A number of organizations have created documents to offer the Obama-Biden transition team guidance on priorities in the new administration. The issues are broad, including detainee rights, reproductive health, education, security, and privacy, among others. This is Part One of an unknown number of posts on such transition plans. I will post documents of interest as I find them. This post includes plans from the ACLU, EFF, and American Constitution Society.
I have been working on this at the ACLU, which has published a transition plan, “Actions for Restoring America.” The privacy issues include:
1. Warrantless spying.
Issue an executive order recognizing the president’s obligation to comply with FISA and other statutes, requiring the executive branch to do so, and prohibiting the NSA from collecting the communications, domestic or international, of U.S. citizens and residents. Issue an executive order prohibiting new FISA powers from being used to conduct suspicionless bulk collection. Re-examine the recent amendments to Executive Order 12333 to limit and regulate all intelligence community activities and to fully protect the privacy and civil liberties of U.S. citizens and residents. Repeal and make public any secret executive orders that limit or qualify that order. Order the attorney general to launch an investigation to determine if any laws were broken or to appoint a special counsel to do the same.
2. Watch lists.
Issue an executive order requiring watch lists to be completely reviewed within 3 months, with names limited to only those for whom there is credible evidence of terrorist ties or activities. Repeal Executive Order 13224, which creates mechanisms for designating individuals and groups as terrorist suspects and preventing US persons and companies from doing business with them – a power of such breadth that, the record shows, it inevitably leads to the designation of many innocent people and does more harm than good.
3. Freedom of Information – Ashcroft Doctrine.
Direct the attorney general to rescind the “Ashcroft Doctrine” regarding Freedom of Information Act compliance, which instructs agencies to withhold information whenever there is a “sound legal basis” for doing so, and return to the compliance standard under Attorney General Janet Reno, which promoted an “overall presumption of disclosure” of government information through the FOIA unless it was “reasonably foreseeable that disclosure would be harmful.”
4. Monitoring of activists.
Direct the attorney general and other relevant agency heads (eg, Defense and Homeland Security) to end government monitoring of political activists. Direct the attorney general to repeal the new Attorney General Guidelines regarding FBI investigations, and replace them with new guidelines that protect the rights and privacy of innocent persons. An executive order should also direct the relevant agencies to refrain from monitoring political activists unless there is reasonable suspicion that they have committed a criminal act or are taking preparatory actions to do so. […]
6. Real ID Act.
Direct the Secretary of Homeland Security to suspend the regulations (73 Fed. Reg. 5272) for the Real ID Act pending congressional review.
The Electronic Frontier Foundation has detailed “A Privacy Agenda For The New Administration,” which the organization says is the first of “a three part series directed at restoring some of the civil liberties we’ve lost over the past eight years.” Among other things, EFF urges the new administration to:
2. Reform the Electronic Communications Privacy Act (ECPA). ECPA is a major law restricting the government’s ability to surveil citizens and is in desperate need of reform. It has become dangerously out-of-sync with recent technological developments and Americans’ expectation of online privacy. In particular, the privacy of personal data should not depend on how long an ISP has stored that data or whether the data is stored locally or remotely.
3. Reform the State Secrets Privilege. The State Secrets Privilege has been radically abused by the Bush Administration, particularly to shield its electronic surveillance activity from judicial review. The new administration should voluntarily reduce its use of the privilege, and work with Congress to reform the privilege and insure that claims of state secrecy are subject to independent judicial scrutiny.
The American Constitution Society has released documents and held panel discussions on, “A Fresh Start for a New Administration: Reforming Law and Justice Policies.” Topics included:
- P.J. Crowley, Homeland Security and the Upcoming Transition: What the Next Administration Should Do to Make Us Safe at Home
- Amanda Frost and Justin FlorenceReforming the State Secrets Privilege
- Peter P. Swire and Cassandra Q. Butts, The ID Divide: Addressing the Challenges of Identification and Authentication in American Society
- Deborah N. Pearlstein, National Intelligence and the Rule of Law
- Geoffrey R. Stone, On Secrecy and Transparency: Thoughts for Congress and a New Administration
- Catherine Powell, Human Rights at Home: A Domestic Policy Blueprint for the New Administration