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The policies of the past eight years have greatly weakened our nation: Our freedoms, our values, and our international reputation have been seriously undermined. But 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. President Barack Obama will need all of these tools to restore our freedoms and move the country forward.
Restoration of our country's rule of law 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. 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.
Torture and abuse.
[ 1/22/2009: President Obama Orders Guantánamo Closed And End To Torture ]
[ 4/22/2009: Attorney General Holder Says He Will "Follow The Law" And Investigate Torture ]
[ 4/27/2009: Obama Administration Produces First List Of Human Rights Commitments ]
President Obama 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.
Guantánamo and the rule of law for detainees.
[ 1/22/2009: President Obama Orders Guantánamo Closed And End To Torture ]
[ 3/13/2009: Justice Department Adheres To Key Elements Of Bush Administration Detention Policy ]
[ 4/22/2009: Judge Upholds Guantanamo Prisoner's Right To Challenge Indefinite Detention ]
On the first day in office, the president should order the shutdown of the Guantánamo 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.
Extraordinary rendition.
[ 1/22/2009: President Obama Orders Guantánamo Closed And End To Torture ]
[ 2/11/2009: Both Houses Of Congress Urge State Secrets Reform ]
[ 2/23/2009: Obama Administration Continues Indefinite Detention Policy For Bagram Prisoners ]
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.
Warrantless spying.
[ 2/11/2009: Both Houses Of Congress Urge State Secrets Reform ]
[ 4/16/2009: NSA Spies On Americans Outside The Law ]
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.
Watch lists.
[ 2/4/2009: House Passes Bill Providing Redress For Those Erroneously Placed On 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.
Freedom of Information - Ashcroft Doctrine.
[ 1/21/2009: Presidential Memorandum Lets Sun Shine On Government Secrecy ]
[ 3/19/2009: Attorney General Issues New Freedom Of Information Act Guidelines ]
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."
Monitoring of activists.
[ 4/06/2009: Fusion Center Declares Nation's Oldest Universities Possible Terrorist Threat ]
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.
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 Special Litigation Unit of Civil Rights Division - reinvigorate prosecution of pattern and practice law enforcement misconduct cases, rebuild docket of prison conditions of confinement cases and where appropriate seek consent decrees by accepting admissions of constitutional violations.
Real ID Act.
[ 2/11/2009: House and Senate Pass Bills Refusing to Fully Comply with the Federal Real ID Law ]
Direct the Secretary of Homeland Security to suspend the regulations (73 Fed. Reg. 5272) for the Real ID Act pending congressional review.
Abortion gag rule.
[ 1/23/2009: ACLU Praises Obama's Decision To Rescind Global 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.
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.
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.
"Faith-based initiatives."
[ 2/05/2009: White House Announces Troubling Faith-Based Order, ACLU Says Administration Is Heading Into Uncharted Waters ]
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.
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