Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Damn, I love me some Sheldon Whitehouse. He, like, actually knows the law. And he, like, is willing to actually read the stuff he is exercising oversight over.

Which is why this speech he gave today is so important (link to speech; here’s a link to video). Apparently, Whitehouse actually read the OLC opinions that justified the warrantless wiretap program and continue to justify the Administration’s wiretap authority today. Then, Whitehouse got the key concepts of some of those opinions declassified. Here’s his description of what he found.

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. [my emphasis]

I noticed Whitehouse sniffing around the question of Executive Orders before. I thought (okay, hoped, really) that he was sniffing around 13292, which governs classification and declassification, including whether the Vice President can unilaterally declassify the identity of a CIA NOC. But it turns out he was sniffing around EO 12333, which governs Intelligence Activities (and though it’s not central to this discussion, here’s an amendment Bush made in 2004 to set up DNI).

Here’s what–according to Whitehouse, who after all ought to know–Bush believes about whether or not he has to follow EO 12333, an Executive Order signed by Saint Reagan.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

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.

“Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.

I’ll put the rest of the excerpt of Whitehouse’s speech below. But for now, I want to discuss this.

Obviously, the implications of this OLC opinion go far beyond the warrantless wiretapping of Americans. While it appears that Whitehouse wasn’t primarily interested in EO 13292, presumably the OLC opinion governs all Executive Orders. So in other words, the President can declassify at will (well, he could do that anyway). Or more importantly, he could authorize his Vice President to refuse to tell us about his classification and declassification guidelines (as Dick did to ISOO–I’m betting this opinion is why AGAG refused to rule on the ISOO/Dick dispute), and he can unilaterally declassify anything and leak it to Judy Miller or some other hack journalist.

But here’s the other key point (and one of the reasons I like the way Whitehouse works). He specifically asked Michael Mukasey about EOs before Mukasey was approved.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. “Of course the President can’t violate his own EOs! He would need to change them first!”

And now the AG is on record as thinking this whole state of affairs stinks.


Here’s Whitehouse’s speech in it’s entirety. And here’s a link to a copy at his website.

We will shortly consider making right the things that are wrong with the so-called Protect America Act, a second-rate piece of legislation passed in a stampede in August at the behest of the Bush Administration. It is worth for a moment considering why making this right is so important.

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.

Our Constitution has as its most elemental provision the separation of governmental powers into three separate branches. When the government feels it necessary to spy on its own citizens, each branch has a role.

The executive branch executes the laws, and conducts surveillance. The legislative branch sets the boundaries that protect Americans from improper government surveillance. The judicial branch oversees whether the government has followed the Constitution and the laws that protect U.S. citizens from violations of their privacy and their civil rights.

It sounds basic, but even an elementary understanding of this balance of powers eludes the Bush administration. So now we have to repair this flawed and shoddy “Protect America Act.”

Why are we in Congress so concerned about this? Why is it so vital that we energetically assert the role of Congress and the Courts when the Bush Administration seeks to spy on Americans?

Because look what the Bush Administration does behind our backs when they think no one is looking.

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.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

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.

“Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.

Here’s number two.

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.

We simply cannot put the authority to wiretap Americans, whenever they step outside America’s boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God’s green earth they may travel. [my emphasis]

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. amazona says:

    Wow, Emtywheel, now we know the answers to some of our questions regarding Whitehouse. He’s been studying all the documents! He doesn’t speak without firm backing of his views in a legal context. This is an incredible speech and I hope we see the video of it soon.

  2. chetnolian says:

    Senator Whitehouse says, “we are not some banana republic in which the officials all have to kowtow to the “supreme leader”" then sets out oh so clearly that in the minds of your leaders oh yes you are!

    To a UK lawyer this is frightening stuff.

    How exactly does it get stopped or are you close to a Reichstag moment in the USA?

    • scribe says:

      As I heard the reports of the second tower being hit on September 11, 2001, all I could think of was:
      “Every tyrant needs his Reichstag fire.”

      We’re long past that moment, sad to say.

  3. merkwurdiglieber says:

    Sheldon Whitehouse is the best I have seen in some long time… and
    he got there with great help from the DFH bloggers, yeah!

  4. looseheadprop says:

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

    This explains that part of waxman’s letter to Mukasey about the precident set by Reno inturnign over docs w/o consulting the WH. This is a consitutional crisis akin to Marbury v. Madison. Which is why PatFitz is being so methodical about it. Crossing the “t” dotting the “i”, the stakes are VERY high

    • emptywheel says:

      I am fairly certain that Waxman, at least, hasn’t read this yet. Whitehouse just had these passages declasssified, and he didn’t have the clearance (as an HPSCI member or HJC member) to read them himself.

