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Policy Solution

A Presidential Agenda for Liberty and National Security

Summary: Civil liberties and constitutional limits on executive power are under assault. The next president should reverse course, implementing policies that secure the freedoms on which a robust democracy depends.

Published: October 22, 2020

Foreword

Amer­ican demo­cracy urgently needs renewal. In the coming years, one of the great issues facing the coun­try will be the pres­id­ency itself. A half century ago, in the wake of Water­gate and Viet­nam, laws and rules aimed to check the “Imper­ial Pres­id­ency.” Over the decades those limits eroded and then were finally cast off. The past three years have seen a refusal to honor over­sight and a politi­ciz­a­tion of the exec­ut­ive branch. The pres­id­ent insists the Consti­tu­tion gives him “the right to do whatever I want.” The abuse of power in Lafay­ette Park this summer was just the most visible, and most viol­ent, example of shattered norms. And from the admin­is­tra­tion’s onset, abus­ive and often uncon­sti­tu­tional power has been wiel­ded against reli­gious minor­it­ies and immig­rants in a way that has no preced­ent in the past half century.

In this time of reck­on­ing, a great task must be to reset the system of checks and balances and once again restore the pres­id­ency to its right­ful place. There must be, as well, an imme­di­ate reset of many policies that are driven by racial or reli­gious animus rather than the national interest.

This volume includes recom­mend­a­tions for exec­ut­ive actions and legis­la­tion from the Bren­nan Center for Justice at NYU School of Law. They focus on ending reli­gious and racial profil­ing and immig­ra­tion bans driven by the same motives, a new law enforce­ment focus on the real threat of white suprem­acist viol­ence, and renewed protec­tion for civil liber­ties and trans­par­ency. It reflects, as well, urgently needed steps to curb abuse of exec­ut­ive powers. A previ­ous Bren­nan Center volume proposed exec­ut­ive actions to enhance ethics and fight corrup­tion. A forth­com­ing report will outline legis­la­tion and exec­ut­ive actions to end mass incar­cer­a­tion and advance racial justice.

In all of this, Congress must do its part to play its consti­tu­tional role. Courts, too, must step up.

But the pres­id­ent can lead, display­ing what Alex­an­der Hamilton called “energy in the exec­ut­ive,” this time not to grossly expand pres­id­en­tial power but to restore the office to its right­ful role.

We the people have a duty as well: to insist that our lead­ers commit to the Consti­tu­tion and make renewal of our demo­cracy not just one issue among many but also a cent­ral task for our nation.

Michael Wald­man
Pres­id­ent
Bren­nan Center for Justice

Introduction

Our freedoms — free­dom to speak, travel, and worship; free­dom from intrus­ive govern­ment surveil­lance; and free­dom from invi­di­ous discrim­in­a­tion — are the guard­i­ans of our demo­cracy. These freedoms are under threat as rarely before in our history. Specious invoc­a­tions of national secur­ity, the fail­ure of Congress to fulfill its role as a coequal branch of govern­ment, and a resur­gence of overt racism both inside and outside of govern­ment are enabling an alarm­ing assault on civil liber­ties and consti­tu­tional limits on exec­ut­ive power. As always, it is minor­ity communit­ies — African Amer­ic­ans, Muslim Amer­ic­ans, immig­rants, and others — who are bear­ing the brunt.

This assault has many fronts. Blanket immig­ra­tion bans have targeted entire coun­tries based on reli­gion and race. A national emer­gency declar­a­tion, whose sole purpose is the construc­tion of a wall along the south­ern border that Congress refused to fund, has been in effect for over a year. Milit­ary forces and heav­ily armed federal agents have assembled in the streets of our cities to intim­id­ate those who peace­fully protest racial injustice, all while the Depart­ment of Justice is system­at­ic­ally depri­or­it­iz­ing the invest­ig­a­tion and prosec­u­tion of white suprem­acist viol­ence. Each of these actions targets people of color, paint­ing them as less Amer­ican than the waning white major­ity.

