Senator Russ Feingold

Chairman, Senate Judiciary Subcommittee on the Constitution






On September 16, 2008, U.S. Senator Russ Feingold chaired a hearing in the Senate Judiciary Subcommittee on the Constitution entitled “Restoring the Rule of Law.”  As he explained in his opening statement:


“I called this hearing . . . to hear from legal and historical experts on how the next President should go about tackling the wreckage that this President will leave. I’ve asked our two panels of experts who will testify to be forward-looking – to not only review what has gone wrong in the past seven or eight years, but to address very specifically what needs to be set right starting next year and how to go about doing it. . . .


“I hope that many of these recommendations, along with the testimony we will hear today, will serve as a blueprint for the new President so that he can get started right away on this immense and extremely important job of restoring the rule of law.”


The subcommittee received detailed recommendations and proposals from over 40 experts, including historians, law professors and representatives of advocacy organizations.  The recommendations ranged from actions the executive branch could take on its own, such as executive orders, to suggestions for legislative action.  A list of the witnesses and those who submitted written testimony is attached to this report as Appendix A, and the complete record of the hearing, including links to all of  the testimony, can be viewed at:


On December 10th, 2008, Senator Feingold wrote then President-elect Barack Obama urging him to take concrete steps to restore the rule of law.  In the letter, Senator Feingold urged Obama “to take the opportunity in your first speech as President to make a strong and clear statement of your intention to restore the rule of law in our country.”  More concretely, Feingold’s letter included a series of recommendations for actions the administration should take based on the testimony during the September 10th hearing.  The recommendations were grouped into four categories: separation of powers; excessive government secrecy; detention and interrogation policy; and domestic surveillance and privacy.


One hundred days into the Obama administration, this report examines the actions the Obama administration has taken on the recommendations outlined in the December 10th letter.  In each section, the recommendations as they appeared in the letter are reprinted followed by the action, if any, that the Obama administration has taken, or indicated it will take, on the issue.  The actions taken by the administration are accompanied by letter grades. 

Report Card:

The Obama Administration’s Efforts to

Restore the Rule of Law During its First 100 Days


The following grades were assessed based on the Obama administration’s actions taken during its first 100 days in response to recommendations in four areas regarding the restoration of the rule of law:

·        SOP:  Separation of Powers

·        EGS:  Excessive Government Secrecy

·        DIP:  Detainee and Interrogation Policy

·        DSP:  Domestic Surveillance and Privacy




Renounce the Extreme Views of the Bush Administration in the Inaugural Address


SOP:  Give priority to rule of law issues


SOP:  Cooperate with Congressional Oversight


SOP:  Cooperation with Intelligence Committees


SOP:  Review Bush Administration OLC opinions


EGS:  State Secrets


EGS:  Over-classification




EGS:  Make OLC Opinions Public


EGS:  Presidential Records


DIP:  Ban torture


DIP:  Notification to Red Cross


DIP:  Close Guantanamo


DIP:  Military Commissions


DIP:  Extraordinary Rendition


DSP:  Declassification of Patriot Act Implementation Information


DSP:  Patriot Act Reauthorization


DSP:  Review of Domestic Intelligence


DSP:  FISA Amendments


DSP:  Attorney General Guidelines



A = Recommendation implemented/completed

B = Recommendation in progress of being implemented/completed

C = Recommendation not completed but positive indications

D = Recommendation not completed but negative indications

I = Too little information/action to be able to assess
Recommendation to Unequivocally Renounce the Extreme Views of the Bush Administration in the Inaugural Address


Ø     Recommendation (Inaugural Address):  “[I]t is…important that you clearly and unequivocally renounce, early in your tenure, President Bush’s extreme claims of executive authority. Indeed, stating this position in your inaugural address would affirm to the nation, and the world, that respect for the rule of law has returned to the Oval Office. I urge you to take the opportunity in your first speech as President to make a strong and clear statement of your intention to restore the rule of law in our country.”


Grade: (A)    Status: Complete 

On January 21, 2009, during his inaugural address, President Obama said:


As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers -- (applause) -- our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man -- a charter expanded by the blood of generations.  Those ideals still light the world, and we will not give them up for expedience sake. 


