Whitehouse Sharply Criticizes Bush Administration's Assertion of Executive Power

Whitehouse Sharply Criticizes Bush Administration's Assertion of Executive Power

whitehouse.senate.gov

President Bush pressed this legislation not only to establish how our government can spy on foreign agents, but how his administration can spy on Americans. Make no mistake, the legislation we passed in August is significantly about spying on Americans – a business this administration should not be allowed to get into except under the closest supervision. We have a plain and tested device for keeping tabs on the government when it’s keeping tabs on Americans. It is our Constitution

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whitehouse.senate.gov

Senator Whitehouse, who is a former U.S. Attorney, a former legal counsel to Rhode Island’s Governor, and a former State Attorney General, and who now sits on the Senate Select Committee on Intelligence, was able to read "secret opinions" of the Department of Justice’s Office of Legal Counsel (OLC). What the Bush administration does is to pass "secret opinions" to the Department of Justice’s Office of Legal Counsel to get legal support for their actions. The Bush administration uses the OLC to influence and push its agenda on the Department of Justice (DOJ).

What he found in the OLC's "secret opinion" files was that Bush:

!.) believes the President does not have to follow Executive Orders, instead of breaking the order, he can modify and waive them at will. He thinks an executive Order cannot limit a President.

2.) believes the President gets to determine what powers are given to him in Article II (he gets to determine what he can and can't do)

3) believes Department of Justice is bound by the Presidents legal determinations.

So this means:

(1.) Bush thinks he does not have to abide by previous Executive Orders. The Bush administration believes:

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.

(2) Bush thinks the President was given the power to decide what powers Article II gives to the President.The Department of Justice is suppose to determine what the Constitution says, they are supposed to determine the powers that Article II in the Constitution are given to the President.

The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

Wrong, that power is given to the Department of Justice!

(3) Bush believes that the President can interpret the law. Now this one is just wrong! The Department of Justice is the branch of the government that is supposed to interpret the law. They are the ones to decide what is legal and what isn't, NOT THE PRESIDENT!

We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that “l’etat c’est moi” and “The King can do no wrong.” Our Attorney General swears an oath to defend the Constitution and the laws of the United States;

Now, this is what Senator Whitehouse has deducted after hours of going over "secret opinions" that were delivered to the Department of Justice by the Department of Justice’s Office of Legal Counsel (from the OLC's "secret opinions" is equivalent to saying from the Bush administration according to Whitehouse).

If Senator Whitehouse has interpreted these "secret opinions" from the OLC right, Bush and co. are surely overstepping the boundaries for the Executive Branch that were set in place by the Constitution.

whitehouse.senate.gov
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[edit on 8/12/07 by Keyhole]

what i did now is that in a state of emergency the constitution doesnt apply. what i recently found out is that it currently is suspended

I don't think the Constitution can be suspended indefinitely. Besides, does the knowledge that this presidential administration has little regard for the Constitution excuse their abuse of it?

How can it make any sense to any functioning person for the president to be able to decide for himself what Article II powers he has? This subversion of the DoJ to the executive branch is antithetical to the spirit of separation of powers under which our government was founded. This country's justice system wasn't meant to be run by secret opinions from the White House. It was meant to be governed by the rule of just laws maintaining the guarantees of the Constitution.

If the Constitution is, in fact, suspended the USSC needs to reinstate it immediately.

[edit on 9-12-2007 by Icarus Rising]

Executive Privilege

Originally posted by Keyhole
If Senator Whitehouse has interpreted these "secret opinions" from the OLC right, Bush and co. are surely overstepping the boundaries for the Executive Branch that were set in place by the Constitution.

With all due respect to the good Senator, I'm somewhat skeptical of his claims. I recognize that a certain amount of traditional puffery is expected of speeches delivered in the Senate, but I think he is misrepresenting what he claims the Bush administration is doing as a political gambit.

There are also some significant differences between what he's saying and what you're saying, particularly with respect to the nature and role of the Department of Justice, though there are gross conceptual errors in the case of both sources.

Before continuing, I would like to point out that I think there is plenty to be concerned about when it comes to the Bush administration, ranging from simple indiscretions to deliberate violations of law, but that is also why I think it is important not to muddy the waters with baseless accusations.

Also, I'm not a lawyer, so these are just my own opinions which may be wrong in various ways. Meanwhile, Senator Whitehouse has reminded us he is a lawyer and a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General.

