitted opposing the new regulations, the Bureau of Prisons finalized the rule nearly six years later in April of 2007. See 64 Fed. Reg. 16271 (April 4, 2007).
The April 2007 rules violate the attorney-client privilege and the right to counsel guaranteed by the Constitution. These SAM regulations allow the attorney general unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate confidentially with an attorney.
The provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who also have not been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime. 28 C.F.R. § 501.3(f).
Recommendations
1. The Justice Department should repeal the regulation that directs the Bureau of Prisons to facilitate the monitoring or review of communications between detainees and attorneys. Repeal the Special Administrative Measures (SAMs) that restrict communications by certain Bureau of Prisons detainees and prisoners, and end the ability of wardens and the attorney general to issue SAMs. In particular, 28 C.F.R. §§ 501.2(e), 501.3(d), (f) should be repealed. And 28 C.F.R. §§ 501.2(c), 501.3(c) should be amended to comply with the previous regulations.
2. Because of the extreme social isolation allowable under the SAMs, the BOP should conduct a mental health screening of all individuals currently subject to the SAM rules. This screening should be performed by competent and objective mental health personnel. Any individuals identified as seriously mentally ill should be immediately removed to an institution that can provide appropriate mental health services in an appropriate setting.
Prisoner communications
Background
On April 3, 2006, the Bureau of Prisons proposed a new regulation imposing severe restrictions on the ability of persons in bureau custody to communicate with the outside world. Although the regulation is titled “Limited Communication for Terrorist Inmates,” the regulation can be applied to persons who have not been convicted or charged with any act of terrorism, or indeed with any crime at all. See 71 Fed. Reg. 16520-16525 (Apr. 3, 2006). This proposed rule has never been finalized, although it is set for final action in November 2008.
The proposed regulation provides that a BOP warden may determine that a person in BOP custody has “an identifiable link to terrorist-related activity.” The warden’s actions are not subject to external review. 28 C.F.R. § 540.200(a). Once a person is so designated, his or her communications with the outside world are all but eliminated. See 28 C.F.R. §§ 540.202(a); 540.203(a); 540.204(a)(1). For example, there is no provision for communication with friends, relatives other than immediate family, or members of the news media.
The regulation also threatens the operation of a free press in that it would completely bar a class of persons from communicating with the news media in any form. Such a ban is unprecedented in American jurisprudence. Under existing case law it is also unconstitutional; the Supreme Court has consistently assumed that communications between prisoners and members of the news media enjoy constitutional protection.
The proposed regulation is also unnecessary as existing bureau regulations allow prison officials to control and limit prisoners’ correspondence, telephone calls, and visits, and to monitor those communications to detect and prevent possible criminal activity.
Recommendations
Withdraw Proposed Rule 28 CFR 540.200 et seq.
Crack/Powder Sentencing
Background
For 20 years, a disparity has existed in the Federal Sentencing Guidelines between the sentences given out for sale or possession of cocaine in its crack and powder forms. According to current guidelines, a conviction for the sale of 500 grams of powder cocaine results in a 5-year mandatory minimum sentence, while the same penalty is triggered for sale or possession of only 5 grams of crack cocaine.
This 100:1 disparity in the mandatory minimum sentences is not only unjust, it is unwarranted by the facts. Experts from the medical, scientific, and criminal justice communities have all testified that there is no basis for the sentencing disparity.
Recommendations
The attorney general should revise the US Attorneys’ Manual to require that crack offenses are charged as “cocaine” and not “cocaine base,” effectively resulting in elimination of the disparity.
There is currently no regulation in place to be amended or repealed; there is, of course, a federal statutory scheme that prohibits cocaine use unless pursuant to prescription or approved research. US Attorneys, however, have broad charging discretion to decide what types of cases to prosecute, and with drugs, what threshold amounts will trigger prosecution. The US Attorneys’ Manual contains guidelines promulgated by the attorney general and followed by U.S. Attorneys and their assistants.
Medical marijuana
Background
The treatment of medical marijuana in the United States has been punitive rather than recognizing the legitimate medical and humanitarian purposes to which the drug can be put.
For example, despite a federal law mandating “adequate competition” in the production of Schedule I drugs, marijuana remains the only scheduled drug that the DEA prohibits from being produced by private laboratories for scientific research (LSD, heroin and cocaine, are all available to researchers). Lyle Craker (who is represented by the ACLU), the director of the Medicinal Plant Program at the University of Massachusetts, applied over seven years ago to the DEA for a license to produce marijuana for use by scientists in clinical trials to determine whether marijuana meets the FDA’s standards for medical safety and efficacy. In February 2007, following a multi-year administrative law hearing, DEA Administrative Law Judge Mary Ellen Bittner issued an opinion and recommended urging the DEA to grant Craker’s application. But with no set deadline to respond, DEA appears to be using delay as its primary tactic as it has failed to respond to Judge Bittner’s opinion.
Recommendations
1. Halt the use of Justice Department funds to arrest and prosecute medical marijuana users in states with current laws permitting access to physician-supervised medical marijuana. In particular, the US Attorney general should update the US Attorneys’ Manual to de-prioritize the arrest and prosecution of medical marijuana users in medical marijuana states. There is currently no regulation in place to be amended or repealed; there is, of course, a federal statutory scheme that prohibits marijuana use unless pursuant to approved research. But US Attorneys have broad charging discretion in determining what types of cases to prosecute, and with drugs, what threshold amounts that will trigger prosecution. The US Attorneys’ Manual contains guidelines promulgated by the Attorney general and followed by US Attorneys and their assistants.
2. The DEA Administrator should grant Lyle Craker’s application for a Schedule I license to produce research-grade medical marijuana for use in DEA- and FDA-approved studies. This would only require DEA to approve the current recommendation of its own Administrative Law Judge.
3. All relevant agencies should stop denying the existence of medical uses of marijuana – as nearly one-third of states have done by enacting laws – and therefore, under existing legal criteria, reclassify marijuana from Schedule I to Schedule V. Just like Kratom helped me I’m sure marijuana is in the same league, it’s almost silly to put it in the same category as the other drugs.
4. Issue an executive order stating that, “No veteran shall be denied care solely on the basis of using marijuana for medical purposes in compliance with state law.” Although there are many known instances of veterans being denied care as a result of medical marijuana use, we have not been able to identify a specific regulation that mandates or authorizes this policy.
Discrimination against sexual minorities with federal dollars
Background
Policies that allow individuals to be denied jobs or lose them over factors that are unrelated to job performance or ability are unjust. Recognizing that, President Clinton in 1998 signed EO# 13087, w