      • looseheadprop says:

        Coupla things: Whitehouse may not have had them declassified so he could quote from them, but He could say “lok I’ve been reading the stuff, and here’s what we have to do folks”

        He may well have been quarterbacking alot of these manuevers. Something happened and happened virtually vernight to save the Mukasey nomination–could it be that Mukasey said the rigt things about rule of law (andMarbury v. MAdison) You know, in almost every law school in AMerica, M v. M as the very first case on the very first day. This case establishes the concept or rule of law

        • Peterr says:

          You know, in almost every law school in AMerica, M v. M as the very first case on the very first day. This case establishes the concept or rule of law.

          I’ve never been to law school, but this was the very first case we learned about in my long-ago high school US government class (aka civics).

        • bmaz says:

          I dunno, but I don’t think so, unless it was in one of those “private conversations” Mukasey had with key Senators where he made statements 180 degrees diametrically opposed to his sworn testimony (like Huckleberry Graham described regarding torture). Mukasey seemed fairly on board with the Bush shenanigans to me….

          I would like Pelosi, Hoyer and Emmanuel to answer these questions: “Despite all of the presumptively high criminal acts and desecration of the Constitution, you have repeatedly stated that “impeachment is off the table”; what, in your opinion, could or would be a sufficient threshold of conduct that impeachment should be considered? Is there anything the Bush Administration could do that would cause you to consider the Constitutional protection of impeachment, or is that clause simply inoperative for some reason as to this specific administration?”

          • emptywheel says:

            I think Mukasey came down kind of in the middle. He made it clear that if there’s a criminal investigation of USA Purge, it’ll be done in DOJ (though I think Libby’s appeal may affect how that would happen, if it were to be done in DOJ). Mukasey made it crystal clear that he doesn’t believe DOJ can hold Congress in contempt. By the same token, Mukasey made several things quite clear, one of them that Bush can’t simply decide he doesn’t have to follow his own EOs.

            • bmaz says:

              Well, I see that, but isn’t that kind of a big circle jerk? Mukasey buys into the UE and that Bush can order Administration officials to not cooperate with, and produce evidence to, Congress and that Congress has no viable power to enforce contempt as a response. He then states that any investigation is proper to be handled by the DOJ under Bush’s direct control. I am not saying that Mukasey may not do the right thing, just that you cannot determine that from his confirmation testimony and written submissions to the record.

              • looseheadprop says:

                Which s why I think we are comming to our own MArbury V. MAdison moment.

                What’s going to be? Rule of law or no rule of law?

                We are about to see if Schumer’s gamble pays off. I know most folks around here don’t like Chuck, but will all please pray (or whatever the non praying members do) that just this once, things pan out for him? Uh, us?

              • emptywheel says:

                I don’t think he does believe in the UE.

                His rationale for not referring the contempt is that DOJ has already said Harriet and Turdblossom would not be at risk for contempt if they stiffed the Committees. So it’s a legal issue, not a philosophical one.

                As to his refusal to appoint a Special Prosecutor, I do think that was one of the three or for concessions he made to BushCo. I think he believes he can take care of the investigation. Though–pending Libby’s appeal–that still means they can appoint a USA to investigate internally.

                • bmaz says:

                  Mukasey may not have evidenced agreement with every extended tentacle of the UE, but he evinced pretty substantial acceptance if you ask me. And as to that DOJ determination that Miers and Bolten (you said Rove, but I think it was Bolten) are not in contempt; that is far more than a “legal” position (I would argue it is effectively an illegal position), it is philosophical because it is predicated on them not being in contempt because Bush ordered their conduct. This is a question of combined law and fact for the court, not the self interested and conflicted executive.

        • merkwurdiglieber says:

          Take a look at Sheldon’s floor speech announcing his no vote on
          Mukasey… I doubt they are in some concert other than Mukasey yielding
          to some respect for law at this critical moment.

  5. perris says:

    man, these declarations are BRUTAL!

    3) the doj is bound by whatever the president says?…holy CRAP

    2) the PRESIDENT decides if what HE HIMSELF DID is illegal?…HOLY CRAP

    1) if there is a an executive order and the president wants to change it or ignore it, he doesn’t have to inform anyone

    why the hell issue the executive order in the first place?

    HOLY CRAP

    man, this is some really sick stuff, no wonder they wanted to keep these from “opinions” from everyone

  6. magster says:

    This is why so-called moderate or liberal Republicans need to be contested in elections. Lincoln Chaffee can’t hold a candle to Whitehouse.

    • Leen says:

      He may not be able to hold a candle to Whitehouse. But he sure can hold a candle to Schumer and Feinstein.

      Lincoln Chaffee had smoke coming out of his ears during the John Bolton nomination hearings. He was visibly pissed off and asked hard driving quesions. I thought he was going to join the Democratic Senators Kennedy, Kerry, Biden and Dodd when it looked like they were going to collectively jump John Boltons ass when they were hammering him about the not yet released NSA intercepts. Lincoln Chaffee was holding more than a candle that day it looked more like a blowtorch.

