The Bush Administration issued legal opinions related to its warrantless wiretapping which said the president can violate his own executive orders and that the Justice Department must obey the President's legal decisions, according to a speech from Senator Sheldon Whitehouse (D-Rhode Island) on the Senate floor Friday. Whitehouse, along with senators on the Intelligence and Judiciary committee were granted access to the Justice Department's Office of Legal Counsel opinions in November after key senators agreed to push for amnesty for telecoms being sued for privacy violations.
Whitehouse's speech was the first to reveal the contents of those documents, which he pushed to get unclassified after viewing them in November. Whitehouse described the contents of three of the opinions as:
1. 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.
2. 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.
3. The Department of Justice is bound by the President’s legal determinations.
The executive order override opinion (if it is how Whitehouse describes it) would let the president override, without telling anyone, orders such as Executive Order 12333. That's the order that tells the nation's intelligence services what they can do in terms of intelligence, outside of laws passed by Congress. So for instance, in the past, those rules determined what how surveillance overseas affects Americans.
But Whitehouse says the documents he saw and took notes on in a secret room shows that the White House believes it is not bound by those rules, if it so chooses.
But what does this administration say about executive orders?
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.
“Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”
So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.
I for one, would really like to see the opinions for myself and to see what Balkinization's Marty Lederman (a former OLC lawyer) has to say (UPDATE: See Lederman below.).
But Whitehouse is no legal lightweight. He's a former
In a nutshell, these three Bush administration legal propositions boil down to this:
1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”
2. “I get to determine what my own powers are.”
3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”
That said, the real meaning in these documents aren't so much the revelation that this Administration believes it is Kingly (especially in wartime).
The remaining questions are what did the Administration do with its royal powers, how does one roll them back and why is the Senate letting the King's sycophants in the telcom industry escape from the courts?
UPDATE: Marty Lederman, a fomer lawyer in the Justice Department's Office of Legal Counsel, sifted through Whitehouse's remarks and finds most of them overblown, except for the revelation that Bush likely did not follow Executive Order 12333 - the one that binds the intelligence community's spying on Americans.
That, according to Lederman, is huge:
Apparently -- and this is real news of the Whitehouse statement -- the President decided to secretly ignore Executive Order 12333, which, among other things, has long been the only real source (other than Fourth Amendment) of legal protection of the privacy rights of U.S. persons overseas vis-a-vis surveillance by the federal government. This is a gap in FISA that the 1978 Congress said it would get around to closing -- but it never did. And so the only thing standing between
If the President publicly rescinded 12333, there would be a huge outcry. It would prompt Congress to act immediately.
Which is presumably why he didn't do so in public. Whitehouse suggests that the President secretly transgressed 12333. If so -- if in fact the President chose to ignore 12333 without notifying the public or Congress, it's quite outrageous -- constitutional bad faith, really, to announce to the world that you are acting one way (in large part to deter the legislature from acting), while in fact doing exactly the opposite. It might even mean that the Administration allowed executive branch officials to mislead Congress by assuring them in testimony that 12333 remained a serious limitation on government surveillance. (Now that's something worth investigating.)
So Senator Whitehouse is basically correct when he characterizes the President as saying "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."
This might not be unconstitutional -- it might not even be illegal -- but it is a serious breach of faith, and a severe threat to the operation of checks and balances, if, indeed, the President has been secrecy authorizing violations of E.O. 12333.
Note: Bold font used by this blogger.
Comment: Here we sit following the days after 9-11 and our civil liberties are slowing and quietly being taken away from us by Congress, and the President is too frequently turning his back on the Constitution. While we can be assured that Senator Whitehouse is an opportunist and a partisan, his allegations do have merit. But where is the rest of the Senate? Well, looking the other way because they are not beholding to their state or the citizenry, but to the special interest lobbies that are intertwined with our leaders in DC. Truly there is a lack of balance in our government, but it’s we the people that are paying the price.