Feingold Calls on President-Elect to Take 'Concrete Steps' to Restore Rule of Law

For Immediate Release

US Senator Russ Feingold
Contact: 

Zach Lowe (202) 224-8657

Feingold Calls on President-Elect to Take 'Concrete Steps' to Restore Rule of Law

WASHINGTON - U.S. Senator Russ Feingold is urging President-elect Barack
Obama to take "concrete steps" to restore the rule of law
after the eight-year assault by the Bush Administration on the Constitution.
In a letter to the President-elect, Feingold offered recommendations
for action in four key areas - the separation of powers, excessive
government secrecy, detention and interrogation policy, and domestic
surveillance and privacy. In addition to outlining specific actions
the new administration should take, Feingold called on the new president
to clearly and unequivocally renounce President Bush's extreme
claims of executive authority. In the letter, Feingold suggested to
the President-elect that mentioning the issue during his inaugural address
would "affirm to the nation, and the world, that respect for the
rule of law has returned to the Oval Office."

"In light
of this recent history, I believe that one of the most important things
that you can do as President is to take concrete steps to restore the
rule of law in this country - that is, to return to the White
House respect for an appropriate separation and balance of powers among
the branches, for the President's important but not paramount
place in our constitutional system of government, for the laws that
Congress writes and the importance of its oversight functions, and for
the judiciary's crucial role in interpreting the law." Feingold
wrote. "As I know you recognize, we can protect our national security
- in fact, we can do it more effectively - without trampling
on the rights of Americans or the rule of law."

In September, Feingold
chaired
a hearing
in the Senate Judiciary Committee's Constitution
Subcommittee entitled "Restoring the Rule of Law." The hearing
featured testimony and recommendations from about forty historians,
law professors and advocacy organizations, including the head of President-elect
Obama's transition team, John
Podesta
. Feingold provided a copy of the written record of the hearing
to the President-elect. The recommendations include:

  • Closing the
    facility at Guantanamo Bay - a step Obama has supported
  • Banning torture and establishing a single, government-wide
    standard of humane detainee treatment
  • Conducting a comprehensive review of Office of Legal Counsel opinions
    and repudiating or revising those that overstate executive authority
  • Supporting significant legislative changes to the Patriot Act and
    the FISA Amendments Act
  • Cooperating with congressional oversight, including providing full
    information to intelligence committees
  • Establishing presumptions of openness and disclosure in making decisions
    on the classification of information and responding to requests under
    the Freedom of Information Act.

The text of the
letter is below:

December 10, 2008

The Honorable Barack
Obama

President-elect of the United States

451 Sixth Street NW

Washington, D.C. 20001

Dear President-elect
Obama:

Congratulations
on your historic election. You will take office in difficult times,
and I wish you the best of luck with the challenges you will confront.
I stand ready to help you in any way that I can.

While you will
face many difficult issues in the comings months and years, I want to
raise one that I believe is critical for the presidential transition:
restoring the rule of law. The countless abusive policies of the past
eight years and the extreme legal theories on which they were based
have left our nation weaker and our constitutional framework in a precarious
position. In light of this recent history, I believe that one of the
most important things that you can do as President is to take concrete
steps to restore the rule of law in this country - that is, to
return to the White House respect for an appropriate separation and
balance of powers among the branches, for the President's important
but not paramount place in our constitutional system of government,
for the laws that Congress writes and the importance of its oversight
functions, and for the judiciary's crucial role in interpreting
the law. I am sure that as a constitutional scholar you can appreciate
that we must ensure that the Bush Administration's views of executive
supremacy do not become so ingrained in our system of government that
they become the "new normal."

As I know you recognize,
we can protect our national security - in fact, we can do it more
effectively - without trampling on the rights of Americans or
the rule of law. I am pleased that your transition team is already working
to address a number of rule of law issues, and I am confident that you
are committed to undoing the damage of the past administration.

In September, I
chaired a hearing in the Constitution Subcommittee of the Senate Judiciary
Committee to examine concrete steps that can be taken to restore the
rule of law. The subcommittee received detailed recommendations and
proposals from an impressive array of experts, including historians,
law professors and advocacy organizations. Many of these contributors
are very familiar to you and are working with your transition team.
I am enclosing a copy of the written record of that hearing, which you
can also find on my website at www.feingold.senate.gov/ruleoflaw
and on the Government Printing Office website at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_senate_hearings&docid=f:45240.pdf
and http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_senate_hearings&docid=f:45240err.pdf.
I hope you and your team find the hearing record useful as you prepare
to take office.

