American Freedom Agenda

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The American Freedom Agenda’s (AFA) mission is twofold: the enactment of a cluster of statutes that would restore the Constitution’s checks and balances as enshrined by the Founding Fathers; and, making the subject a staple of political campaigns and of foremost concern to Members of Congress and to voters and educators. Especially since 9/11, the executive branch has chronically usurped legislative or judicial power, and repeatedly claims that the President is the law. The constitutional grievances against the White House are chilling, reminiscent of the kingly abuses that provoked the Declaration of Independence.

President Bush asserts the power to detain American citizens indefinitely as illegal combatants at Guantanamo Bay based on evidence extracted by torture, with a presumption of guilt, and before a biased military tribunal. He is intercepting or claims the right to intercept the conversations, emails, and letters of Americans and to break and enter their homes on his say-so alone. The President is shielding counter-terrorism programs from congressional scrutiny by bogus invocations of executive privilege. He is disregarding hundreds of provisions of bills he has signed into law by declaring them unconstitutional. He has authorized the prosecution of alleged war criminals with secret and coerced evidence. With the consent of Congress, he has suspended the Great Writ of habeas corpus for alleged war criminals or illegal enemy combatants. He has created secret prisons abroad to interrogate kidnapped suspected terrorists or delivered them to foreign intelligence organizations anticipating torture. He has denied that Congress may limit his power to initiate warfare. And he has threatened criminal prosecutions of the news media for exposing his usurpations. Now is no time for summer soldiers or sunshine patriots in defense of American freedom.

The 10-point AFA statutory agenda would repeal the Military Commissions Act’s authorization of military commissions for the trial of alleged war criminals based on coerced or secret evidence. The trials should proceed in civilian courts or by courts-martial which feature time-honored procedural safeguards to insure reliable verdicts.

The Act’s suspension of habeas corpus for alleged war criminals or unlawful enemy combatants would also be repealed. The Great Writ of habeas corpus requires the executive branch to justify detentions before an independent and impartial judge. Habeas corpus has been a hallmark of the rule of law since Magna Carta in 1215.

The Act’s open-ended definition of “unlawful enemy combatant” would be repealed. It reaches both citizens and non-citizens,and any person affiliated in marginal ways with international terrorist organizations. The substitute definition would confine unlawful enemy combatants to persons engaged in actual hostilities against the United States.

The National Security Agency’s warrantless domestic surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978 would be denied funding. Appropriations would also be prohibited for any executive spying programs that have not been fully disclosed to the House and Senate Intelligence Committees.

The state secrets privilege would be revoked. It denies victims of constitutional violations any remedy where proof of the government’s wrong doing would disclose national security information, for example, an agreement by the United States to assist kidnappings by a foreign intelligence service.

Presidential signing statements, which declare the President’s intent to disregard provisions of bills he has signed into law because he asserts they are unconstitutional, would be subject to challenge by the House and Senate collectively in the Supreme Court. The signing statements are tantamount to line-item vetoes which unconstitutionally encroach on legislative prerogatives.

Legislative-executive committees in the House and Senate would be empowered to decide claims of executive privilege invoked by the President to withhold information from Congress based on national security. Controlled by the legislative branch, the committee rulings would be final and binding.

A Sword of Damocles would be removed from the media by creating a journalist exception for the publication of national defense information leaked by the executive branch, Congress, or otherwise.

Renditions to foreign countries where torture or worse can be reasonably anticipated or secret prisons operated or employed by the United States abroad would be prohibited. Both practices have been prominent features of the "war on global terrorism," but are flagrantly inconsistent with the rule of law. They invite chilling injustices, for example, MaharArar, that fuel the recruitment efforts of Al Qaeda and thus make the United States less safe.

Finally, the President’s authority to list organizations or persons as implicated in global terrorism based on secret evidence, a marginal connection with terrorists, and no opportunity for genuine judicial review would be repealed. The criminal law, including conspiracy and aiding and abetting provisions, has proven sufficient to deter, to thwart, and to punish terrorism in all is moods and tenses consistent with due process safeguards indispensable to reliable verdicts.

The AFA eschews any sunset clauses. It is intended to celebrate an enlightened equilibrium among the three branches of government for the ages.

Click here to Read the "Freedom Pledge".

Biographies of the Principals