WASHINGTON - In a Senate hearing room in September, weeks before Barack Obama won
the election, a series of law professors, lawyers and civil
libertarians outlined one of the biggest challenges that will be facing
the next president: bringing the United States government back under
the rule of law.
Over the past eight years, they testified, American legal traditions
have been degraded in areas ranging from domestic spying to government
secrecy. The damage that has been done by President Bush, Vice
President Dick Cheney, former Attorney General Alberto Gonzales and
others is so grave that just assessing it will be an enormous task.
Repairing it will be even more enormous.
This was not a new complaint. Civil liberties advocates have been
sounding the alarm for years. The difference now is that a Democrat is
about to assume the presidency, and one of the most ardent defenders of
civil liberties in his party - Senator Russ Feingold of Wisconsin - is
dedicated to putting the restoration of the rule of law on the agenda
of the incoming government, with the support of the American Civil
Liberties Union and other groups.
Mr. Feingold, who is chairman the Senate Judiciary Committee's
subcommittee on the Constitution, already has left his imprint on
campaign finance, with the McCain-Feingold law, and has been a leading
critic of pork-barrel spending and corporate welfare.
Now he has a new cause. Before the election, Mr. Feingold argued
that whoever won should make a priority of rolling back Bush
administration policies that eroded constitutional rights and disrupted
the careful system of checks and balances. Now that Mr. Obama - a
onetime constitutional law professor who made this issue a cause early
in the campaign - has won the election, there is both reason for
optimism and increased pressure on the president-elect to keep his
Mr. Feingold has been compiling a list of areas for the next
president to focus on, which he intends to present to Mr. Obama. It
includes amending the Patriot Act, giving detainees greater legal
protections and banning torture, cruelty and degrading treatment. He
wants to amend the Foreign Intelligence Surveillance Act to restore
limits on domestic spying. And he wants to roll back the Bush
administration's dedication to classifying government documents.
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Many reforms could be implemented directly by the next president.
Mr. Obama could renounce Mr. Bush's extreme views of executive power,
including the notion that in many areas, the president can act as he
wants without restraint by Congress or the judiciary. Mr. Obama also
could declare his intention not to use presidential signing statements
as Mr. Bush did in record numbers to reject parts of bills signed into
Congress also has work to do. Many of the excesses of the last eight
years have been the result of Mr. Feingold's colleagues' capitulation
as much as presidential overreaching. He expects Congress to do more
than just fix laws like the Patriot Act. He wants the Senate to
question presidential nominees closely at their confirmation hearings
about their commitment to the rule of law. And he hopes Congress will
do its duty to impose the rigorous supervision it rarely imposed in the
Restoring the rule of law will not be easy, Mr. Feingold concedes.
Part of the problem is that it is hard to know how much damage has been
done. Many programs, like domestic spying and extraordinary rendition -
the secret transfer of detainees to foreign countries where they are
harshly interrogated - have operated in the shadows.
And it would be a mistake to overlook Congress's role. Members from
both parties voted for laws like the Military Commissions Act of 2006,
which stripped detainees of habeas corpus rights, and looked the other
way while the rule of law was diminished.
Still, Mr. Feingold is convinced that this is a critical moment. If
the next president does not reverse the Bush administration's
doctrines, he fears that they will no longer simply be the policies of
one extremist president. The danger is that they will be the nation's
new understanding of the Constitution.