All three branches
of government must be engaged in the process of restoring the rule of
law, but the role of the President is particularly important because
turning back the excesses of the Bush Administration may be seen in
some respects as contrary to the institutional interests of the presidency.
That is why it is all the more important that you clearly and unequivocally
renounce, early in your tenure, President Bush's extreme claims
of executive authority. Indeed, stating this position in your inaugural
address would affirm to the nation, and the world, that respect for
the rule of law has returned to the Oval Office. I urge you to take
the opportunity in your first speech as President to make a strong and
clear statement of your intention to restore the rule of law in our
country.

In addition, I
want to draw to your attention some particularly significant recommendations
for executive branch action that came out of the hearing, and that I
hope will receive your serious consideration. I will be working separately
to advance other, related proposals that clearly require legislative
action. Most of the recommendations below can be acted on early in your
administration. They fall into four categories: separation of powers;
excessive government secrecy; detention and interrogation policy; and
domestic surveillance and privacy.

  • Separation of
    Powers
    • The new administration should make the restoration
      and advancement of the rule of law an overarching theme. This
      should include an explicit rejection of the extreme theory of
      Article II executive power that the Bush administration has used
      to justify torture and illegal warrantless wiretapping; a pledge
      to work with Congress to give priority to measures to restore
      public confidence in the rule of law; and an announcement of a
      zero tolerance policy for official misconduct.
    • The new administration should recognize and cooperate with the
      legitimate oversight function of Congress. In certain key areas
      like interrogation policy and surveillance, Congress was kept
      in the dark for years and there remain significant impediments
      to congressional inquiries. I urge your administration to provide
      requested information on these issues to Congress as soon as possible
      and to cooperate with future oversight efforts.
    • The new administration should view the congressional intelligence
      committees as a partner rather than a nuisance. It must commit
      to full compliance with the National Security Act, ending the
      abuses of the limited "Gang of Eight" notifications
      and ensuring that the full committees are kept fully and currently
      informed of all intelligence activities.
    • The new administration should conduct a comprehensive review
      of opinions issued by the Department of Justice Office of Legal
      Counsel (OLC) under the Bush administration, and repudiate or
      revise those that overstate executive authority.
  • Excessive Government
    Secrecy
    • The new administration should conduct a review
      of pending cases in which the state secrets privilege has been
      invoked to assess whether the invocation was proper. It should
      also support legislative efforts, such as the State Secrets Protection
      Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny
      when the privilege is invoked.
    • The new administration should rewrite President Bush's
      executive order regarding classification policies and procedures
      (Executive Order 13292) to reinstate provisions from the previous
      classification order (Executive Order 12958, signed by President
      Clinton) that established a presumption against classification;
      allowed senior agency officials to declassify information in certain
      exceptional cases; and prohibited re-classification of properly
      declassified information. The new administration also should seriously
      consider ordering each entity with classification authority to
      do a thorough review of its classification policies and practices
      to reduce over-classification.
    • The new administration should reverse the October 2001 "Ashcroft
      Memorandum," which stated that the Justice Department will
      defend an agency's decision to withhold a document requested
      under the Freedom of Information Act if the document even arguably
      falls within one of FOIA's exemptions. Instead, the new
      administration should reinstate the presumption of disclosure
      established under a 1993 memorandum issued by Attorney General
      Reno, which stated that DOJ will defend an agency's decision
      to withhold a document only if the agency reasonably foresees
      that disclosure would be harmful to an interest protected by one
      of FOIA's exemptions.
    • Past and future memoranda and opinions issued by the Department
      of Justice Office of Legal Counsel should be made available to
      the public to the maximum extent possible. In addition, public
      release early in your administration of some of the more controversial
      OLC opinions governing interrogation policy and warrantless wiretapping
      (redacted, if necessary, to protect sources and methods) would
      help assure Congress and the American people that the new administration
      is committed to transparency and the rule of law.
    • The new administration should revoke Executive Order 13233,
      issued in November 2001. This executive order limited public access
      to presidential records by allowing former presidents and their
      heirs to block access to presidential records, and by creating
      a new vice presidential privilege. Revoking it would simply give