So why do I feel qualified to criticize his claims?

Constitutional law is something I have a great deal of interest in, and is a subject I've studied in various ways for well over two decades. Nothing anyone says, no matter what their credentials may be, can change the text of the Constitution, which is clearly written and easy to understand (at least, when people bother to actually read it).

The fact that someone as distinguished as Senator Whitehouse is making claims and insinuations that are directly at odds with my own understanding of constitutional law is certainly grounds for examining my own grasp of the subject, but does not necessarily mean I'm the one who's wrong -- and of course I very much invite corrections where needed.

That said, let's go point by point:

Executive Orders

Originally posted by Keyhole
(1.) Bush thinks he does not have to abide by previous Executive Orders.

This is the easiest to debunk, because executive orders are issued by the President as a means of exercising his executive power.

As the name implies, executive orders are not issued by Congress or the Supreme Court. Because they are issued by the President, and not to the President, they are by nature not binding upon him.

That doesn't mean a President is free to make laws, but he is very much free to run the executive branch as he sees fit, provided he does so in accordance with the law.

The implication that the President is somehow bound or limited by his own previous decisions or by the decisions of previous presidents has no constitutional foundation whatsoever.

In other words, President Bush does not have to do what Presidents Washington, Lincoln, Roosevelt, Reagan or Clinton thought the President should do, or even what he thought he should do yesterday.

That power is his alone, and he is free to change his mind whenever he wants -- again, provided he does so in accordance with the law (i.e. "take Care that the Laws be faithfully executed").

Senator Whitehouse's complaints about Executive Order 12333 with respect to the Protect America Act are somewhat ambiguous. Congress passed the act and the President signed it. That's how federal laws are made.

If he doesn't like the act's provisions regarding surveillance of U.S. citizens overseas, he as a Senator can push for an amendment, as he is in fact doing with this speech regarding the Protect America Act.

For anyone to rely on or cite an executive order as a substitute for a federal law would actually be unconstitutional, as the Supreme Court ruled in 1952.

And indeed, after implying that executive orders are somehow binding on the Presedent, the Senator then goes on to say: "So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing."

Senator Whitehouse first implies that executive orders are somehow binding on the President and that the Bush administration is wrong to think otherwise, then in almost the same breath openly acknowledges they are not.

What does he actually believe is true?

Executive Discretion

Originally posted by Keyhole
(2) Bush thinks the President was given the power to decide what powers Article II gives to the President.The Department of Justice is suppose to determine what the Constitution says, they are supposed to determine the powers that Article II in the Constitution are given to the President.

This one is somewhat more vague from a constitutional perspective, but the assertions you've added regarding the role of the Department of Justice are flat out self-contradictory.

Why?

Because the Department of Justice is part of the executive branch, and thus falls under the authority of the President. The head of the DOJ, the Attorney General, is appointed by, serves at the pleasure of and reports directly to the President.

So to say that the President has no authority to determine what powers he has, but rather a department that works for him does makes no sense. The DOJ's authority derives from presidential authority, not the other way around.

As for the President being able to decide what powers he has under Article II, that's somewhat more debatable and subject to semantic subterfuge, but in the most practical sense and except as otherwise prescribed by law, it's true.

The Constitution grants the President "The executive Power" with very few explicit limitations, except as enumerated therein, and that "he shall take Care that the Laws be faithfully executed".

Congress does have oversight and the Supreme Court can make rulings, as explained further below, but the Senator's descriptions of his own exercise of oversight authority as a member of the Senate Select Committee on Intelligence and recent Supreme Court rulings indicate that both are functioning as intended.

Ironically enough -- it is indeed one of the roles of the Department of Justice to represent and advise the President on matters of law.

But they don't tell the President what to do. He's their boss (or "Decider", if you prefer).

Executive Authority

Originally posted by Keyhole
(3) Bush believes that the President can interpret the law. Now this one is just wrong! The Department of Justice is the branch of the government that is supposed to interpret the law. They are the ones to decide what is legal and what isn't, NOT THE PRESIDENT!

As mentioned above, the assertion that the President is subordinate to the Department of Justice grossly misrepresents its role (but that is again something you've apparently added and did not originate from the Senator).

This is also a case where hand-waving and innuendo cloud the facts.

