EXECUTIVE WATCH

Welcome to a new feature on Executive Watch, starting next week we will be providing a summary of major exercises of executive authority for that week, as well news relating to executive power.  Today, in order to make up lost ground, we present a summary of the major exercises of executive authority and executive power news for the first five weeks of the Obama Administration.

Week 1: 1/20/2009 – 1/27/2009

President Obama’s first week in office was accompanied by a flurry of new executive orders and memos, many of which are directed at reversing or reviewing previous Bush administration positions.

• Only a few hours after his inauguration on January 20, President Obama ordered his chief of staff, Rahm Emanuel, to issue a memorandum requesting all federal agencies and departments freeze all new or proposed regulations. The memo also requests the withdrawal of all final or proposed regulations not yet published by the Federal Register.
• On January 21, his first day in office, President Obama issued two executive memoranda in keeping with his promise to increase government transparency in his administration.
  • • The first memoranda focused on three key points: Government should be transparent, Government should be participatory, and Government should be collaborative. The memo directs the creation of an Open Government Directive to be issued by OMB which will instruct federal agencies in how to implement these principles. The memorandum states that the “independent agencies shall comply with the Open Government Directive.”
    • The second memoranda, issued to all heads of executive departments and agencies, outlined the Obama’s administration’s position on the Freedom of Information Act. The memorandum requires that the agencies adopt a “presumption in favor of disclosure” and take “affirmative steps” to make information publicly available.
    • In a similar vein, President Obama also issued an executive order on the topic of Presidential Records, which outlines the procedures that are to be followed when an incumbent or former President wishes to invoke executive privilege with respect to documents that the U.S. Archivist intends to disclose. The order provides that a former president may raise a claim of executive privilege, but that the determination whether to invoke the privilege belongs to the incumbent President.
• On the same day, President Obama issued an executive order providing special ethics rules for members of the administration. The order bans officials from accepting gifts from lobbyists, limits officials from working on former client or former employer matters for two years from the date of their appointments, and limits former registered lobbyists from employment with any agency they lobbied lobbying for two years. It also places limitations on certain appointees leaving government from communicating with employees of their former executive agency for 2 years and from lobbying certain executive branch officials or non-career Senior Executive service appointees for the remainder of the administration.
• Finally, President Obama issued a memorandum freezing salaries for all senior officials on the White House staff.
• On Thursday, January 22, President Obama issued three executive orders reversing Bush administration policies on the treatment of detainees in the War on Terror.
  • • The first order, Executive Order 13491 revoked Executive Order 13440, which had interpreted the “Geneva Conventions” to allow harsh interrogation techniques with regards to enemy combatants. The new order requires that any detainee in U.S. control be interrogated only according to the tactics and approaches outlined in the Army Field Manual. (In his confirmation hearings to be CIA Director, Leon Panetta raised the possibility that the CIA would seek authorization to use harsher techniques if necessary. See Week 3). The order also requires that the CIA close any detention facilities it operates, and creates a special task force to review interrogation and transfer policies.
    • President Obama also issued Executive Order 13492 requiring the prompt disposition of the cases of detainees at Guantanamo Bay and requiring that the prison be closed within one year.
    • Finally, the President issued Executive Order 13493 creating the Task Force on Detainee Disposition. The task force will develop policies for the lawful detention, trial, transfer, or eventual release of detainees from the war on terror (specifically those held at Guantanamo Bay). The task force is expected to submit a report to the president with its findings within 180 days.
    • On the same day, President Obama also issued a separate memorandum requesting a review of the case of Ali Saleh Kahlah al-Marri. Al-Marri is the only enemy combatant currently held on U.S. soil. The memorandum requires that a full review of al-Marri’s status begin immediately.
• On the same day, the Senate Select Committee on Intelligence held a nomination hearing for Admiral Dennis C. Blair, Obama pick for Director of National Intelligence. Notably, in his written responses to post-hearing questions, Mr. Blair indicated that he supports the provisions for retroactive immunity for telecommunications companies in FISA.
• On January 26, a day after the 36th anniversary of the decision in Roe v. Wade, President Obama issued a memorandum revoking the limitations of the “Mexico City Policy” initiated by Ronald Reagan and reinvigorated by President George W. Bush. The policy limits USAID funds to NGOs which encouraged, counseled or provided information about abortions in other countries. The memorandum directs the Secretary of State and the Director of US AID to revoke the limitations and notify grantees that the limitations have been revoked.
• Rounding out his first week in office, President Obama issued a memorandum to the Secretary of State on Tuesday, January 27, authorizing her use of up to $20.3 million to help migrants and refugees affected by the violence in Gaza.

Week 2: 1/27/2009 – 2/3/2009

• On Friday, January 30, the President issued a memorandum creating a White House Task Force on Middle-class Working Families. The task force will be chaired by Vice President Biden and focus on a broad variety of issues such as improving higher education opportunities, extending health care, protecting income and living standards, and protecting retirement benefits of middle class Americans.
• The same day, President Obama issued four executive orders:
  • • Executive Order 13494 forbidding government agencies from paying companies for money spent encouraging or discouraging unionization.
    • Executive Order 13495 entitling service workers displaced by a change in government contractor to the right of first refusal in retaining their employment. The order mandates that where a service contract expires, the successor contractor must give current employees performing “the same or similar service at the same or similar location” the right of first refusal before hiring replacement employees.
    • Executive Order 13496 requiring government contractors to conspicuously post notice of employee rights under the National Labor Relations Act. Contractors who fail to comply with the orders terms risk termination of their contracts.
    • Executive Order 13497 concerning regulatory planning and review, revoking Executive Order 13258 and Executive Order 13422. The revoked orders had amended the regulatory review order issued by President Clinton, E.O. 12866. The effect of President Obama’s order is to restore 12866.

Week 3: 2/3/2009 – 2/10/2009

• On Wednesday, February 4, the President issued a memorandum revoking two letters issued by the Centers for Medicare and Medicaid services during 2007 and 2008 which limited states’ ability to set income eligibility levels for their SCHIP programs. The memorandum eliminates the requirements of the two letters giving states freedom to administer SCHIP programs.
• On February 5, President Obama issued three executive orders regarding Presidential councils.
  • • Executive Order 13498 amended Executive Order 13199, establishing the President’s Advisory Council on Faith-Based and Neighborhood Partnerships.
    • Executive Order 13499 amended Executive Order 12835, which established the National Economic Council, by increasing the size of the Council to include such new members as the Secretary of Health and Human Services, the Secretary of Education, and other senior Presidential advisors.
    • The third, Executive Order 13500 amended Executive Order 12859, which established the Domestic Policy Council, by changing the titles of certain members of the Council.
• President Obama also issued a memorandum requesting that the Department of Energy issue energy efficiency standards for a broad range of residential and commercial products. The President noted that the department has failed to comply with the requirements of the Energy Policy and Conservation Act of 1975, the Energy Policy Act of 2005, and a consent decree it entered into in 2006. The President requested that the Department of Energy bring itself into compliance as quickly as possible.
• Nominations hearings were held for two Obama appointees on February 5.
  • • A hearing was held before the Senate Select Committee on Intelligence for Leon Panetta, nominated to be Director of the CIA. At the hearing, Mr. Panetta vowed to chart a different course with respect to detainee renditions, but possibly left open a loophole for harsh interrogation techniques
    • A hearing was also held before the Senate Judiciary Committee, David W. Ogden, nominee for Deputy Attorney General. At the hearing Mr. Ogden indicated that he “objected very strongly” to Bush-era OLC opinions on interrogation techniques, and pledged to uphold the rule of law.
• On Friday, February 6, President Obama issued Executive Order 13501 creating the President’s Economic Recovery Advisory Board. The board, made up of “distinguished citizens outside of government,” will meet together often to offer the president advice about the financial crisis from “all across the country and all sectors of the economy.”
• On the same day, the President issued Executive Order 13502 allowing federal agencies to require “project labor agreements,” or collective bargaining agreements with “labor organizations” for specific construction projects, in order to improve economy and proficiency in federal procurement.
• On Monday, February 9, Senate Judiciary Committee Chairman Patrick Leahy gave a speech at Georgetown University, in which he proposed that a “Truth Commission” be organized to investigate the alleged abuses of the Bush administration. Republican lawmakers largely oppose the proposal, and President Obama has been noncommittal about it.
• Also on February 9, Justice Department lawyers surprised progressives when in oral arguments before the Ninth Circuit in Mohamed v. Jeppesen Dataplan, they maintained the state secrets argument that Bush lawyers successfully used to get the case dismissed at the District Court level. An audio file of the Mohamed oral arguments can be found here. Executive Watch’s commentary on the state secrets issue can be found here.

Week 4: 2/10/2009 – 2/17/2009

• On Wednesday, February 11, in an apparent response to the Obama Justice Department’s decision to reassert the state secrets privilege in Mohamed, Senators Leahy, Specter, Feingold, and Kennedy reintroduced the State Secrets Protection Act (the text of which can be read here). Members of the House likewise introduced their own version of the bill. The bill provides a uniform set of procedures for federal courts considering claims of the state secrets privilege
• The same day, the Justice Department requested a 90-day delay in an ongoing case with the ACLU to give it time to determine its position regarding the release of major OLC torture memos requested under the Freedom of Information Act. A hearing set for February 18 was cancelled when the Justice Department agreed to a 30-day extension. In about “half a dozen” other ongoing suits, however, Justice Department lawyers have taken a more strident stance in guarding against the release of Bush-era documents.
• On Thursday, February 12, the Committee on Homeland Security and Governmental Affairs conducted a hearing entitled “Structuring National Security and Homeland Security at the White House.” Christine E. Wormuth, Senior Fellow at the International Security Program Center for Strategic and International Studies, advocated merging the National Security Council and the Homeland Security Council, but Tom Ridge disagreed. Frances Fragos Townsend, Homeland Security Advisor under President Bush, pushed for a single advisor to keep the President appraised of security threats.

Week 5: 2/17/2009 – 2/24/2009

• On Wednesday, February 18, the D.C. Circuit reversed a District Court decision ordering the release of seventeen Chinese ethnic Uighurs from Guantanamo Bay into this country. The administration, which is now responsible for the Uighuir’s fate, may still attempt to resettle the detainees outside the U.S. Read Executive Watch’s commentary on the D.C. Circuit decision here.
• On Thursday, February 19, President Obama issued an executive order creating a White House Office on Urban Affairs. The office is tasked with developing a comprehensive policy on urban affairs including improving coordination between the federal agencies whose actions impact urban life, ensuring federal government dollars are spent effectively, and reaching out to state and local governments.
• The same day, the D.C. Circuit ordered that the White House take a position on whether Harriet Miers and Josh Bolten may assert executive privilege in response to congressional subpoenas. The White House’s position may have major implications for Karl Rove, who has also been subpoenaed. The administration has indicated its hesitancy to take a position that might “undermine or weaken the institution of the presidency.”
• On February 20 President Obama ended the week by issuing an executive order amending executive order 13390 which had authorized the creation of a coordinator to supervise federal rebuilding efforts in the wake of hurricanes Katrina and Rita. Obama’s order extends the life of the coordinator position until September 30; it was previously scheduled for termination on February 28, 2009.
• On the same day Attorney General Eric Holder announced the creation of a task force to review the status of detainees being held at Guantanamo Bay, as required by President Obama’s executive order to prepare for the closing of the prison within one year. Holder appointed Matthew G. Olsen, Acting Assistant Attorney General for National Security, to lead the task force. Olsen joined Holder on a day trip to Guantanamo February 23.
• Also as required by President Obama’s executive order on Guantanamo Bay, a Pentagon report on conditions at the prison is to be delivered to the White House this week. The report, authored by Adm. Patrick M. Walsh, reportedly concludes that conditions at the prison meet Geneva Convention standards.
• In an ongoing case involving prisoners being held at a military base in Bagram, Afghanistan, on February 20 the Justice Department signaled that it would stand by the argument initially set forth by Bush lawyers—that the Bagram prisoners may not file habeas proceedings in U.S. federal court. See Executive Watch’s previous discussion of the case here.
• After initially demanding that the Obama administration take a position in the executive privilege case involving Harriet Miers and Josh Bolten by February 25 (see Executive Watch’s previous discussion here), on February 23 the D.C. Circuit extended that deadline to March 4. Meanwhile, Karl Rove yet again defied a subpoena to testify before the House Judiciary Committee on the political firings of several U.S. attorneys during the Bush presidency.
• The Senate Judiciary Committee is planning to vote on the nominations of Elena Kagan as Solicitor General and Thomas Perrelli as Associate Attorney General. The Judiciary Committee has posted the nominees’ answers to written follow-up questions on its website (see here and here). Kagan and Perrelli each ducked questions (from Senators Leahy and Specter, respectively) on the ongoing state secrets case, Mohamed v. Jeppesen Dataplan.
• In his Tuesday night address to Congress, President Obama indicated that Vice-President Joe Biden would lead a “tough, unprecedented oversight effort” over the disposition of fiscal stimulus funds—“Because nobody messes with Joe.”

John Gochnour and Stephen McIntyre contributed to this post.

This entry was posted on February 25, 2009 at 10:11 am and is filed under News. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.