      effect once again to the longstanding regulations of the National
      Archive and Records Administration governing the release of presidential
      records.
  • Detention and
    Interrogation Policy
    • The new administration should express its unqualified
      commitment to enforcing the ban against torture and cruel, inhuman
      and degrading treatment, and should establish as a matter of policy
      a single, government-wide standard of humane detainee treatment.
      I have supported efforts in Congress to make the Army Field Manual
      on Human Intelligence Collector Operations that standard. The
      new administration should revoke all existing orders and legal
      opinions authorizing cruel interrogations, including Executive
      Order 13440 and any relevant opinions of the OLC.
    • The new administration should commit to providing timely notification
      of and access to the International Committee of the Red Cross
      for any and all detainees held in U.S. custody anywhere in the
      world.
    • The new administration should close the facility at Guantanamo
      Bay, as you have pledged to do. Closing Guantanamo raises a number
      of complex questions, many of which were addressed in the hearing
      submissions. I hope those submissions can serve as a resource
      to your administration in addressing these difficult issues. As
      you tackle the Guantanamo problem, however, I urge you not to
      establish an entirely new preventive detention regime based on
      concerns about a very small number of difficult cases.
    • The new administration should reject the flawed military commission
      trial system being used at Guantanamo Bay.
    • The new administration should develop effective means of enforcing
      the ban against rendering individuals to countries where they
      have a credible fear of being tortured.
  • Domestic Surveillance
    and Privacy
    • As an early
      demonstration of the new administration's commitment to
      transparency and cooperation with Congress, I urge you to declassify
      basic information about the implementation of controversial provisions
      of the USA Patriot Act to allow more open consideration and debate
      when that legislation is reauthorized in 2009. I can discuss with
      your transition team in a classified setting some of the information
      that I believe can be declassified without compromising national
      security.
    • The new administration should support significant
      legislative changes to domestic surveillance authorities as part
      of the 2009 Patriot Act reauthorization process, including reforms
      to the National Security Letter statutes and others. It should
      commit to working collaboratively with Congress on this legislation,
      rather than in the counter-productive adversarial posture that
      the Bush administration has so frequently adopted.
    • I believe that Congress should undertake a comprehensive review
      of domestic intelligence activities and authorities to assess
      the most effective ways to prevent a terrorist attack and collect
      other critical intelligence while also protecting the rights of
      Americans - and it will be critical to have the cooperation
      of the new administration if such a review goes forward. This
      review should include an assessment of the threat inside the U.S.,
      an evaluation of all current laws and their implementation, and
      a review of the respective roles of relevant agencies and departments.
    • The new administration should support significant legislative
      changes to the FISA Amendments Act to ensure that it is effective
      in combating terrorism and collecting foreign intelligence while
      also protecting the privacy of innocent Americans. At the same
      time, the new administration should incorporate more privacy protections
      - such as stronger minimization procedures to limit the
      use of information gathered about Americans - into its implementation
      of the legislation. I can make more specific suggestions in a
      classified setting for important changes in implementation that
      can be made by the executive branch without congressional action.
    • The new President and Attorney General should reconsider the
      new Attorney General Guidelines governing FBI investigations that
      went into effect on December 1, 2008, to make sure the FBI is
      devoting its limited resources to the greatest threats and not
      wasting its time investigating people who have done nothing wrong.
      In particular, investigations based on ethnic or racial profiling
      or the First Amendment-protected activities of the targets should
      not be countenanced.

Finally, I want
to raise with you the need for a detailed accounting of what happened
over the past eight years, and how the outgoing administration came
to reject or ignore so many of the principles on which this nation was
founded. It seems to me that we must fully understand the mistakes of
the past in order to learn from them, address them, and prevent them
from recurring. At the same time, there need not be a focus on retribution
or pay-back, and such an effort should not be used to score partisan
points. There are a range of options for ensuring that this very important
endeavor takes place. I hope you agree that this kind of accounting
is needed and would welcome your input on the most efficient and credible
way to bring it about.

I and my staff
would be happy to discuss these issues in further detail if it would
be helpful. I look forward to working with you on this and many other
initiatives in the coming years.

Sincerely,

Russell D. Feingold

United States Senator

 

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