How to fix the executive branch.

Repairing some of the worst Bush administration screw-ups.
April 2 2008 7:11 AM

The Presidency

End the war on terror as a legal paradigm, abolish military commissions, and restore FISA.

With President Bush's approval rating hovering in the 30s, just about everyone has an opinion on what George W. has done wrong in the past seven years. But not everyone can explain what the next president must do to fix it. So we've called in some experts to tell us. Fixing It is a 10-part series to be published over the course of the week by some of our favorite writers, offering detailed policy prescriptions for the next president, whoever that may be, on how to quickly undo some of the damage that's been wrought. One of our contributors wryly describes the series as "News You Can Use. If You Happen To Be President." Read the other entries here.

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Cabin the scope of executive privilege.The next president must end the practice of invoking executive privilege to shield confidential presidential communications or advice from any examination by Congress absent an illicit legislative purpose, including exposure for the sake of political embarrassment. The next president should not defend the expansive claims of executive privilege of President Bush used to justify the nonappearances of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten before the House judiciary committee in the investigation of the firings of nine U.S. attorneys. The next president should initiate criminal prosecutions of the two for contempt of the House of Representatives.

Restore the role of warrants under FISA. The next president must immediately agree to go back to collecting foreign intelligence in conformity with the individualized warrant provisions of FISA. He or she should not seek an extension of the Protect America Act—which authorizes group warrants akin to general writs of assistance, which were anathema to the Founding Fathers and prohibited by the Fourth Amendment. We have yet to be provided any evidence that FISA handicaps the president's collection of foreign intelligence any more than do congressional restrictions on breaking and entering homes, opening mail, or torture. FISA functioned without complaint from any president for more than two decades before President Bush determined, in secret, to defy it in the aftermath of 9/11. And at this very moment, the president is operating under the old FISA law because the Protect America Act has not been extended with no proof of heightened danger to the nation. The next president should also convene a grand jury to determine whether the government participants, in flouting FISA, should be criminally prosecuted—including President Bush and Vice President Dick Cheney. If the rule of law means anything, it means that occupants of the highest offices must turn square constitutional corners.

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Restore the state secrets privilege to ensure justice to victims of constitutional misconduct. This doctrine is a rule of evidence fashioned by the courts, not a constitutional requirement. The Bush administration has successfully invoked the state secrets privilege to deny a remedy for victims of its own constitutional wrongdoing, for example, the kidnapping, imprisonment, and maltreatment of Khaled El-Masri. When he sued the culpable unnamed CIA operatives, his case was dismissed because the identities of the constitutional scofflaws were a state secret, a ruling more Kafkaesque than Kafka. The new president should submit legislation that would require a default judgment in favor of victims of unconstitutional conduct if the state secrets privilege is invoked by the president to deny the plaintiffs a fair opportunity to prove their claims.

Torture should be categorically renounced. President Bush has hedged on whether he would torture suspected al-Qaida detainees in hopes of extracting intelligence. There is no evidence that torture works. The Defense Department and the FBI renounce water-boarding, and intelligence veterans concur that information derived from torture is worthless. Moreover, if the United States tortures, the risk of torture to our own captured soldiers climbs exponentially. The new president should categorically renounce torture. It cannot be justified pragmatically. And no civilized nation stoops to imitate the savagery of its enemies.

The ultimate stewards of the Constitution are We the People. Grover Cleveland amplified this in his first inaugural address: "Every citizen owes to the country a vigilant watch and close scrutiny of its public servants and a fair and reasonable estimate of their fidelity and usefulness. Thus is the people's will impressed upon the whole framework of our civil polity … and this is the price of our liberty and the inspiration of our faith in the Republic."

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.