Senator Whitehouse said: "The Department of Justice is bound by the President’s legal determinations."

He repeated it in a manner that implies it shouldn't be so, but the fact is it's true. The DOJ reports to and advises the President, not the other way around. Just ask them.

In this case the Senator's implications seem calculated to either misrepresent the role of the DOJ in advising the President or to blur the distinction between the President's powers and the powers of the Supreme Court.

It is quite true that as the vested body of judicial power one of the roles of the Supreme Court is to interpret the laws, but with regard to the President, it does so in "Controversies to which the United States shall be a Party" -- in other words, when a case is brought before it. It is also true that Supreme Court decisions are binding upon the President and everyone else, for that matter.

That doesn't mean the President needs to consult the Supreme Court every time he needs to make a decision (he has the Attorney General and other attorneys for that), but rather that the Supreme Court (or a federal court) may choose to issue a ruling when a dispute is brought to trial.

It also most certainly doesn't prohibit the President from running the DOJ however he sees fit -- but again as always under the constraints provided by federal law and the checks and balances maintained under the Constitution.

While the President can rely on and would generally be wise to heed the advice of the Attorney General, he is by no means required to do so.

Conclusions

I decided to post this rather lengthy rebuttal because I detest seeing constitutional matters misrepresented, regardless of who may do so. Every time false statements are made about the Constitution, all Americans suffer the consequences.

Such claims are all the more grievous when uttered by a Senator on the floor of the U.S. Senate.

In this case, I suspect there's more political bluster than substance to Senator Whitehouse's accusations. In turn, these accusations have apparently been inflated by others into charges that don't even make sense from a constitutional standpoint.

While I suppose the rule of "sausage and law" applies, I think the interests of the people of the United States would be better served by honest criticism founded in law and fact than by misleading and overblown accusations proffered for political expediency.

That's an extremely informative post, thank you Majic. I was always under the impression there was separation of the powers of the Executive and Judicial branches? What you are saying is that the Judicial branch is subservient to the Executive?

Is there a confusion over the terminology of the Senator's statements maybe? Where does the "Department of Justice’s Office of Legal Counsel (OLC)" fit into the system?

I think the confusion comes from the notion that the DOJ is a part of the Judicial Branch of government.

It's not.

Ahhh!

Then I understand why I was confused.

Kudos Majic! You summed up my thoughts beautifully and with such a gift of wordiness!

According to President Bush, the Consitution is nothing but a piece of paper. He is right. The Constitution was suspended in 1933 and has never been reinstated. Other branches of the government have made findings and rulings to make this fact appear "dormant" but the fact remains. Please read my thread U.S. Constitution invalid for nearly 75 years

I think Bush is a puppet of limited virtue and mental faculties who has set the stage and put the final pieces in place for the arrival of a truly sinister new leader of what we still call the USA.

Originally posted by Majic
I think the confusion comes from the notion that the DOJ is a part of the Judicial Branch of government.

It's not.

I guess I was and am confused, I thought the DOJ WAS part of the Judicial Branch!?!

Hi There,

Very informative Majic, erudite and well written. I would like to add some points as veiled questions regarding the range of presidential power. The one primary motivation for the Founding Fathers in providing a written Constitution, was to set a guiding mandate (not a legal mandate, but one of each separate state's inclusiveness) from which was obtained the necessary 'checks' and 'balances' on the various layers of governmental power. The whole idea was to ensure that no one man gained or was able to weild all the collective power of the consenting population.

Let us remind ourselves where authoratorial power comes from. It comes from the consent of the population to both subjugate themselves and comply with tenets (laws) agreed upon by the various assemblies, which each in their way represent a portion of executive power. Without that 'consent' of the people, there can be no nationhood, only a system of feudalism. Anarchy, rebellion and civil war are what ensue when there is no collective consent to a standardised ideology of society. The concept that no one person is above the law, is right and proper, essentially so, but the law must never be held higher than the collective of the population that consents to it. Remember, laws are ideological frameworks only, they are not frameworks to ensnare and enslave, but to always represent the upholding of the freedoms and liberties of the consenting. No population in their right (collective) mind would ever consent to enslaving itself to laws.