President Obama clearly acknowledged the importance of the rule of law to the country, a very important step.

Recommendations on Separation of Powers


Ø     Recommendation (Give priority to rule of law issues): “The new administration should make the restoration and advancement of the rule of law an overarching theme. This should include an explicit rejection of the extreme theory of Article II executive power that the Bush administration has used to justify torture and illegal warrantless wiretapping; a pledge to work with Congress to give priority to measures to restore public confidence in the rule of law; and an announcement of a zero tolerance policy for official misconduct.”


Grade: (B)   Status: In progress 

President Obama and administration officials have often cited the administration’s efforts to restore the rule of law.  During his confirmation hearing, Attorney General Eric Holder clearly stated that “no one is above the law,” he stated without equivocation that waterboarding is torture, and he acknowledged Justice Jackson’s Youngstown analysis as controlling the limits of executive action when Congress has legislated on the question.   


Ø     Recommendation (Cooperate with Congressional Oversight): “The new administration should recognize and cooperate with the legitimate oversight function of Congress. In certain key areas like interrogation policy and surveillance, Congress was kept in the dark for years and there remain significant impediments to congressional inquiries.  I urge your administration to provide requested information on these issues to Congress as soon as possible and to cooperate with future oversight efforts.”



The recent release of the torture memos was an important step, though it was taken in response to litigation rather than the pending congressional subpoena.  It is too soon to tell whether this Administration will treat congressional oversight with respect or disdain.


Ø     Recommendation (Cooperation with Intelligence Committees):  “The new administration should view the congressional intelligence committees as a partner rather than a nuisance. It must commit to full compliance with the National Security Act, ending the abuses of the limited “Gang of Eight” notifications and ensuring that the full committees are kept fully and currently informed of all intelligence activities.”


          Grade: (C)   Status: Incomplete, but positive 

The administration has pledged to cooperate with the review of the Senate Select Committee on Intelligence of the CIA’s detention and interrogation program.   It is too soon to tell whether full cooperation with the review will be forthcoming, or whether, in other contexts, the administration will remove current impediments to full oversight of the Intelligence Community.


Ø     Recommendation (Review Bush Administration OLC opinions):  “The new administration should conduct a comprehensive review of opinions issued by the Department of Justice Office of Legal Counsel (OLC) under the Bush administration, and repudiate or revise those that overstate executive authority.”

Grade: (B)   Status: In progress and encouraging 

Attorney General Holder indicated in his confirmation hearing that he would order a review.  The release and repudiation of the torture memos, and of nine other memos withdrawn in the waning days of the Bush administration, indicates that the review is ongoing and may yield tangible results.

Recommendations on Excessive Government Secrecy


Ø     Recommendation (State Secrets):  “The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked.”


          Grade: (D)   Status: Troubling

The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA. 


In Al Haramin, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps.  In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured.  In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance.  After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.


Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege.  The Obama administration has yet to take a position on the legislation.


Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public.  Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.


Ø     Recommendation (Over-classification):  “The new administration should rewrite President Bush’s executive order regarding classification policies and procedures (Executive Order 13292) to reinstate provisions from the previous classification order (Executive Order 12958, signed by President Clinton) that established a presumption against classification; allowed senior agency officials to declassify information in certain exceptional cases; and prohibited re-classification of properly declassified information. The new administration also should seriously consider ordering each entity with classification authority to do a thorough review of its classification policies and practices to reduce over-classification.”


          Status:  Incomplete 

There has been no action on this recommendation yet.


Ø     Recommendation (FOIA):  “The new administration should reverse the October 2001 Ashcroft Memorandum, which stated that the Justice Department will defend an agency’s decision to withhold a document requested under the Freedom of Information Act if the document even arguably falls within one of FOIA’s exemptions. Instead, the new administration should reinstate the presumption of disclosure established under a 1993 memorandum issued by Attorney General Reno, which stated that DOJ will defend an agency’s decision to withhold a document only if the agency reasonably foresees that disclosure would be harmful to an interest protected by one of FOIA’s exemptions.”


          Grade: (A)   Status: Complete 

The President implemented this recommendation in a Presidential Memorandum issued on January 21, 2009, the day after his inauguration.  The memo states:


The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.


