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June 27, 2008

"I get to determine what my own powers are"

From a speech by Senator Sheldon Whitehouse about the Bush Whitehouse:

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....

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 “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.

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; we are not some banana republic in which the officials all have to kowtow to the “supreme leader.” Imagine a general counsel to a major U.S. corporation telling his board of directors, “in this company the counsel’s office is bound by the CEO’s legal determinations.” The board ought to throw that lawyer out – it’s malpractice, probably even unethical.

Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- “The United States Department of Justice.” Think of the heroes who have served there, and the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how that all makes you feel.

Then think about this statement:

The Department of Justice is bound by the President’s legal determinations.

If you don’t feel a difference from what you were feeling a moment ago, well, congratulations – there is probably a job for you in the Bush administration. Consider the sad irony that this theory was crafted in that very building, by the George W. Bush Office of Legal Counsel.

In a nutshell, these three Bush administration legal propositions boil down to this:

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.”

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories. I understand political loyalty, trust me, I do. But let us also be loyal to this great institution we serve in the legislative branch of our government. Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic. And let us be loyal to the American people who live each day under our Constitution’s principles and protections.

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Posted by Mike at June 27, 2008 01:21 PM

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