In a Senate hearing room in September, weeks before US president-elect 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 US government back under the rule of law.
Over the past eight years, they testified, US legal traditions have been degraded in areas ranging from domestic spying to government secrecy. The damage that has been done by US President George W. 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.
Feingold, who is chairman of the Senate Judiciary Committee’s subcommittee on the Constitution, has already 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, 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 Obama — a former 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 promises.
Feingold has been compiling a list of areas for the next president to focus on, which he intends to present to 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.
Many reforms could be implemented directly by the next president. Obama could renounce 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. Obama also could declare his intention not to use presidential signing statements as Bush did in record numbers to reject parts of bills signed into law.
Congress also has work to do. Many of the excesses of the last eight years have been the result of 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 Bush years.
Restoring the rule of law will not be easy, Feingold said. 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’ 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, 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.
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