Balkinization: Senate Judiciary Hearing on Secret Law

Comments:

Great hearing. I learned that Nixon was right. When a President does something, it cannot be considered illegal. The president can secretly rescind prior executive orders and act in contradiction of them.

# posted by

drational : 11:08 AM

For the PDF averse, Rivkin's testimony in plaintext.
.

Rivkin Testimony on Secret Law - April 30, 2008

# posted by

cboldt : 11:54 AM

interesting ..but congress is still the only constitutional body which has the power to declare war ..and so far it has not done so ..

# posted by

Jkat : 12:48 PM

I appreciate the Rivkin .html link. I find this telling:

have had the privilege to
participate, I frequently pose the following question: "If you don't like how the Bush Administration has altered the peacetime balance between liberty and order,
how would you alter the balance?"

I have never received a serious answer.

Again, "serious" = "what I agree with." The citation of William Rehnquist (symapathetic to Japanese internment, at least the non-citizens, who were non-citizens because of discriminatory laws) as a source of what is "entirely unexceptional" is telling.

I also wonder about these soft "21st Century sensibilities" (as compared to the human rights law created post-WWII?) and references to "law of war" to apply not to short time conflicts but "long wars" against terrorism.

I didn't find the discussion overall that "serious" honestly.

# posted by

Joe : 1:33 PM

Wonderful. The CIA and FBI are so busy fighting over turf that 9/11 happens, the only way to cover it up is to expand the sense of threat, consequently we must surrender our rights to them.

# posted by

Anonymous : 1:37 PM

i found dawn johnsen's testimony to be quite instructive.. had eh collective advice of the 31 former O.L.C. lawyers been in force we'd be in a far better place ..

# posted by

Jkat : 6:26 PM

I notice that there are no substantive rebuttals to Rivkin's statement forcefully slapping down Dem talking points which range from the historically naive to the willfully ignorant.

I would only fault Rivkin for using the term "our 21st Century sensibilities" when what he is actually criticizing are "leftist post Vietnam sensibilities" which are not shared by a majority of voters, thus the riposte aimed at Dem politicians that they are unwilling to alter the Bush Administration wartime balance between liberty and order out of fear of the voters.

# posted by

Bart DePalma : 9:54 PM

drational said...

Great hearing. I learned that Nixon was right. When a President does something, it cannot be considered illegal. The president can secretly rescind prior executive orders and act in contradiction of them.

Executive orders are simply the orders of the President reduced to writing. They are not at all binding on subsequent administrations. For example, if the electorate votes for a change in policy by electing Obama, he most certainly can (although it is uncertain he really would) reverse Mr. Bush's executive orders and replace them with his own.

# posted by

Bart DePalma : 9:59 PM

Bart said:
"Executive orders are simply the orders of the President reduced to writing. They are not at all binding on subsequent administrations."

The point of the hearing was that they are not binding to the current administration. And this interpretation was decided in secret, without informing anyone.

You may be content to live under a dictatorship; You may be happy with that dictatorship perpetrating torture; You may feel driven to lie and decieve in arguing in favor of a dictatorial Government.

But I am near certain that the traitorous desires and actions of people like you will ultimately be thwarted.

# posted by

drational : 7:36 AM

"The point of the hearing was that they are not binding to the current administration."

Well, of course not. And any given Congress is free to repeal the laws it passes. This is contraversial?

I find myself at odds with Bart on occasion, but he's quite right that Congress, which most assuredly has the power to slap down the President, is refraining from doing so out of fear the voters might not appreciate their doing so. Which kind of makes hash of the notion the President is violating American sensiblities. Maybe he's violating the sensiblities we OUGHT to have, but not the ones we DO have.

# posted by

Brett : 1:06 PM

Bart's twin Brett writes:
"This is contraversial?"

You are late to the party. The title of the hearing was "Senate Judiciary Hearing on Secret Law". There is no problem with changing law or rescinding presidential orders, so long as it is done within a framework of Democratic and constitutional principles. The problem lies with a government that hides from its citizenry (or at a minimum its "coequal" branch) the fact that they have changed the law or order. Or hiding the fact that they are operating under the premise that they can violate law and order at any time for any reason the President deems necessary. Thus, whereas one might assume existing law and order is universally applicable, this Administration, and Bart, and apparently you, believes that law and order is not meant to apply to the executive. Get it yet?

It's the secrecy, stupid.

# posted by

drational : 2:13 PM

drational:

Neither the Constitution, democratic principles nor common sense requires the President to make his orders concerning secret intelligence gathering public.

Rivkin properly skewered the Dems for not offering alternatives.

The Dems demand and then take pot shots at the legal advice given the President without seeking their own legal advice, enact legislation to clarify the law to in response to Executive opinions with which they disagree or impeach the President for allegedly "violating" the law.

Consequently, farces like this hearing can only be interpreted as political theater meant to placate those of the Dem base like you without taking any meaningful action which would endanger the Dem's thin political majority.

# posted by

Bart DePalma : 2:33 PM

Bart:

why did you crop the jackboots out of that lovely picture?

# posted by

drational : 3:32 PM

Drational, while, amusingly, I do have a brother named "Bart", (Mom was a fan of the Maverick Brothers Western.) obviously his last name isn't DePalma.

Let's be clear about this: There's nothing particularly controversial about the proposition that a President may change his mind about an executive order, repealing either his own or prior Presidents'. Nor is it particularly controversial that a President doesn't have to publicly reveal executive orders having to do with classified activities. (Though they should, of course, be available to the Intelligence committee.)

These two relatively non-controversial propositions, of course, say absolutely nothing to the legitimacy of the contents of such executive orders. Which are perfectly capable of being illegitimate in substance, even if issued in a legitimate mode.

# posted by

Brett : 7:20 AM

Drational, while, amusingly, I do have a brother named "Bart", (Mom was a fan of the Maverick Brothers Western.)

Does this mean there's a Beau or a Brent in the family too?

# posted by

Mark Field : 1:39 PM

Bart boasts --

". . . the willfully ignorant."

At which Bart is our resident expert and practitioner.

Or do I inadvertently flatter by not eliding "willfully"?

# posted by

JNagarya : 10:52 PM

Bart urges his lying as instead beigng fact --

"I would only fault Rivkin for using the term "our 21st Century sensibilities" when what he is actually criticizing are "leftist post Vietnam sensibilities" which are not shared by a majority of voters, . . . ."

Wake up, Bart: the US lost in Vietnam, and could not have won there, a fact conclusively illustrated by the basic numbers: 500,000 US troops v. millions and millions of Asians.

The "eft" notwithstanding, though the left was correct and successful in ending that wrong by the US imposed upon a situation which was none of the US's business.

As for the majority of voters, Bart:

70+ per cent are pro-choice.

70+ per cent are pro-gun controll.

Well over 70+ per cent oppose your and Bushit's Iraq Vietnam-repeat debacle.

"thus the riposte aimed at Dem politicians that they are unwilling to alter the Bush Administration wartime balance between liberty and order out of fear of the voters."

You are opposed to altering that balance, Bart, because you are gung-ho for, as centerpeice, a robust anti-Christian and anti-American torture regime.

And you do not speak for the majority of voters, because the majority of voters are not lunatic fringe pretending to be mainstream.

# posted by

JNagarya : 11:00 PM

Brett confuses assumption for fact --

"I find myself at odds with Bart on occasion, but he's quite right that Congress, which most assuredly has the power to slap down the President, is refraining from doing so out of fear the voters might not appreciate their doing so. . . ."

While it's possible the Congress -- specifically, the Democrats -- fear that prosecuting the Bushit criminal enterprise, it is also possible that Congress -- specifically, the Democrats -- are content to expose the Bushit criminal enterprise for what it is, over the long period leading up to the election, so that We the people have all the evidence we need, and then some, to repudiate the Republican party altogether.

Then again, I could be wrong: unlike you, I'm not able to read minds.

# posted by

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