Here's Empty Wheel:
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. [my emphasis]
And Jonathan Schwarz takes a rip:
Obviously, the implications of this OLC opinion go far beyond the warrantless wiretapping of Americans. While it appears that Whitehouse wasn't primarily interested in EO 13292, presumably the OLC opinion governs all Executive Orders. So in other words, the President can declassify at will (well, he could do that anyway). Or more importantly, he could authorize his Vice President to refuse to tell us about his classification and declassification guidelines (as Dick did to ISOO--I'm betting this opinion is why AGAG refused to rule on the ISOO/Dick dispute), and he can unilaterally declassify anything and leak it to Judy Miller or some other hack journalist.
But here's the other key point (and one of the reasons I like the way Whitehouse works). He specifically asked Michael Mukasey about EOs before Mukasey was approved.
2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?
ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.
So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. "Of course the President can't violate his own EOs! He would need to change them first!"
And now the AG is on record as thinking this whole state of affairs stinks.
In other words, the president is the law. Exciting! At least if you are the kind of person who enjoys watching government agents crush your son's testicles!
Whitehouse concludes:When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories.