Yesterday, I had the chance to sit down with Bill Moyers and discuss some of the challenges we face at this pivotal moment for our country, after one of the most remarkable elections in American history. Barack Obama’s election is a chance for renewal after eight years of the Bush Administration; now that we’re no longer circling the wagons against attacks on our core progressive principles, we can work to advance those principles in this new era. I invite you to take a look at our conversation, which touched on how progressives are defined by their history of fighting for the middle class, a clean and open government and a government that looks out for all members of society without getting in the way. At the beginning of this new era, we discussed the kind of change that progressives should be fighting for right now.
One area we spoke about at length, restoring the rule of law, has to be a top priority. Our founding fathers laid down a basic principle -- that we are a nation of laws and that no one, including the president, is above the law. From Guantanamo Bay and warrantless wiretapping to torture and excessive secrecy, the Bush administration has turned this principle on its head. The Constitution states that it and the laws of the United States are "the supreme Law of the Land." Yet, the current administration has claimed unprecedented powers as it has ignored or willfully misinterpreted the laws on the books.
While Americans’ decisive call for change this election was a clear repudiation of the Bush administration’s conduct, failing to act swiftly to reverse the damage could essentially legitimize that conduct and the extreme legal theories on which it was based. That is why it is critically important for President-elect Obama to unequivocally renounce President Bush’s extreme claims of executive authority. As I mentioned in the interview yesterday, stating this position clearly in the inaugural address would affirm to the nation, and the world, that respect for the rule of law has returned to the Oval Office.
This declaration should be followed with quick action, to ensure that history sees the outgoing administration’s actions as an aberration and not a redefinition of executive power. I plan to try to help our new President by presenting him with a range of recommendations for restoring the rule of law from constitutional, legal and historical experts. In September, I held a hearing in the Senate Judiciary Constitution Subcommittee on what should be done to restore the rule of law. An impressive array of experts set forth detailed recommendations and proposals. I hope the record of this hearing will provide President-elect Obama with a useful blueprint for his efforts, just as it will help inform my work in the Senate.
The recommendations primarily focus on four key areas – the separation of powers among the branches, government secrecy, detention and interrogation policy, and protecting the privacy of law-abiding Americans. Following my hearing in September, I laid out many of these potential changes in a speech from the Senate floor, which I also invite you to read to get a sense of what needs to be done.
I am happy to see that this issue has been gaining traction in the media and on the blogs. Roger Cohen had a good piecein the New York Times last week on this issue and Andrew Sullivan made it a focus of his endorsement of President-elect Obama. Just yesterday, former Salt Lake City Mayor Rocky Anderson blogged here about his effort to help restore the rule of law. There's even a Facebook page on this topic. We’ve also seen positive signs from the President-elect, himself. He’s already strongly suggested that closing Guantanamo is a priority.
I am hopeful that with the election of Barack Obama, the assault on our Constitution will end. The good news is that unlike many of the challenges President Obama will face, significant action to restore the rule of law can begin on day one. Through executive action, much of the damage to the rule of law can be reversed, paving the way for additional corrective action in Congress. By moving quickly to restore the rule of law, President-elect Obama can right the balance of power, and ensure that the Bush administration’s disregard for the Constitution is truly past, not prologue.
Thank you everyone for sharing your thoughts. I certainly understand the desire expressed by many of you for accountability. During my hearing, some of the witnesses suggested an independent commission to look into the Bush administration's actions. Some of you here have expressed your support for that, as well. I am open to that, and I also believe Congress should do all it can to learn about what exactly went on in the Bush administration.
In addition to ensuring accountability, we also have to right the ship. We need to make the changes necessary to help ensure the actions we saw by the Bush administration don't happen again. That is paramount. Sny asked what structural changes need to be put in place to ensure this never happens again. My response is that there's a lot that could be done in the four areas I outlined – separation of powers, excessive government secrecy, detention and interrogation policies, and protecting the privacy of law-abiding Americans. Here are just a few examples:
Separation of powers – The Bush administration regularly asserted that under Article II of the Constitution, it could ignore the laws that Congress passed, as we saw with the warrantless wiretapping program. The administration also regularly stonewalled Congress. For example, the administration often kept the full Intelligence Committees in the dark regarding intelligence activities, choosing to inform only the "Gang of Eight" – the House and Senate party leaders along with the leadership of the House and Senate Intelligence Committees – even where the law required broader disclosure. This should never happen again. While Congress must reassert itself, the executive branch also must respect the role of Congress, something I am confident President-elect Obama will do.
Excessive government secrecy - The new administration also must put an end to excessive government secrecy. The Bush administration abused the state secrets privilege repeatedly, invoking the privilege as a shield to avoid accountability in court for wrongdoing. The Obama administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was appropriate, and Congress should pass legislation to allow more meaningful judicial scrutiny when the privilege is invoked. And as part of its review of Bush administration executive orders, the new administration should rewrite President Bush's executive order regarding classification policies to discourage over-classification and to facilitate declassification where appropriate.
Detention and interrogation policies - The detention and interrogation policies of the last eight years are perhaps the most potent reminder of how the current administration undercut our nation's highest ideals. Haunting images from Abu Ghraib and Guantanamo undermined our standing in the world. There has been a nearly universal call, including from President-elect Obama during the campaign, to close the facility at Guantanamo Bay. Now the hard work of doing so must begin. The new administration also should unequivocally ban the use of torture and establish a single, government-wide standard of humane detainee treatment -- I have supported efforts to make the Army Field Manual that standard.
Protecting the privacy of law-abiding Americans - Steps must be taken to restore Americans' privacy, as well. The December 2005 revelation that the NSA had illegally spied on Americans at home showed the level of contempt the Bush administration had for the rule of law. Congress did not help matters by responding with enactment of the deeply flawed FISA Amendments Act, which granted the executive branch more surveillance powers. The over-the-top rhetoric of the Bush administration during that bill's consideration was reminiscent of the fear mongering that led to the enactment of the Patriot Act after 9/11. With the election of Barack Obama, we must undertake a comprehensive review of intelligence activities that affect the privacy of Americans. The new president should support reasonable changes to the Patriot Act when it comes up for reauthorization in 2009, as well as the FISA Amendments Act. His administration should also reconsider the new last-minute executive branch policies governing the rules for domestic FBI investigations that just went into effect last week.