All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.  The presumption of disclosure should be applied to all decisions involving FOIA.


Ø     Recommendation (Make OLC Opinions Public): 

“Past and future memoranda and opinions issued by the Department of Justice Office of Legal Counsel should be made available to the public to the maximum extent possible. In addition, public release early in your administration of some of the more controversial OLC opinions governing interrogation policy and warrantless wiretapping (redacted, if necessary, to protect sources and methods) would help assure Congress and the American people that the new administration is committed to transparency and the rule of law.”


          Grade: (B)   Status: In progress, but promising

The release of the torture memos and other withdrawn memos from the Bush era is an excellent step in the right direction.  There remain other memos related to the CIA detention and interrogation program that should be declassified and withdrawn.  In addition, the administration has not yet declassified and withdrawn OLC memoranda supporting the warrantless wiretapping program.  The Obama administration has yet to indicate whether it will support legislation such as the OLC Reporting Act, which would set standards for the release of certain OLC memos.  Because the nomination of Dawn Johnsen to head the Office of Legal Counsel has been held up in the Senate, it is too early to tell whether promises of a new openness will be fulfilled.

Ø     Recommendation (Presidential Records):  “The new administration should revoke Executive Order 13233, issued in November 2001. This executive order limited public access to presidential records by allowing former presidents and their heirs to block access to presidential records, and by creating a new vice presidential privilege. Revoking it would simply give effect once again to the longstanding regulations of the National Archive and Records Administration governing the release of presidential records.”


          Grade: (A)   Status: Complete 

On January 21st, 2009, with his first executive order as President of the United States, President Obama revoked Executive Order 13233.

Recommendations on Detention and Interrogation Policy


Ø     Recommendation (Torture):  “The new administration should express its unqualified commitment to enforcing the ban against torture and cruel, inhuman and degrading treatment, and should establish as a matter of policy a single, government-wide standard of humane detainee treatment. I have supported efforts in Congress to make the Army Field Manual on Human Intelligence Collector Operations that standard. The new administration should revoke all existing orders and legal opinions authorizing cruel interrogations, including Executive Order 13440 and any relevant opinions of the OLC.”


          Grade: (A)   Status: Complete  

On January 22nd, 2009, President Obama issued an executive order revoking Executive Order 13440 and any relevant opinions of the OLC.  The new executive order stated:


“Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.”


Ø     Recommendation (Notification to Red Cross):  “The new administration should commit to providing timely notification of and access to the International Committee of the Red Cross for any and all detainees held in U.S. custody anywhere in the world.”


          Grade: (A)   Status: Complete

On January 22nd, 2009 President Obama issued an executive order stating:


“All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.”


Ø     Recommendation (Close Guantanamo):  “The new administration should close the facility at Guantanamo Bay, as you have pledged to do. Closing Guantanamo raises a number of complex questions, many of which were addressed in the hearing submissions. I hope those submissions can serve as a resource to your administration in addressing these difficult issues. As you tackle the Guantanamo problem, however, I urge you not to establish an entirely new preventive detention regime based on concerns about a very small number of difficult cases.”


          Grade: (B)   Status: In progress   

On January 22nd, 2009, an executive order issued by President Obama took effect.  The order stated:


The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.


Ø     Recommendation (Military Commissions): “The new administration should reject the flawed military commission trial system being used at Guantanamo Bay.”


          Grade: (C)   Status: Incomplete, but promising 

On January 22nd, 2009, President Obama issued an executive order stating:


The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. 


A separate executive order issued the same day set up a Special Task Force on Detainee Disposition to consider policy options for how to handle detainees in the future, including Guantanamo detainees that a case by case review determines cannot be transferred or released. 


Ø     Recommendation (Extraordinary Rendition):  “The new administration should develop effective means of enforcing the ban against rendering individuals to countries where they have a credible fear of being tortured.”


          Grade: (B)   Status: Mostly positive 

On January 22nd, 2009, President Obama issued an executive order to ensure practices, “…do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.” 