If we take the equity of freedom and liberty for all as being the standard to which we agreeably comply, what becomes self-evident is that all laws made are to secure that standard, such laws then, by their reasoned envisioning, must be subjugant to that one ideology. This of course, places a very great responsibility upon the population as a whole, and upon each individual within that population. They are to insure that their freedoms and liberties are never taken from them by any agency external or internal to their society.

America was born out of the fear and fight against tyranny, and in writing the Constitution, the Founding Fathers had in their minds the words of Thomas Paine, when he wrote...

Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamities are heightend by reflecting that we furnish the means by which we suffer.

Thomas Paine (1737 - 1809) "Common Sense"

Now, from my understanding of the political structure of the US, I understand that the federal government shares power with state governments, in that the federal government was born out of the Constitutional ideology, but also that each state government remained authoritative to its state, making its own laws and regulations, in guidance to the written Constitution. Basically, each state represents itself structurally as that of the federal govenment, and that it is the Supreme Court that balances and mediates between them. The essential nexus of democracy in America, therefore, does not lay within government, whether federal or state, but in the Supreme Court? If this is so, therein lay the problem, for the Supreme Court is where the separation of powers is rejoined. For in any dispute between federal and state, the Supreme Court is the ultimate decider? Control this by nefarious ways, and you control America.

The Constitution was suspended in 1933 and has never been reinstated.

Here is a schism between what is considered legal and what is considered traditional. I would suggest that the 'legality' for why the Constitution was suspended, lasted only as long as the cause for its suspension. If the 'cause' is no longer apparent, and has not been so for a certain length of time, the Supreme Court would have no moral justification in establishing the merit of the continuance of the suspension. Other causes that may have appeared over the years after the initial cause cannot qualify for the merit in continuing suspension, as it is necessary to reinstate the Constitution in order to use the other causes against it. In other words, have there been applications to continue the suspension based upon other causes? I would think there hasn't. Logically, the suspension ought now to be null and void, and if that is the case, it opens up a whole new can of worms.

I think what Whitehouse has done is to draw the attention of the American people to caution, to bring into debate the necessary awareness of the nefarious activities of the federal executive, and to what they could lead to. For this, he should be applauded.

Best wishes

Yes, DOJ is part of the executive branch. A cabinet department. en.wikipedia.org...

I never liked the name "Dept of Justice". "Dept of Legal Representation" or something would seem more accurate.

My understanding of executive orders is that they are simply a formal way for the President to declare his interpretation of the law, and what actions are to be taken to enforce it. So the President has no obligation to enforce a previous President's orders.

So I would say opinions 1 and 3 are correct. #2 is horribly incorrect!

On one hand it is nice to have people who were experts in the field going on record to highlight the wrongdoings of the administration. On the other, it is getting kind of old hearing all of these people who USED to hold powerful positions. Where are the people who are currently serving? Why aren't they coming forward? What is this guy going to do about this injustice? He should have a lot more pull than the "Radical Domestic Terrorists" (read: average American) that complain about it, but feel helpless to change it.

It seems like people who used to have some time in the spotlight wanting just a little more attention, but not willing to do anything. Even though, they are the ones who actually have a chance of getting some results.

reply to post by Majic


So the only way to challange a decision is to bring a case before the supreme court? Now in a country full of beauracratic red tape, so much so that it has literally brought people to their deaths....how do you expect this to be a convenient or even available option to most of us americans? What if the issues that need to be brought before the supreme court are so so many that administrations like the current one (not only presidential but local authorities as well) take advantage of the fact that the little man cant do anything about it. What average in debt american will actually take a stand on the NSA wire taping issue? Who has the time, the money and the energy to create a constitutional case on behalf of all US citizens and bring it to the supreme court? NOBODY....and they know that which and they prey upon that weekness to no end. Bush abuses his executive power and that has been made clear in the past 8 years. Its disgusting how we treat each other nowadays....

reply to post by elysiumfire


I agree what you said about how laws are not ment to "enslave" us but unfortunately this is untrue for many local and municipal laws. You see....we arent enslaved because of a law which enacted a curfue or something along those clear lines. Instead, the system is set up to be so complex and intertwined with beauracracy and red tape that one law can plunge the average american into depsair and figurative "enslavement" due to the cascading implications that may come forth after he/she has been sanctioned. All laws regarding speedind, parking or any citation in general are testament to this fact.....the threat of arrest for non payment of a fine? That reminds me of the tax collectors in ancient roman days that the entire populace hated.