These unpre­ced­en­ted meas­ures add to — and build on — several long­stand­ing govern­ment prac­tices that under­mine civil liber­ties and burden margin­al­ized communit­ies. Changes in the law and tech­no­logy have given the govern­ment broad, warrant­less access to Amer­ic­ans’ commu­nic­a­tions and other sens­it­ive inform­a­tion. Gaps in racial profil­ing rules allow border agents, local law enforce­ment, and other govern­ment actors to target people based on their race, nation­al­ity, and reli­gion. Excess­ive govern­ment secrecy prevents effect­ive congres­sional over­sight and stymies account­ab­il­ity. Weak legal protec­tions for whis­tleblowers trans­late to pink slips and crim­inal refer­rals for govern­ment employ­ees who expose abuses within the exec­ut­ive branch.

To fulfill this nation’s prom­ise of equal­ity and free­dom for all, we must change course. Our coun­try is more secure, not less, when our govern­ment welcomes people of all faiths and races; decides whom to invest­ig­ate and prosec­ute based on evid­ence of crim­inal conduct rather than on a person’s race or beliefs; and oper­ates with trans­par­ency, over­sight, and account­ab­il­ity. To that end, the pres­id­ent should under­take the follow­ing policy changes:

End immig­ra­tion bans.

The pres­id­ent should

  • imme­di­ately repeal exist­ing blanket immig­ra­tion bans, includ­ing those against trav­el­ers from several major­ity-Muslim and African coun­tries;
  • support legis­la­tion that would estab­lish criteria for future decisions to deny entry; and
  • put an end to “extreme vetting,” which facil­it­ates discrim­in­a­tion in the issu­ance of visas and serves as a back­door ban.

End racial and reli­gious profil­ing.

The pres­id­ent should

  • direct agen­cies to close the loop­holes in their racial profil­ing guid­ance that enable profil­ing based on race, reli­gion, nation­al­ity, and other protec­ted char­ac­ter­ist­ics in far too many cases; and
  • support the long over­due passage of the End Racial and Reli­gious Profil­ing Act, which would codify a prohib­i­tion on racial and reli­gious profil­ing.

Mount an effect­ive and targeted response to white suprem­acist viol­ence.

The pres­id­ent should

  • commit his admin­is­tra­tion to collect­ing and disclos­ing the data neces­sary to determ­ine whether the Depart­ment of Justice is adequately respond­ing to white suprem­acist and far-right viol­ence;
  • direct the attor­ney general to issue a compre­hens­ive strategy to address this grow­ing threat; and
  • reject approaches — such as new domestic coun­terter­ror­ism laws and Targeted Viol­ence and Terror­ism Preven­tion programs — that hold little prom­ise but carry signi­fic­ant risk for the margin­al­ized communit­ies they inev­it­ably target.

Build guard­rails for emer­gency powers.

The pres­id­ent should

  • issue a pres­id­en­tial memor­andum estab­lish­ing criteria for declar­ing a national emer­gency and support legis­la­tion amend­ing the National Emer­gen­cies Act to bolster Congress’s role as a check against abuse;
  • disclose pres­id­en­tial emer­gency action docu­ments to relev­ant congres­sional commit­tees; and
  • issue an exec­ut­ive order placing a heavy thumb on the scales against using milit­ary forces for domestic law enforce­ment, even in those situ­ations where the Posse Comit­atus Act does not apply.

End warrant­less spying on Amer­ic­ans.

The pres­id­ent should

  • direct agen­cies to over­haul their proced­ures under the Foreign Intel­li­gence Surveil­lance Act (FISA) to better safe­guard Amer­ic­ans’ privacy, and support FISA reform legis­la­tion;
  • direct agen­cies to develop policies requir­ing warrants to obtain certain highly sens­it­ive inform­a­tion, in accord­ance with Carpenter v. United States; and
  • ensure that the federal govern­ment only supports the devel­op­ment of digital contract-tracing tools if they are effect­ive and accom­pan­ied by strong privacy safe­guards.

Recom­mit to national secur­ity trans­par­ency.

The pres­id­ent should

  • issue an exec­ut­ive order targeted at redu­cing over­clas­si­fic­a­tion and stream­lin­ing declas­si­fic­a­tion;
  • issue a pres­id­en­tial memor­andum limit­ing secret law; and
  • strengthen protec­tions for intel­li­gence community whis­tleblowers by revis­ing Pres­id­en­tial Policy Direct­ive 19, direct­ing the attor­ney general to revise regu­la­tions, and support­ing reform legis­la­tion.

These changes alone will not ensure the health of our demo­cracy. But they will go a long way toward secur­ing the freedoms for all Amer­ic­ans, regard­less of race or creed, that make a robust demo­cracy possible.