On April 9th, 2009, CIA Director Leon Panetta announced, consistent with the executive order, that the “CIA retains the authority to detain individuals on a short-term transitory basis. None have occurred since I have become Director.  We anticipate that we would quickly turn over any person in our custody to U.S. military authorities or to their country of jurisdiction, depending on the situation.”  Director Panetta further stated that “CIA officers do not tolerate, and will continue to promptly report, any inappropriate behavior or allegations of abuse. That holds true whether a suspect is in the custody of an American partner or a foreign liaison service.”

Recommendations on Domestic Surveillance and Privacy


Ø     Recommendation (Declassification of Patriot Act implementation information):  “As an early demonstration of the new administration’s commitment to transparency and cooperation with Congress, I urge you to declassify basic information about the implementation of controversial provisions of the USA Patriot Act to allow more open consideration and debate when that legislation is reauthorized in 2009. I can discuss with your transition team in a classified setting some of the information that I believe can be declassified without compromising national security.”


          Status:  Incomplete

On February 25, 2009, Assistant Attorney General for the National Security Division David Kris was asked at his confirmation hearing whether he agrees that information discussed in a classified setting “is important to the public debate” on the reauthorization of the USA Patriot Act and whether he would consider declassification.  Kris responded “Yes, I will certainly take a look at that if I am fortunate enough to be confirmed, yes.”


Ø     Recommendation (Patriot Act reauthorization):  “The new administration should support significant legislative changes to domestic surveillance authorities as part of the 2009 Patriot Act reauthorization process, including reforms to the National Security Letter statutes and others. It should commit to working collaboratively with Congress on this legislation, rather than in the counter-productive adversarial posture that the Bush administration has so frequently adopted.”


          Status:  Incomplete  

Significant discussions about the 2009 Patriot Act reauthorization have not yet taken place.

Ø     Recommendation (Review of domestic intelligence):  “I believe that Congress should undertake a comprehensive review of domestic intelligence activities and authorities to assess the most effective ways to prevent a terrorist attack and collect other critical intelligence while also protecting the rights of Americans – and it will be critical to have the cooperation of the new administration if such a review goes forward. This review should include an assessment of the threat inside the U.S., an evaluation of all current laws and their implementation, and a review of the respective roles of relevant agencies and departments.”


          Status:  Incomplete

Ø     Recommendation (FISA amendments):  “The new administration should support significant legislative changes to the FISA Amendments Act to ensure that it is effective in combating terrorism and collecting foreign intelligence while also protecting the privacy of innocent Americans. At the same time, the new administration should incorporate more privacy protections – such as stronger minimization procedures to limit the use of information gathered about Americans – into its implementation of the legislation. I can make more specific suggestions in a classified setting for important changes in implementation that can be made by the executive branch without congressional action.”


          Status:  Incomplete 

On February 25, 2009, David Kris, Assistant Attorney General for the National Security Division testified at his confirmation hearing at the Senate Judiciary Committee that, based on classified information provided to him, he had an “increased desire to, if I were to be confirmed, to get to the bottom of the FISA amendments act.”  Problems with the implementation of the statute identified by Senator Feingold have not been resolved.  Discussions about legislative fixes to the act have not occurred.


Ø     Recommendation (Attorney General Guidelines):  “The new President and Attorney General should reconsider the new Attorney General Guidelines governing FBI investigations that went into effect on December 1, 2008, to make sure the FBI is devoting its limited resources to the greatest threats and not wasting its time investigating people who have done nothing wrong. In particular, investigations based on ethnic or racial profiling or the First Amendment-protected activities of the targets should not be countenanced.”


          Status:  Incomplete. 

At his confirmation hearing, Attorney General Holder made a commitment to Sen. Feingold to take a close look at the Guidelines early in his tenure and consider whether changes should be made.  No public action on this commitment has yet been announced.



While there is clearly more work to be done, in a number of important areas, the new administration has taken significant steps toward restoring the rule of law.  Based on the recommendations generated by the September 16th Rule of Law hearing, the Obama administration’s actions on detention and interrogation policy have yielded the most positive results.  The administration has not yet established a clear record on domestic surveillance and privacy, and may not until Congress takes action on measures such as the USA PATRIOT Act and the FISA Amendments Act.


