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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President George W. Bush's successor should renounce his monarchy. It betters the instruction of King George III, which provoked the Declaration of Independence. Among other things, the 44th president of the United States should do the following promptly upon taking office: Transfer the impending trials of six "high-value" al-Qaida detainees before Spanish Inquisition-like military commissions to civilian courts; repudiate President Bush's kidnappings, secret imprisonments, and maltreatments of suspected al-Qaida supporters abroad on his say-so alone—a page from Hobbes' state of nature; denounce signing statements that declare the president's intent to disregard provisions of bills he has signed into law because he disputes their constitutionality; and end the snobbish custom of former government Brahmins preening in their honorifics after leaving office. The Founding Fathers prohibited titles of nobility to encourage a nonhierarchical culture that honors equality before the law.

Robert Draper recounts in Dead Certain: The Presidency of George W. Bush an alarming averment by the current occupant of the White House. Without blushing, Mr. Bush insisted to his biographer: "You can't learn lessons by reading. Or at least I couldn't." Here's a to-do list for his successor:

Fix-it List: Executive Branch
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Put an end to the imperial presidency. President Bush has usurped what Gen. Washington and the Founding Fathers reprehended: unchecked power that sacrifices fundamental liberties to trust in the president. To paraphrase Lord Acton, absolute power corrupts absolutely. Just ask President Bush's kidnap-and-torture victims, including Khaled El-Masri, Abu Omar, or Maher Arar. The Constitution's marquee is checks and balances, a system predicated upon a suspicion of human nature. James Madison sermonized in "The Federalist No. 51": "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

To restore the constitutional equilibrium envisioned by the Founding Fathers, the next presidential inaugural should enumerate the following particulars.

End the "war on terror" as a legal paradigm.International terrorists are criminals, not warriors. The next president should see to it that terrorists will be captured, interrogated, prosecuted, and punished according to civilian law. The United States is not at war with international terrorism. The next president should ensure that we do not brandish the weapons of war in lieu of traditional law enforcement against international terrorists.

If the conflict of the United States with international terrorism amounts to a war, then this nation is permanently at war—a condition the Founding Fathers insisted was irreconcilable with freedom. War crowns the president with monumental powers and sweeping secrecy. It tends to gratify popular bigotries and encourages a conflation of any dissent with treason. Remember the imprisonment of Eugene Debs; the concentration camps for 120,000 Japanese-Americans; the burglary of the office of Lewis Fielding, Daniel Ellsberg's psychiatrist; and President Bush's water-boarding and warrantless spying on American citizens in criminal contravention of the Foreign Intelligence Surveillance Act of 1978. The next president must recognize the fundamental dangers of a permanent state of war and the granting of infinite power as commander in chief 

Abolish military commissions.Under the new president, military commissions should be promptly abolished. No citizen or noncitizen should be detained without charges as an unlawful enemy combatant. No detainee in the custody of the United States should ever again be denied an opportunity to challenge the factual or legal basis for his detention before an impartial judge in habeas corpus proceedings. The Classified Information Procedures Act of 1980 should be employed to prosecute terrorists without compromising national security. Ramzi Yousef, Zacarias Moussaoui, and Jose Padilla—among other accused terrorists—all have been successfully prosecuted under CIPA. Existing criminal conspiracy law should be employed to thwart terrorist plots in their pre-embryonic stages. Although we seem to have forgotten this fact of late, the criminal law is both forward- and backward-looking.

Withdraw all U.S. troops from foreign countries. The Declaration of Independence explains that the purpose of government is to secure unalienable rights of life, liberty, and the pursuit of happiness. The United States was not created to build an empire, to aggrandize government, or to purge the planet of nondemocratic regimes. Accordingly, the next president should announce that we are withdrawing all U.S. troops from foreign countries and that, hereinafter, all the nation's military resources will be devoted to building missile, electronic, and other defenses against potential foreign attacks. The United States lacks the wisdom necessary to spin modern democratic gold from centuries of despotic flax by military force or otherwise. Iraq and Afghanistan are clear proof. Further, the United States has no moral responsibility for the destiny of persons outside its jurisdiction who pay no taxes to support the government and pledge no allegiance to the republic.

Restore both oversight and transparency.No president is infallible. Executive-branch decisions or policies made without congressional vetting or oversight are prone to staggering mistakes—for example, the Bay of Pigs, the Vietnam War, or post-Saddam Iraq. Endogamous thinking is as foolhardy as endogamous marriages. And secrecy, moreover, breeds lawlessness, maladministration, and abuses. Sunshine is the best disinfectant. The next president must restore the tools of judicial and congressional oversight that have been eroded if not obliterated in the past eight years.

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.

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 and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. For more information, visit brucefeinlaw.com.

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