Published November 17, 2008
Since the election, the newspapers and Internet have been flooded with unsolicited advice for President-elect Barack Obama. I'll go ahead and add mine.
I don't agree with Obama on much (I don't agree with the current administration on much, either), so I won't make an appeal with him to compromise with the Republicans on the issues where I agree with them. Instead, here are a few recommendations — some substantive, some symbolic — of moves Obama could make that are consistent with the principles he articulated during the campaign:
Increase government transparency. The Bush administration has been the most secretive in history. Bush and his appointees have sought to undermine open records, open meetings, and Freedom of Information regulations at every turn. They've classified huge swaths of government documents, usually with no justification, including classifying such odd items as Associated Press articles and old press releases from federal agencies. Obama should not only stop this mass secrecy, he should reverse it. He should set up a committee of experts, preferably including representatives from groups like the ACLU, media advocacy organizations, and the Electronic Frontier Foundation, to go back and review his predecessors' dangerous efforts to govern in the dark.
Open up the White House. This would largely be a symbolic move, but I think it's an important one. For years now, the public roads around the White House have been closed off. The process began after a deranged man attempt to scale a White House fence during the Clinton administration, with a second round of closings coming after September 11. Obama will get a fight from the Secret Service, but he should work to reopen the roads around the White House, and generally increase public access to it. The White House is owned by taxpayers, and the officials who work in it work for them. Setting the White House off like a fortress reinforces the unhealthy insularity and isolation too prevalent in the current administration.
Swear off executive privilege. The concept of "executive privilege" states that presidential aides should be immune to subpoenas to testify in court or before congressional oversight committees. The justification for executive privilege is that presidential aides won't be as open and candid with advice if there's a chance they could be summoned at a later date. That's a weak justification. The president's aides work for the public, and get a federal paycheck. If they don't want to be asked about their advice later, they should refrain from giving the president ethically or legally dubious advice.
Revamp the Transportation Security Administration. And by "revamp," I mean "start over." Most security experts agree that the rigmarole we go through at the airport is mere security theater, designed not to make us safer, but to make us feel safer by making it increasingly inconvenient to fly. TSA's approach to security is too reactionary — too set on preventing attacks and attempted attacks that have already happened. And please, whatever you do, resist the temptation to let TSA workers unionize. Security from terror attacks should not be a federal jobs program. You need the authority to fire underperforming screeners quickly and effortlessly. Three game-changing possibilities to head up TSA: security guru Bruce Schneier, Cato Institute security and technology scholar Jim Harper, or Ohio State University's John Mueller.
Investigate the Bush administration. Your running mate, Joe Biden, said during the campaign that an Obama administration would thoroughly investigate the Bush administration for evidence of criminal and ethical wrongdoing. There will be pressure not to. You'll hear arguments from Washington's standard-bearers that to do so would be mean-spirited, backward-looking, or partisan. You'll hear the claim that aggressively investigating your predecessor will set a bad precedent, whereby future administrations will investigate their predecessors every time the White House changes parties. Ignore them. Because the Bush administration has been so secretive, we aren't even yet sure of the damage done, particularly by Vice President Cheney and his lackeys, the Office of Legal Counsel. If you're serious about undoing the harm done to the Constitution by this administration, you'll need to know the extent of the damage. That includes not only members of Bush and Cheney's immediate staff and top-level advisers, but looking into politically motivated and possibly malicious prosecutions by the current administration's U.S. attorneys.
Make fighting public corruption a top priority of your justice department. The Bush administration's Justice Department spent limited taxpayer resources on ridiculous cases like prosecuting distributors of pornography (I refer here to the consenting-adults sort of pornography), people who sell marijuana pipes over the Internet, and doctors who may or may not have overprescribed prescription painkillers (as determined by Justice Department officials, not other doctors). When they did pursue public officials, those prosecutions tended to be motivated by partisan grudge-settling. Your Justice Department should put public officials at all levels of government — of all political persuasions — on notice that abuses of power and position won't be tolerated. When a politician abuses the public trust and gets away with, or gets a slap on the wrist, it lends credibility to the notion that we have a two-tiered criminal justice system — one for the powerful and well-connected, and another for everyone else.
Use the pardon. On the campaign trail, you've expressed some concern about the soaring incarceration rate. Surely your time as a community organizer and in the classroom as a constitutional law professor have also shown you that the criminal justice system is far from flawless. The Founders knew that a criminal justice system made up of flawed men would inevitably produce flawed results, and so created the presidential pardon power as a last check on possible injustices that may have fallen through the courts. Unfortunately, the pardon power has in recent times been used mostly for political patronage, or as a show of redemption to admitted, guilty people who have since rehabilitated themselves. The staff you assign to review pardons should proactively look for cases of possible injustice — of wrongful prosecutions, or in cases where application of the law still somehow produced an unjust outcome.
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