The administration’s actions on excessive government secrecy have yielded mixed results.  The administration has made, or has indicated it will make, more information available to the public including presidential records, information requested through FOIA, and OLC memos, as evidenced by the disclosure of memos regarding the CIA’s enhanced interrogation program.  But the administration’s record on the state secrets privilege is troubling.  


The Obama administration has made a clear break with the recklessness of the Bush administration, and the swift actions that President Obama took in his first days in office were a triumph for the rule of law.  But as evidenced by the report, the job of fixing the damage done to our Constitution during the previous administration is still not finished and must continue to be a priority. 


Appendix A


Witnesses who testified at the September 16th hearing:


-         Walter Dellinger; Partner, O'Melveny & Myers, LLP; Visiting Professor of Law, Harvard Law School; Former Assistant Attorney General, Office of Legal Counsel (1993-1996); Former Acting Solicitor General, (1996-1997)

-         Mickey Edwards; Board of Directors, The Constitution Project; Lecturer, Woodrow Wilson School of Public Policy, Princeton University; Former Member of Congress (R-OK), 1977-1993

-         Harold Koh; Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law Yale Law School

-         Elisa Massimino; Chief Executive Officer and Executive Director; Human Rights First

-         John D. Podesta; President and CEO, Center for American Progress Action Fund; Chief of Staff to President William J. Clinton, 1998-2001

-         Frederick A.O. Schwarz Jr.; Senior Counsel; Brennan Center for Justice at New York University School of Law

-         Suzanne E. Spaulding; Principal; Bingham Consulting Group

-         Charles J. Cooper; Partner, Cooper & Kirk, PLLC

-         Patrick F. Philbin; Partner, Kirkland & Ellis LLP

-         Kyndra Rotunda; Visiting Assistant Professor of Law; Chapman University School of Law

-         Robert Turner; Professor, General Faculty; Associate Director, Center for National Security Law; University of Virginia School of Law


Additional written testimony:

-         American Civil Liberties Union (ACLU)

-         American Library Association and the Association of Research Libraries

-         Bill of Rights Defense Committee, Nancy Talanian, Executive Director

-         Center for Democracy & Technology, Gregory T. Nojeim, Director, Project on Freedom, Security & Technology

-         Center for National Security Studies, Kate Martin, Director, and Lisa Graves, Deputy Director

-         Center for Strategic and International Studies (CSIS), Dr. Sarah E. Mendelson, Director

-         The Center for Victims of Torture, Douglas A. Johnson, Executive Director

-         Citizens for Responsibility and Ethics in Washington

-         Common Cause, Sarah Dufendach, Vice President for Legislative Affairs  

-         Constitution Project

-         National Religious Campaign Against Torture, Linda Gustitus, President, and Rev. Richard Killmer, Executive Director

-         National Security Archive, Meredith Fuchs, General Counsel

-         Open the Government, Patrice McDermott

-         The Rutherford Institute, John W. Whitehead

-         Joint Statement of 20 legal scholars

-         Steven Aftergood, Federation of American Scientists

-         Mark Agrast, Senior Fellow, Center for American Progress Action Fund

-         Leonard M. Cutler, Professor of Public Law, Siena College

-         Daniel Farber (Sho Sato Professor of Law, University of California, Berkeley) and Anne Joseph O’Connell (Assistant Professor of Law, University of California, Berkeley)

-         Bruce Fein, The Lichfield Group, Inc.

-         Lou Fisher, Specialist in Constitutional Law, Law Library of the Library of Congress

-         Amanda Frost (Associate Professor Law, American University Washington College of Law) and Justin Florence (Associate, O’Melveny & Myers, LLP)

-         The Honorable Elizabeth Holtzman, Former Congresswoman from New York, 1973 – 1981

-         Heidi Kitrosser, Associate Professor, University of Minnesota Law School

-         Seth F. Kreimer, Kenneth W. Gemmill Professor of Law, University of Pennsylvania Law School

-         Alan B. Morrison, Visiting Professor, Washington College of Law at American University  

-         Ralph Nader

-         Deborah N. Pearlstein, Visiting Scholar, Woodrow Wilson School of Public and International Affairs, Princeton University

-         Peter M. Shane, Jacob. E Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law

-         Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago