Senator Whitehouse (no, really), learned some things about how the Bush Administration views its own legal powers:
For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.
As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island's Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.
To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.
- An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
- The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.
- The Department of Justice is bound by the President's legal determinations.
Bush writes his own rules, and doesn't have to tell you when they change. He determines if his conduct is legal or not. And he tells the Courts what the laws are.
And the Democratic Congress is afraid to say "No, you stupid fucker, that's not how things work in this country!" - or maybe it is.
You know, I’m not so bothered by #1, since he has the power to revoke executive orders at will (I believe) such that making him go through the formality of amending one or revoking and then re-imposing one seems an elevation of form over substance, although it might be nice to have a documented “exception” to, e.g., the formal EO banning assassinations (I’ll admit I don’t know enough of the case as to whether that is correct or not).*
I’m not sure what they mean by #2. If they mean that if the President determines that he can torture children in pursuit of national security and that that determination is not subject to review by a court whose decision would be binding, then they are totally bat-shit insane. If it means that whenever a President says “take action X” he has determined its an exercise of his Article II powers – well of course he has (assuming that he takes his oath of office seriously, which is a rather large assumption). The word “lawful” makes me think they have adopted the bat-shit insane interpretation (along with everything else these criminals have done).
I’m not sure about #3 because the Constitution contemplates executive departments and IIRC SCOTUS has upheld things like the Independent Counsel statute (or whatever law it was Ken Starr abused) where the President couldn’t fire him/her, but I don’t think #3 is necessarily incorrect as a legal matter (as opposed to what should be the case).
But yes, I agree with you:
NO, YOU STUPID FUCKER, THAT’S NOT HOW THINGS WORK IN THIS COUNTRY[!]
*And note I didn’t read Emptywheel’s post so to the extent she’s citing court decisions to the contrary of the above, you should believe her rather than my “Ugh plus-three” typings.
yeah, emptywheel and Whitehouse made it all sound pretty dire. they could be hyping, for all i know about the law…
(emptywheel and Whitehouse : good band name)
OT – back to my computer woes. So the Windows reinstall worked, though I can’t seem to get the all the drivers installed that are necessary. Do you need a driver for an ethernet card?
Do you need a driver for an ethernet card?
typically, yep.
did you get any driver CDs with the PC when you bought it? it’s usually included there.
sigh……(sound of total hopelessness setting in)
Yeah I got the drivers CD, but it doesn’t seem to have one for the ethernet card. In any event, I got online via my wireless so I don’t need to worry about the ethernet card. Now, if I can just figure out why Windows XP Service Pack 2 didn’t install correctly I’m most of the way out of the woods.
Back on-topic: I see Marty Lederman and I were on the same page on this one.