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Whitehouse Discloses DoJ Legal Opinions on Executive Power
Earlier today, Sen. Sheldon Whitehouse (D-RI) took to the Senate floor to explain why he thinks it's important to actively counteract the administration's continual exertions of executive power. A telling illustration of that continual effort is what they do "when they think no one is looking," he said.
He then went on:
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.
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.
Those three principles, he said, boiled down to:
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.”
You can read the entirety of his remarks here.
Comments (33)
moondancer wrote on December 7, 2007 6:41 PM:I love this guy.
Freewheelin' Freddie wrote on December 7, 2007 6:41 PM:As far as the OLC opinions, they remind me of the club charter for the Little Rascals. As written and amended by Spanky, ALfalfa, and Buckwheat LLC.
President Whitehouse? What a cohinkydinky!
behindthefall wrote on December 7, 2007 6:48 PM:Freewheelin' Freddie wrote on December 7, 2007 6:41 PM:
>>>President Whitehouse? What a cohinkydinky!
Been saying for months that he's the only politician on the scene who, it seems, might be likely to stuff the powers of the POTUS back into the Constitutional bottle. Given that this 'doctrine' he's uncovered means that only POTUS determines the law and can judge the rightness or wrongness of Presidential actions, only such a person should occupy that office. So ...
"WHITEHOUSE IN THE WHITE HOUSE!!!"
JW wrote on December 7, 2007 7:15 PM:"Actively counteract"? What do you mean by that?
You do recall that impeachment is "off the table", right?
What was it Cheney said? Something like, "We'll do what we feel like doing until stopped by a greater force"?
That means Constitutional process. Barring that, who's going to stop those people? You? Me? Your blog? Anyone's blog? More e-mails to my congressman (Thompson D-Ca.)?
It would do my heart good to be able to finish on a high note- but I can't. Barring impeachment, what force can possibly stop these truly evil people?
Don Kimball wrote on December 7, 2007 7:15 PM:Does the entire Bush administration consider the Constitution a scrap of paper?
chabuka wrote on December 7, 2007 7:18 PM:this is incredible...and still there are those who think that the President should have those rights...IF they are a Republican President, that is....what say you now...Pelosi? Reid? Hoyer?
Civil Rights LOL wrote on December 7, 2007 7:49 PM:that's exactly how most of Justice is run ... just as the Bush Administration says ... Bush says JUMP ... you should see DOJ management ... leaping like kangaroos
cwazycajun wrote on December 7, 2007 7:52 PM:call me cwazy and Im sure u will but how come Im not the least bit suprised by this...cant wait for kieth olbermans special comment on this
the dems have no spine
the repubs have no shame
the bush admin has no soul
diane wrote on December 7, 2007 8:01 PM:Sen. Sheldon Whitehouse is from RI not WA 12/7/07 6:27 pm
anon wrote on December 7, 2007 9:39 PM:Whitehouse's presentation today was the most positive thing I've seen in years. He certainly has my attention.
Mark Richards wrote on December 7, 2007 10:26 PM:If Sheldon stands up and delivers (filibuster, etc) on the important issues, then I'll put a "Whitehouse to the White House" sign on the lawn.
Until then, qualifications for office must be earned by kicking ass.
Time for the chattering to end and the ass kicking to commence.
The same criteria goes to Hillary, Obama, Dodd (credit for threatening), and Biden (credit for threatening impeachment). They all have the power but have otherwise refused to use it.
JulieL wrote on December 7, 2007 11:11 PM:The DOJ probing this? The same DOJ that the Bush administration says "The Department of Justice is bound by the President’s legal determinations. "
The same DOJ that's filled with "loyal Bushies"?
CONGRESS has to investigate. A DOJ investigation would be a joke.
carolyn wrote on December 8, 2007 1:36 AM:Thank you, Diane,
Roberta wrote on December 8, 2007 1:49 AM:I checked and you are so right. He is from RI and they deserve the credit for electing such an intelligent senator.
I'd rather keep Sheldon in the Senate. His actions can't help but shake at least a few of the senators out of their torpor.
He's an essential cog in the mechanism for checks and balances. It's at a moment like this (realizing just how good it is to have him in the Senate) that I back off on my desire to implement term limits for the Congress. Keep Whitehouse in the Capitol until he's older than Strom Thurmond was!
Steambomb wrote on December 8, 2007 2:56 AM:Any word on the Vermont succession? If they did it. I would certainly move there. I of course would have to ask for political asylum.
parrot wrote on December 8, 2007 4:36 AM:Since when does the Constitution mention a King as the final determiner of our laws? Impeachment couldn't come soon enough...
johnnydoughey wrote on December 8, 2007 4:53 AM:Okay....
Anyone been keeping score as to just how many facts have surfaced in the past six or seven years which would prove that the president has lied, misinformed, tortured, withheld information, usurped the Constitution...etc...etc.
And just how many times have our leaders in the other two branches (either Republicans or Democrats) taken the ethical and legal (remember the oaths they all took when elected) process to administer justice upon the ill doers? Just how many of them have chosen to represent "We the People" rather than "They the Representatives"?
If, at the local level, this many malfeasences were not at least brought into a courtroom for a trial, there would be uprisings in the streets.
These injustices, however will only affect our nation's democracy and our future generations to come, so apparently they are not as worthy of our disdain....
"We the People" no longer deserve a nation with liberty and justice for all...IMHO
TheraP wrote on December 8, 2007 7:32 AM:moondancer: Your comment nails it! Yes, this administration is like a kid deciding on laws... while professing "nobody told me that!"
For a really in depth discussion of this speech and its implications, see emptywheel's long post from Friday and a comment thread which is 325+ long.
frances wrote on December 8, 2007 8:19 AM:I just sent an email to and called Senator's Whitehouse's office thanking him for his presentation; I then called my Senators asking them to support him.
I will call my paper today and ask for ongoing coverage of these secret signing statements.
If we all do this we may be able to get it covered in the MSM, there is nothing in any of the papers I read this morning it is all about the CIA and the erased tapes.
This is the important story that will get people to realize what is happening and how fast.
TheraP wrote on December 8, 2007 8:25 AM:frances @ 8:19:
BRAVO! Let's all get the word out.
Tom In Maine wrote on December 8, 2007 8:41 AM:Between Sheldon Whitehouse and Webb from VA. one does get the hope that maybe just maybe there may be some hope for this country that Bush and his like have tried so hard to take down.
What is really worrisome about Senator Whitehouse's findings so far is that is just it only goes so far, one can only imagine how much has been buried about this administrations wrongdoings that may never see the light of day. There will be more coming out that will shock and awe but there is so much that we may never see about the greatest swindle this countyr has ever seen.
Teaeopy wrote on December 8, 2007 9:37 AM:I'm sure that President George W. Bush would claim that the attacks of 9/11 forced the yoke of being ultimate decider upon him. He'd also have us think that we are in the most perilous time in US history and utterly dependent on his strength.
noen wrote on December 8, 2007 10:37 AM:There has been a coup.
noen wrote on December 8, 2007 11:17 AM:Jack Balkin has a post on this issue up.
Whitehouse blames the White House, but he should blame Congress
http://balkin.blogspot.com/2007/12/whitehouse-blames-white-house-but-he.html
He has this to say:
"The OLC opinions that Whitehouse saw do not make the far more troubling claim that the President could disobey FISA under his Article II powers. That claim, which has been offered by various supporter of the Administration, would truly make the President more like a King.
The real problem, as Whitehouse well knows, is not the President's decision to change executive orders to expand what he may do under the auspices of the Protect America Act. The problem is the Protect America Act, which shredded civil liberties protections by redefining a wide swath of electronic surveillance as not "electronic surveillance" under the meaning of FISA.
Whitehouse doesn't like the Protect America Act any more than I do. But he should direct his fire at the Congress that produced it in a shameless display of capitulation to demagoguery and fear mongering."
TheraP wrote on December 8, 2007 12:51 PM:noen: sounded to me that Whitehouse made that very clear in his speech, that the legislation was stampeded and congress capitulated.
breakspear wrote on December 8, 2007 2:05 PM:this.man.is.a.fantastic.addition.to.the.Senate.and.Im.very.happy.that.hes.a.Dem...this.sort.of.investigative.work.wont.soon.be.done.by.a.GOPer...RI.was.right.to.fire.Chaffee...
Teaeopy wrote on December 8, 2007 2:12 PM:Behaviors that could stem from assertions of presidential prerogative that Senator Whitehouse lists might not be less serious than the Bush administration's violation of FISA or of any other particular law; for example, obstruction of justice would be easy to accomplish, as would the use of an executive order as a false front concealing the President's true intentions. I wouldn't want Senator Whitehouse or anyone else to hold off on criticizing the executive branch for attempting to grab unconstitutional powers just because Congress has passed laws not protective of the Constitution and has not held the executive branch accountable. There's room and there's reason to criticize the occupants of both branches.
Ambiguous terminology in the Protect America Act, obviously made ambiguous by design, and the secrecy surrounding surveillance make it difficult to prove violations of the Act. We should no longer doubt, however, that it is President George W. Bush's consistent position that his Article II powers trump everything else.
Lexington wrote on December 8, 2007 3:22 PM:The same day that Sen. Whitehouse was taking on the White House, Speaker Pelosi was busy jumping the shark by making brave statements about the goings on in the Page Dorm:
(actual quote) "As a mother and a grandmother, nothing is more important to me than the safety and security of our House pages.”
Great, thanks Nancy. If this is your top priority, then why don't we just put you in charge of the Cub Scouts.
For actual national leadership in a time of constitutional crisis, please see the Gentleman from Rhode Island.
I, too, have sent a note to Senator Whitehouse's office, thanking him profusely, and have asked my own representatives (from New York) to support him to the hilt.
JA wrote on December 8, 2007 7:26 PM:I have lost all hope that anything will be done about this or anything that Bushco does. Nancy Pelosi is just as guilty and as much to blame for all of it because she is letting them do it and stopping any impeachment hearings.
Churchy LaFemme wrote on December 9, 2007 12:29 AM:I think Nancy should be the first one brought up on impeachment charges, talk about someone doing a crappy job!
Ol' Whitehouse is trying to regain some credibility after accepting a whole bunch of money from the telecoms and then inserting immunity for them into the FISA bill that came out of his committee. Pretending you care: It plays well with the base.
Anonymous wrote on December 9, 2007 6:05 PM:Looks like a good case that this evidence be brought before the ICC in re war crimes.
Anonymous wrote on December 9, 2007 7:18 PM:Lawyers were found at Nuremburg to have assented to illegal orders; and made frivolous legal arguments to not remove themselves from illegal activity.
These assertions of "law" would justify -- in the Mind of the President -- Hitler's Holocaust "if the President determined" it was in the "national security" interests to do so.
He's "determined" torture is needed. The issue is only scale, not principle.
danger wrote on December 10, 2007 9:04 AM:steambomb: We shall all apply for asylum in Vermont where we will work on expanding maple syrup conglomerates. From there, flooding the chambers of government with the sweet, sticky sap more suitable for my French (freedom) Toast will help slow things down. Couldn't be any more of a sticky situation than exists currently in DC.