I was on a call today with Caroline Frederickson of the ACLU, talking about their efforts to push rule of law issues to the fore with the incoming Obama Administration and the 111th Congress.  They’ve posted a link to their full agenda here, including a link to ACLU’s recommendations to the transition team.  

The report itself outlines any number of issues we’ve been talking about for ages as needing reform, including broad-brush emphasis on:

The branches of our government, co-equal in theory, are out of balance. The executive branch has overreached – engaging in unlawful and immoral torture, conducting warrantless wiretapping, illegally detaining innocent individuals without judicial authority, spying on citizens based on race, ethnicity, religious or political views. The legislative branch has acquiesced in many of these efforts and failed until recently to exercise its oversight authority to call the administration into account. The judicial branch, meanwhile, has curtailed programs designed to protect vulnerable populations from discrimination. It’s time for a new paradigm.

Congress must conduct a full investigation into the abuses of executive authority in the years since 9/11 and the new administration should promptly appoint a special counsel to investigate and, if appropriate, prosecute those who may have broken the law. Just as importantly, Congress must undertake, and the President must support, a comprehensive legislative program to restore the rule of law and the rights of individual Americans, including the following: 

– Restoring appropriate limits on governmental power
— Re-establishing and advancing each individual’s right to live free of discrimination; and
— Setting meaningful standards to re-establish and preserve the right to speak freely.

Particular issues highlighted include reforms to:  interrogation and detention; PATRIOT Act; REAL ID; state secrets; drug sentencing, juvenile justice and civil liberties strenghtening, including issues of racial profiling; employment discrimination; and strengthening first amendment protections, including issues surrounding FISA and elsewhere. More on this going forward, I’m certain. 

Additionally, the Center for Constitutional Rights (CCR) held a press call yesterday regarding the need to close Gitmo, including issuing a fairly thorough report on a number of the issues involved in that.  The call included some difficult discussion about some of the juvenile detainees — kids who were picked up as teenagers and who have been held at Gitmo for years.

Said Vincent Warren, Executive Director of the Center for Constitutional Rights, “On the seventh anniversary of the arrival of the first detainees it turns out the single most important factor in determining who still remains at Guantánamo is nationality— whether we’re talking about the approximately 60 men who cannot be returned home and need other countries to take them in or about which countries have had the clout to get their people home. Closing the place down is not the great challenge it’s being made out to be. Let us close Guantánamo without delay and close this shameful chapter in our nation’s history. Let’s do it and be done with it.”

Yesterday on “This Week with George Stephanopoulos,” President-elect Obama called closing the infamous prison camp “more difficult than a lot of people realize,” yet the attorneys who filed the first cases on behalf of the detainees and are more knowledgeable about the issue than most disagree.

“One of the most important things President Obama can do is shut down the fatally flawed military commissions on Day 1,” said Lieutenant Commander William Kuebler, U.S. military defense counsel for Canadian juvenile Omar Khadr. “If he does not act in the first six days of his administration, he will be the first president in U.S. history to preside over the trial of a child soldier for war crimes.”

CCR has also issued a number of white paper reports for which they have been meeting with the Obama transition team and members of Congress in an effort to push forward a rule of law agenda in upcoming months.

Additionally, the NYTimes recently printed three op-eds on restoration of the rule of law and accountability for torture and other lawbreaking the last few years from Dahlia Lithwick, Jack Balkin and Charles Fried.  I found Dahlia’s particularly compelling, especially this quote from Robert Jackson:

“Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.”

Amen. I am awfully glad to see this discussion in such a highly public forum. 

There have been a number of mixed signals in recent days about all of these issues. But some very hopeful ones as well, including some coming from members of Congress (more on that to come). Restoration of the rule of law is not going to happen overnight — but the fact that people are not only thinking seriously about needed changes, but pushing hard for them? That’s the most hopeful sign of all.

Video from Rachel Maddow interview with Gitmo defense lawyer AF Major David J. R. Frakt


Related posts:

  1. Restoring the Rule of Law: Absence of Action is a Policy Choice, Too
  2. White House Denies Existence of Indefinite Detention Order; ACLU Demands Accountability
  3. CIA Torture Report Remains Under Wraps; Has Rule of Law Resurfaced?
  4. Harry Reid “Would Welcome a Legislative Proposal” to Repeal DADT
  5. On the Rule of Law and Crimes of Torture