I just finished reading the press release from Senator Whitehouse on his findings of the legal opinions issued by the Department of Justice’s Office of Legal Counsel (OLC) regarding the “Protect America Act.”
In a nutshell, Bush has set himself up to be the supreme Dictator. He makes the rules, which he can change at any time to suit his needs. The three branches of Government all seem to have been replaced by one person, the President. Or is it Dictator now?
From Senator Whitehouse’s press release: 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.
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.”
Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever. The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.
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 the 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. That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration and this OLC opinion shows why we need to correct it.
Here’s number two. 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. Yes, that’s right. The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are. Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is emphatically the province and duty of the judicial department to say what the law is. Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.
The question is whether an action is a lawful exercise of the President’s authority under Article II, is to be determined by the President’s minions, exercising his constitutional authority under Article II. It really makes you wonder, who are these people? They have got to be smart people to get there. How can people who are so smart be so misguided?
And then, it gets worse. Remember point three? The Department of Justice is bound by the President’s legal determinations. Let that sink in a minute. The Department of Justice is bound by the President’s legal determinations.
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