Saturday, December 08, 2007
The blogging mentality, I suppose -- Jack and I were writing similar posts at the same time.
You (and Jack) have thoroughly deflated at least me. *g*
Here, where I thought Senator Whitehouse had provided the nation, the penultimate "gotcha" on this Administration, you inform us that "nope, this is merely constitional business as usual".
But I would venture one small point in our defense (at least Senator Whitehouse and I). Namely that what the he and I saw as threatening may be more as a result of this Administration's real assault on not only our civil liberties, but the rule of law.
You have a broken link for the Dellinger quote.
"The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions"
I'm curious about this, since it was raised when Sen. Durbin spoke about certain things he said he couldn't fully discuss for comparable reasons. What about the Speech and Debate Clause?
Cf. Gravel's reading of parts of the Pentagon Papers into the Congressional Record. Congress might choose for some reasons to keep things secret, but could the EXECUTIVE tell them to do so?
Exactly what is the problem with any of these self evident propositions?
While the Courts have the final say, the elected branches also have the necessary authority to interpret the laws to do their jobs. I do not see Whitehouse complaining that Congress does not have the power to interpret its Article I powers.
As the sole executive, the President makes the final legal interpretations for the executive branch. DOJ works for the President and can either follow the President's orders or resign as Marty suggested.
Finally, the executive orders of prior Presidents have only the effect which the current President decides to give them. There is no executive stare decisis.
Marty does suggest an interesting question of whether the elected branches should defer to an obviously unconstitutional Court decision. Judges are just as human and often just as political as the elected branches. If the courts act unlawfully and create an constitutional crisis, should the Executive ignore the ruling and the Congress impeach the outlaw judges as should impeach an outlaw President? If not, why not?
If the President publicly rescinded 12333, there would be a huge outcry.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.
I do not see how this is a problem. Whitehouse is on the Intelligence Committee. All he has to do is ask what the NSA is up to if the President has not already had the committee briefed on the NSA's programs and minimization procedures.
The fact that Whitehouse implies rather than states that the President is violating EO 12333 means that Whitehouse is the one acting in partisan bad faith. Either he knows that this implication is not true or he has not bothered to ask.
Having lived in Paris as an American for 17 years and knowing the significant number of intelligence assets in the overseas American community (persons use to call Sunday at my church a gathering of the CIA types), I am pretty confident that Americans abroad have been spied on by the Americans notwithstanding any Executive Order.
The direct way is in the contacts with people under cover who talk with you about what you are doing and are clearly gathering intelligence about the country in which you are working. This happened to me at a lunch with an American Ambassador once in an African country. Clearly he was pumping me for information.
The indirect way would be the spying by the national intelligence service of the country you are in who would be absolutely pleased to pass along information about you to the American authorities as part of the information sharing among intelligence colleagues. I am not aware of any US law that bars the US from receiving that information. I asked this question at a conference at Duke in 2005 and was "assured" that there are "protocols" on these things. I suspect those are "protocols" that can be amended at a moment's notice within any language that is in the cited Executive Order or otherwise.
It is a tradition of thinking of Americans abroad as second class citizens that goes back to the 30's. The underlying vision is that any American living abroad can not be a true American - otherwise they would have stayed in the United States. This affected nationality laws etc so that it was harder to pass on US nationality to children in 1980 than it was in 1830.
There is nothing remotely nefarious about simply asking other Americans what is going on in a country. This is the most basic type of information gathering. Police and the press do this all the time to find out what is happening in their neighborhoods.
Nor does asking a fellow American what is going on in a foreign country somehow imply that he or she is a second class citizen. It is perfectly natural to speak with someone familiar before asking a citizen of a foreign country.
About rescinding the E.O., US v. Nixon stated that the President needs to follow his own rules even though he has the discretion to waive them. The decision was based entirely on the idea of public scrutiny. The President had appointed a special prosecutor, and the court said that if the President didn't want the special prosecutor to subpoena his tapes, the President would need to openly fire the prosecutor or change the prosecutor's role because the President had previously authorized the special prosecutor to have these powers. Thus, if the President doesn't want to follow his E.O., he needs to openly change the E.O., but until such time as the president makes that change, the E.O. has the force of law. I believe several people have criticized US v. Nixon on this basis, but I am not aware of this holding being overturned.
Marty your comments seem to be one of the below:
a. a catch 22 syndrome
b. an oxymoron
c. a Constitutional conundrum
I think c. because throughout the Constitution the stress upon The Rule of Law as a strict check upon "personal or monarchical powers" and that every man is equal under The Law.
Explain to me in plain English how a fascist VP and his stooge can use the Constitution to defend their unconstitutional and probably illegal actions against both The Rule of Law and the US Constitution.
The OLC statement is subject to (at least) two interpretations. It says:
"1. "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."
1. The benign, no-contest interpretation is something like: Well a lot of actions are possible. That being the case, there will be times when the lawfullness of a contemplated action isn't immediately clear, and since the Pres is head of the exec branch, there's no one but him or his minions in the branch to make that determination. Other branches may disagree, in which case they'll have to settle the issue by fighting, as provided in the constitution.
OR (the Leninist interpretation I think Whitehouse was talking about)
2. Under article II, the president can determine what his own powers are. If another branch disagrees, well tough noogie. We're under Article II! He has the power to add to his powers. If his determinations nullify any part of the Constitution, no problem. It's constitutional!
The notion of using the Constitution to cancel itself like this seems absurd. On the other hand, what would you expect from a Leninist like Bush?
Marty, I agree with Richard -- it depends on what is meant by "determine" -- (1) "come to an interim judgment about" or (2) "come to a binding, final, unreviewable judgment about." Determine can mean something like that in math and statistics, at least -- roughly, "leave no alternative to" -- and perhaps in law as well, esp. when slippery lawyers at OLC are involved.
Given the last six years, I assumed Whitehouse meant he'd read the OLC documents to indicate the latter variety of "determine." (Whitehouse's 3rd point, the one you see some potential merit to, points in a similar direction: "determining" stuff by just not telling anyone what they're up to.)
That might seem a stretch by the standards of the OLC you worked for; it doesn't seem as much of a stretch for the current OLC.
You guys just don't get it. Confronted with the choice between:
a. Sheldon Whitehouse is upset over nothing
b. the Bush administration believes it is above the law
You chose a.
After seven years, you still can't admit to yourself that our country is run by would-be tyrants.
Seven years? "Would be tyrants?"Post a Comment
Let's see . . . beginning early next year and running through mid-summer, the Republican's will pick their standard bearer (and the Democrats too, but that's beside the point).
Later, in November, there will be an election and between January 19 and 20, 2009, President Bush will move out of the White House and VP Cheney will move out of the VP's residence.
Kind of a quiet end of a tyranny, as tyrannies go, I would say. Do you doubt this scenario?
So, you've made it for seven years. If you can hold out for just another 13 months and 9 days your "would be tyrants" will be gone and you will have another pair to worry about. That's how our system works. Great, isn't it?