    • JeffinCA says:

      This is why so-called moderate or liberal Republicans need to be contested in elections. Lincoln Chaffee can’t hold a candle to Whitehouse.

      That’s exactly what I was thinking when I read this!

    • emptywheel says:

      No way to tell. They came in the batch that SSCI finally got before they passed their version of FISA, which almost certainly included Yoo opinions. But there are probably Steven Marbury opinions in there too–he’s as bad as Yoo, I think. And I’m sure they include Goldsmith opinions, though I hope he wouldn’t support any of this BS.

    • bmaz says:

      I’ll hazard a guess the answer to that is yes, and that Bybee and Marbury get an assist and that Addington is the ghost author that did the lionshare of the framing and posturing.

    • BlueStateRedHead says:

      Destined by his name, perhaps. But aren’t we better off with a senator who can set a standard for others. Also it is not clear that the next Pres. is going to have a VP who does anything but go to funerals.

  7. Rayne says:

    Jeebus. How do we stop them, without them monitoring every move we take in advance?

    What’s to stop them from pulling a Musharraf on us?

    • JohnForde says:

      They’ve been angling for it for years – the ‘coffin corner’. Don’t nazify too fast, don’t nazify too slow. But they have failed. The JCOS push back saved the country. This week is the tipping point.

      And now – On to the trials!

    • TheraP says:

      What’s to stop them from pulling a Musharraf on us?
      reply

      I think we need to be fully prepared to seek assistance from other nations. Because, should that happen, it’s not just We the People who would be hostage, but the whole world.

      Coalition Against bush? I bet you gather one!

      As I look at everything happening just this month, to me it looks like Hoover Dam set to blow.

      • Quebecois says:

        What’s to stop them from pulling a Musharraf on us?
        reply

        I think we need to be fully prepared to seek assistance from other nations

        Harper would be on his knees, thanking god. My prime minister would never get involved, too busy tending to those scabby knee of his.

        If the democratic party wins the next election, that’s if there is one, Whitehouse for AG.

  8. TheraP says:

    Whitehouse…. I love this man!

    The breadth of the takeover here is breathtaking…. not that we didn’t suspect it. But to have the proof positive. Especially in the hands and legal mind and articulate voice of Whitehouse.

    He is my hero! Boy would I love to see this man as Attorney General!

      • TheraP says:

        That is the problem. Ok. Can we just clone Whitehouse and have him in the three branches of govt? We need him in the Senate. Yes. And we need such a mind at the Supreme Court. And also as AG.

        Thank goodness someone is standing up for the Constitution. That’s what I’ve been wanting all along… people ready to even die a political death… on behalf of the Constitution. That, to me, is the meaning of the oath they take.

    • elef says:

      He is my hero! Boy would I love to see this man as Attorney General!

      I disagree. There are not enough people like Whitehouse in Congress so let’s keep him there. How about Emptywheel as AG?

  9. radiofreewill says:

    Spread this article far and wide! Everyone that can, please digg this!

    This Statement of Bush-the-UE’s Above-the-Law-ness Powers points right at the smoking gun:

    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.”

    These three strikes, when even one of them alone would do, should be enough to bring down Corrupt and Arrogant BushCo!

  10. MadDog says:

    Prima facie stuff for impeachment, but since all Congressional Repugs, and particularly Senate Repugs, have chosen to remain in the bunker with Der Fueher until the bitter end, we’ll instead have to depend on a Democratic Administration getting elected in 2008, and one that commits to prosecution of these evildoers.

  11. Glorfindel says:

    Well, somebody in this administration is competent enough to keep injecting this poison into our system of government. Evil, corrosive, and machiavellian legal trip lines planted everywhere. Thanks be for Whitehouse, anyway, for exposing it.

  12. Leen says:

    Whitehouse reading the “stuff” he is exercising over sight over. Damn refreshing.

    EW you may be interested in what Larry Johnson is saying about the “torture tapes”
    http://noquarterusa.net/blog/2…..ment-76275
    “Then there is the question of tradecraft. Did the CIA officers participating in the interrogation/torture sessions allow themselves to be filmed so that they could be easily identified? I am skeptical. When the truth comes out I think we are likely to discover the people doing the questioning were contractors, not undercover Agency officers.”

  13. BayStateLibrul says:

    Thanks for this great post.

    It takes a Whitehouse to crush a Whitehouse?
    He gets my vote for Chairman, let’s replace Jay…
    Whitehouse needs to appear on KO

  14. Peterr says:

    Warning: pulling-it-out-of-my-hat speculation ahead . . .

    From what I’ve seen of Whitehouse in action, I wouldn’t be surprised if he didn’t (a) finish this speech, return to his office, fax the speech over to Mukasey, then call him on the phone and him to chat with him about it; or (b) chat with him first, then head over to give the speech on the Senate floor.

    Actually, I’d bet on (b) — it’s possible that Mukasey was part of the discussions in the course of getting these excerpts declassified.

    And if we’re really lucky, Mukasey might even be smiling at having a little support to help him stand up to the firm of Cheney, Addington, and Associates.

    • looseheadprop says:

      They could not have been declassified w/o Mukasey knwoing about it in advance. he is part of he process.

  15. Leen says:

    Is this where we start hearing more about Impeachment from those that matter? John Dean’s first pick ( I was able to ask him this question when he visited FDL) is David Addington.

  16. selise says:

    damn. marcy, if you’re referring whitehouse’s speech on the senate floor today (at about 10:30 am), i could have had a youtube of it for you by now – except that the new c-span archives are having technical difficulties this week (i’ve already contacted them about a couple of times).

  17. BayStateLibrul says:

    Is Mukasey on our side…
    We will soon learn, but based on all the previous malarkey,
    what are the odds?

    • looseheadprop says:

      It’s not question of “on our side” I doubt he thinks about little old us at all.

      Te question is, was Mukasey recruited by Schumer tot ake onthe mission of going to DOJ to clean up the mess? And did he agree to to do that? And if so, will he honor that agreement?

      Clearly, Waxman thinks so and is calling on him to follow the Reno precident of the AG deciding what gets turned over–so that would mean ignoring the “DOJ is bound by the prsident’s legal determinations” theory.

      Don’t forget, the Office of Legal COunsel, reports to the AG, so theoretically, the AG can over rule OLC.

      I know it gets a little circular, but OLC says president can over rule AG when it comes to legal determinations, only AG can over rule OLC.

      It’s kinda rock/paper/scissors

      • BayStateLibrul says:

        Thanks. I understand, but we need an “Eliot Richardson” moment.
        You gotta admit they are stalling…
        I’m glad you still have faith in the system, but I believe we are
        on borrowed time.

      • Peterr says:

        Even if Whitehouse didn’t coorodinate with Mukasey, he’s painted him into a very tight box, forcing him to choose between being (a) a BushCo toady or (b)Attorney General of the United States of America. I’m idealistic enough to think he’ll choose (b).

        With all the hassles that BushCo went to in order to get Mukasey confirmed, a Mukasey threat to return to a life of retirement would carry a lot of weight. “If you overrule my judgment on this, that’s your prerogative as president. If that’s what you decide to do, I’ll pack up my office today, and wave good bye to the press corps on the way out the door. And good luck with working with Congress on anything else over the next 13 months.”

        • emptywheel says:

          I think you’re right, Peterr–which is why I think it so important that Whitehouse got him on the record on EOs before he was confirmed. He picked a seemingly (but not actually) innocuous item to draw a line in the sand, such that if Mukasey doesn’t cooperate, it’ll be easy to illustrate his hypocrisy. And everything else being equal, I think Mukasey is very intent on not coming out of this experience looking like he sacrificed principle.

  18. MadDog says:

    EW, just a wee bit OT, but Marty Lederman at the Balkinization blog has a fine h/t to you and your Torture timeline post.

    Just thought this merited a round of applause here from all who stand in shock and awe of your work!

    Huzzah for Emptywheel!!! Hip, hip, hooray!

  19. Rayne says:

    CRAP. selise, was that speech read into the Senate’s records???

    TheraP, that’s a massive understatement there, the Hoover Dam ready to blow. Just read the entire database of points that EW collected, along with the other points that have been added from a couple of media outlets, and you can see they have been playing a massive game of chess, one move after another, escalating the size of the move all along the board.

    How does one get BIGGER than than “accidentally” shipping nukes across the country?? I have been on tenterhooks since I heard about that, in concert with the incident in the Syrian desert. What does their next move look like as they are now backing into a corner?

    • selise says:

      was that speech read into the Senate’s records???

      i think so. it’s listed at 14min 30 which seems about right. and i called his office to confirm – they did confirm it was that speech, but i’m not sure how knowledgeable the person was i spoke with… i only called whitehouse’s office after calling c-span -again – to ask when their archive would be back to normal (it’s been running on about a 1 hour delay – but this week it’s been seriously fucked up). the person i spoke to at whitehouse’s office said she didn’t know if there were any plans to post the video on line, so i suggested it.

      marcy, have you asked capnews (or equivalent) to put up a youtube? i don’t want to bother asking them if you already have.

        • selise says:

          emailed dan and copied you on it. asked him to let you know if he can get a clip up. he’s the only person i know to ask who covers the house and senate floor (and some committee hearings).

    • TheraP says:

      Glad to hear we’re viewing this in a similar fashion. Not worried about the analogy… but that’s about the biggest man-made thing I could think of that I’ve personally seen (holding back a huge waterfall)… and the thought of all that (as if built by these crooks) collapsing on top of them.

      As for the game of chess, exactly, as a description of “our side.”

      My comment was meant more as a sense of the turning of the tide. And I take it you’re in agreement that we’re on the crest of a wave here.

  20. MadDog says:

    EW,

    I hope you don’t mind, but I did a couple of excerpted referrals of this post over at Glenn Greenwald’s and Marty Lederman’s places. Just making sure the word gets spread around.

  21. WilliamOckham says:

    The French have a word for what those OLC opinions represent:
    coup d’etat – the sudden overthrow of a government, often through illegal means by a part of the state establishment

    Those three propositions outlined by Whitehouse completely subvert our system of government. They say, in effect, that the President can make any law he pleases and violate them with impunity.

  22. JohnForde says:

    Totally intuition.
    But I think Mukasey is on the side of the light.
    During his confirmation he refused to say Waterboarding was torture. It seemed he wanted to declare WB torture, But it was less important to say it and more important to get confirmed so he could fight it.

  23. Rayne says:

    Sorry, lhp, phone call here, EW got you.

    Co-equal branch of government better take the same powers and kick some ass in a freaking hurry, before more evidence goes up in smoke.

    Think I need to have a chat with some technology peeps about whether they pulled an AT&T blackroom type move on those 10M emails now missing…bet you there’s torture chatter in there, along with Iran stuff.

  24. [email protected] says:

    MadDog at 24:
    Our chance of getting any other administration is slim to none at this point. All that is required is a true “Reichstag” moment ala Tom Clancy’s “Debt of Honor” in which the airplane does not crash in a field in Pennsylvania. There would be one difference; the president and vice president would not be present for the slaughter but would be present for the permanent administration to follow.
    A much more detailed investigation of administration actions around such a scenario is required; 9/11 was life imitating art except for the realities of some ballsy air passengers. Is that why we must now be completely disarmed to fly?

  25. BayStateLibrul says:

    Meanwhile, while important business takes place in the Senate, Oprah
    and Obama are meeting and greeting.
    What fucking irony…

  26. Waccamaw says:

    ew –

    OMG! I caught some portion of this live on C-Span and just sat there with mouth hanging open. Tried to e-mail his office to see if transcript available but not sure it went thru’.

    Pardon my slowness but am not quite following sequence of his remarks. Would it be possible for you to add the URL for text from beginning straight thru’ to end? Vid is useless for me due to dial-up.

    Thanks!

    • emptywheel says:

      There’s not a link yet–his office is trying to get it up.

      BUt the entire speech is in here–Just take the excerpts after the line and sandwich the two exceprts In put in there, and there’s your speech in its entirety.

  27. Helen says:

    My favorite one is the third one. The Department of Justice issues a legal opinion that they don’t have the authority to issue legal opinions.

  28. LS says:

    “Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic.” (my bold)…Whitehouse knows what’s goin’ down.

    The E.O. is horrifying to read, but I am not one bit surprised. It has been my intuition also, that all of what we have experienced, beginning prior to and including 9/11, and all that 9/11 has justified for these war criminals has been carefully orchestrated by design.

    I hope it’s not too late. There is no conspiracy theory, there is only conspiracy by these people who have hijacked our country.

    Also, in that E.O., it seems to me that there’s a lot of room for money laundering for their heinous programs. My only question is, why did they even bother to amend the previous E.O….why? To make it seem legal to people like Hayden and McConnell, so they would participate without asking questions, thinking it was/is all legal…?

    • emptywheel says:

      LS

      Understand, the EO I linked to was signed by Saint Ronnie and no doubt was designed to do the things you say–to push back somewhat from the restrictions taht Carter accepted in 1978 (which is what EO this one replaced). So yes, it authorizes a bunch of horrid stuff we know CIA to have been doing, like laundering money and so on. Remember, Ronnie signed this just as they were contemplating Iran-Contra.

      The only reason I linked to Bush’s revision of the original is to show that Bush has himself endorsed the value of revising EOs when they change. The content of Bush’s revision is fairly milquetoast–it just changes the structure of the Intelligence Community to put the DNI in there. So I linked to the revision not so much because it shows what Bush found objectionable about an already lenient EO, but to show that, on some items, he does got through the motions.

      • LS says:

        I do understand that, thanks. I think the fact that he bothers to go through any motions at all is bizarre, considering he doesn’t think he has to abide by anything at all, so why…that is what is puzzling to me, it is as if he/they make an effort to pretend they are abiding by laws, etc., and at the same time declaring they don’t have to..smoke and mirrors…but that is just me.

  29. Leen says:

    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.”

    So is this “nutshell” more of David Addington’s work”

    And if it is determined that they need to wiretap “spy” on an American citizen that they believe is operating in behalf of a foreign country what is the correct procedure? And if they use this correct procedure is it more than likely that that individual or individuals would be alerted to what is taking place?

    • BobbyG says:

      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.”

      We’ve known this for a long time now. He’ll just keep on, unless the Supremes tell him otherwise. Congress won’t do much expect make a little noise.

    • perris says:

      And if it is determined that they need to wiretap “spy” on an American citizen that they believe is operating in behalf of a foreign country what is the correct procedure? And if they use this correct procedure is it more than likely that that individual or individuals would be alerted to what is taking place?

      let me re word this to what is really happening

      “And if it is determined that want to steal from on an an American citizen they can make believe they are not stealing and whatever they want to claim is the correct procedure is”

      that’s what is really going on

    • Waccamaw says:

      {{{{smooches}}}}

      Wizard! Was just gettin’ ready to start muckin’ around with cut & paste on a copy.

      Superb post, btw!

  30. WilliamOckham says:

    I wonder if we’ll get any comment from anyone in the judicial branch. Will anybody think to ask? I’d love to hear what the Chief Justice of the Supreme Court thinks about this.

  31. BayStateLibrul says:

    Dana Peroxide says the Prez had no knowledge of the CIA’s Destruction
    Demolition (I wonder if they burned it and put into an urn) Derby…
    Will cooperate with Attorney General if he opens an investigation (yeah right)

    • bobschacht says:

      “EW, as explosive as the declassified stuff is, what are they still hiding?”

      Well, I’m not EW, but I read her post this morning…

      Anyway, there are things we know that we know, and things that we know we don’t know, and then there’s things we don’t know that we don’t know.

      I’ll take door 3 for $500, please.

      Bob in HI

  32. LS says:

    E.O. 13355: I think this goes way beyond spying…it could also include any form of torture, murder, or anything else W tells them to do:

    “The Director of Central Intelligence (Director) shall perform the functions set forth in this order to ensure an enhanced joint, unified national intelligence effort to protect the national security of the United States. Such functions shall be in addition to those assigned to the Director by law, Executive Order, or Presidential directive.”

    • perris says:

      E.O. 13355: I think this goes way beyond spying…it could also include any form of torture, murder, or anything else W tells them to do:

      of COURSE it goes beyond spying, he is saying that whatever he says he can do becomes the law

      this is REALLY REALLY BAD

    • emptywheel says:

      Right. And it’s not just this EO, it’s every EO. So we basically see, i front of us, the completely “legal” justification for outing Valerie Plame.

      • merkwurdiglieber says:

        The tactic of outing a “problem” CIA person is not new… check out
        pp.216-217 in Weiner’s Legacy Of Ashes. Ambassador Lodge in Saigon 1963
        outed the CIA station chief in the NYT to facilitate the Diem coup.

        • emptywheel says:

          Oh, I know the practice goes back a ways. What is new is that, by all appearances, the Vice President ordered his aide to out a CIA spy, and not for any pseudo-grand reason like world domination, but just because her husband had pissed him off.

          • merkwurdiglieber says:

            I am sure you know things about this that I don’t, I bought your book,
            but getting Brewster-Jennings off the WMD trail does carry world domination
            implications as well as the sheer piss-off you mention… I’m jus sayin’.

    • perris says:

      E.O. 13355: I think this goes way beyond spying…it could also include any form of torture, murder, or anything else W tells them to do:

      and THAT’S the way this NEEDS to be discussed by all demcrats, they need to get on the TEEvee and say;

      “the president claims that if he says it’s ok for him to murder you or your wife that makes it ok

      the president says that if he says it’s ok to rape your daughter that means it’s the law

      the president says if he wants to blow up new york with a nuclear bomb then the the law says he can do it”

      MAN, THIS IS REALLY REALLY BAD

  33. perris says:

    does anyone remember THIS?;

    “if the president does it that means it is NOT illegal”

    man oh man, this is really really bad

  34. LS says:

    Hmmm….and I wonder once again about Scalia’s hunting trip with Shooter…I wish he had some tangible dirt on him. He’s one of the lynch pins ultimately.

    • BobbyG says:

      Useful to remember that Scalia’s attitude is “Life is unfair, Get Over It.” He says the role of the Supreme Court is not to mete out “justice” in the moral sense or to do anything otherwise having national utilitarian merit, just to rule on what is “constitutional” via his “textualism” lense.

      Of course, his written decision track record is full of contradictions. Like he cares.

  35. perris says:

    sorry guys, I am running around with my head in my hands…this is unbelieveable, this is incredible, this is depraved, perverse, perverted, debased…let me get my friggin thesaurus, I CAN’T FIND THE RIGHT WORD FOR HOW REALLY REALLY BAD THIS IS

    • Leen says:

      I don’t trust Sandra Day O’Connor she was part of the Supreme Court Judicial Coup that selected these thugs in the White House.

      She should be on her knees praying for forgiveness.

  36. radiofreewill says:

    Leen – Do you see the Bush Statue tottering?

    His ‘power-grab and hide’ strategy is being exposed for what it is – a cloak behind which to operate as a de facto King, complete with immunity from Legislative Oversight and Judicial Review – and free to conduct Our Government as a Loyalty-driven Criminal Enterprise, Above the Rule of Law.

    Bush has given All Neocons and Goopers, everywhere, the name of ‘Deceitful Destroyers’ in honor of their Slavish Bootlicking Service to his Hateful Ideology.

    How Proud are they now?

  37. BlueStateRedHead says:

    EW,

    Last nite in an EW way I totaled :

    –the number of individuals who appeared before Congress and skirted or committed contempt or confessed to bad acts and false oaths (whoever she was who took an oath to the president) and had not been indicted

    –those who were/are under investigation, but are still in place

    –those who lost their jobs because of corruption abuse of law not included in the first

    –individuals said to be under suspicion, like Delay and the wives club

    I compared them to the number of congress related individuals, members or staff or corrupters who are in prison pr headed that way as a result of DOJ investigations. I weighted Mr. K as two individuals given the protection that had to be circumvented to get him into a federal facility, to quote Judge B. Mr. BlueState asked if I should not also include the hospital bed as one more.

    This was based on my memory, so I won’t cite my total here. You or Josh could do better and I hope you will.

    You can imagine the disparity in the numbers.

    And then I got so depressed that I went to bed.

    All this to say how welcome Sen. Whitehouse’s work and the implications you see in it are.
    Smiling in the BlueState again.

    Preview does not work, so hope I got all the typos.

    • BlueStateRedHead says:

      as per 107. I was counting during dinner to prevent falling asleep at the table. Counting sheep during dinner would have had the opposite effect.

  38. radiofreewill says:

    perris – not to worry! Not even Our Supreme Court is going to ‘bless’ Bush’s UE Rationale – it’s total fantasy!

    That’s why he’s been hiding it, very deceptively, for six years.

    Now that it’s out in the open – Bush is No Different than the Wizard of Oz, and a damn long way from being an honorable American, too!

    Stretch your feet out on the couch – the Goopers are going to shred him for US.

    • perris says:

      perris – not to worry! Not even Our Supreme Court is going to ‘bless’ Bush’s UE Rationale – it’s total fantasy!

      sorry, but they will

      both roberts and alito subscribe to the unitary executive doctrine and the other “concervatives” will go along with the coup

      you are not being realistic if you think the supreme court won’t endorse these “opinions”

      • radiofreewill says:

        perris – here are Bush’s UE Principle’s re-stated:

        – Do as I say, Not as I Do.
        – What I say Goes.
        – No back-talk.

        The Supreme Court would, in effect, be approving the totalitarian ‘Strict Daddy Code’ Above the Constitutional Rule of Law – making Bush a King.

        I just don’t see it.

        • perris says:

          alito and roberts we know subscribe to the unitary executive and after we see what they’ve already done on behalf of this president

          you can COUNT on them deciding on behalf of this president…count on it

        • klynn says:

          Perris,

          Mentioned to my spouse that I had an odd dream last night of a extremely large silent protest staged around the Mall in D.C. and everyone was holding up a copy of the Constitution… Hmmm

          The blogesphere would be smart to gather up the most trusted legal minds and get TONS of commentary out there on this to PUSH the MSM.

          • perris says:

            we need to hold ups signs that say things like THIS;

            “THE PRESIDENT CLAIMS HE HAS THE RIGHT TO RAPE YOUR WIFE AND CHILD UNDER PRESIDENTIAL POWERS”

            WE need to SHOCK Americans into WAKING THE FRIG UP and we CANNOT use “nice” terms like ‘violates the constitution” or “invade our privacy”

            we need to use the proper frasing like

            “HE CLAIMS HE CAN STEAL FROM ME UNDER THE LAW”

            ‘HE CLAIMS HE CAN RAPE MY WIFE UNDER THE LAW”

            “HE CLAIMS HE CAN RAPE MY SON UNDER THE LAW”

            becuase that IS what he is claiming

          • BlueStateRedHead says:

            Just checked TalkLeft and DKos. no word on it there as yet. wrote to Jerrilyn.
            posted it on dkos frontpage as commment, can’t diarize now.

            Please some kossack doing a breaking diary.

  39. sojourner says:

    FWIW, I just sent an email to the Executive Editor of our local newspaper to draw his attention to this…

    With this information, there is NO excuse for allowing this to continue.

  40. BlueStateRedHead says:

    Lunch break over, deadline looms.

    So I raise an imaginary glass:

    EW you are our Sen. Whitehouse.

    Senator Whitehouse, you are our EW.

    Commenters, you are the staffers that Sen. Whitehouse deserves.

    excluding my humble self, naturally.

  41. TobyWollin says:

    Can anyone imagine what Keith Olberman is going to do with this? Hey, Keith, we know you use this as your reading room….get crackin’!

  42. wavpeac says:

    Forgive me if I am wrong here, but I believe this is the exact argument that the conservative Feingold made on Moyer’s show about impeachment. In that program the two constitutional scholars made it clear that we have a civic duty to impeach because this president has circumvented the most fundamental concept of our constitution. They said that the issue of executive power was the weak spot and the most urgent reason for impeachment. We are indeed in a constitutional crises.

    Whitehouse has now made this discussion a matter of public record. Now even if Mukasey wants to play “bush league” instead of “American league” he will have to make the deliberate decision to go down in history with some of the greatest legal minds of our time watching his every move. He will not be able to perform a slight of hand magic trick. He will have to make this decision for all the world to see, and he will have to justify it to every one in light of his senate confirmation testimony. There is no better way or firm way that I can think of, for this to go down, if we have any hope of saving our constitution.

    Now I am going to do a little wishful thinking. Is is possible that the policy of having impeachment off the table was to decrease the defensiveness of this administration. Was it to give them a false sense of security and power? I doubt it, but I would like to wish that there was some bigger strategy to all of this. In a way it makes sense as to why Fitz might have been so cautious and why impeachment was doomed to fail unless we could challenge this legal trickery.

    On second thought…Nah…thinking of Biden’s newest statements…no, there was no big strategy by the dems… Well thank goodness for Whitehouse…and big thanks to E.W for putting it all together and bringing us some light in the dark days of winter.

    Wow!! I have not been this hopeful about saving our constitution in a long time.

    wavpeac…formerly known as “katie Jensen”

  43. Waccamaw says:

    LS –

    “Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic.” (my bold)…Whitehouse knows what’s goin’ down.

    I caught that part of his speech live and, for a truth, he *did* say it in “bold”.

  44. IrishJIm says:

    It appears that Yoo’s and Addington’s only solution to facilitate the “War on Terror” was to destroy the US Constitution and install a dictator to “protect” us from the bad islamo-fascists. Does that sum up what I am reading?

    • TheraP says:

      To me the summary is more like this:

      1. I, the kid, am in charge – like it or lump it.

      2. I can do whatever I want – no permission needed.

      3. Local sheriff – works for me!

      • LS says:

        Yeah….and “Catch me if you can”…wink, wink, wink, oh yeah…that would be the terrorists’ position…

  45. Smgumby says:

    Anyone who supports the Bush administration after hearing that speech by Whitehouse does not have a patriotic bone in their body. This is where they decide if this is still America. And if this is ignored, or excused… …then I think it is probably too late.

    • klynn says:

      And to think he says he’s trying to build a democracy in Iraq. Goodness, if he’s the tutor no wonder there is failure…

    • BayStateLibrul says:

      “Anyone who supports the Bush administration after hearing that speech by Whitehouse does not have a patriotic bone in their body. This is where they decide if this is still America. And if this is ignored, or excused… …then I think it is probably too late.”

      But what if they wear an American flag on their fucking lapel?

  46. LS says:

    Not a peep out of Nancy Pearl Clutcher, of course.

    As long as there is a Whitehouse in the Congress, there is hope. The question is, where to go from here???

    What is subversion of the Constitution? Isn’t that what this actually is?

    What to do, and who best to do it?

  47. Stephen Parrish says:

    Toby @ 10:51 am –

    Did you watch his special comment last evening? If so, what did you think of it?

    Peterr @ 10:43 am –

    Do you think that counting sheep is “shear” delight?

    • TobyWollin says:

      I read the live blogs here on Keith’s comment from last night. My problem is that although KO’s “special comments” are great for morale building out here in West Blogistan, the big problem is that for all the smoke and fire, BUSH AND CHENEY DO NOT CARE.
      and now, after Sen. Whitehouse’s speech, we know WHY. They don’t have to care what anyone thinks or how outraged we all are. The entire f*****kin country could be out there waving bloody flags and the Constitution on the Mall and threatening to tear down the fence in front of the Whitehouse and it would not matter one iota to them because THEY ARE THE LAW AND THE LAW IS THEM.
      So, I get a mite cynical about Keith’s “special comments” – the days when it really stings when one man calls another one a coward and a liar are long gone with Bush and Cheney. To paraphrase Tigger, “Lying is what they do best.”

  48. klynn says:

    Sorry folks, I am having problems with posting. I only hit summit comment once. Not sure what is causing the multiple entries.

  49. LS says:

    ECahn was right about the flood gates opening. I was mad about the NIE and the CIA stuff, but this definitely tops it all, so far….

    For Goddess’s sake, begin Impeachment hearings…at least they can’t claim executive privilege or pardon anybody. We have an attempted Coup D’Etat in progress…Do something, somebody!!

  50. billinturkey says:

    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.

    This looks like its saying that *anything* the president deems to be a lawful exercise of Artıcle 2 power ıs a lawful exercıse of A2 power.

    Is that the case? Or are there some things that couldn’t conceivably count as an exercise of A2 power? Help me out, lawyers

  51. billinturkey says:

    On top of which – surely this is garbage. Isn’t the judicial branch who gets to interpret the constitution? How could anyone take a legal opinion like this seriously.

    IANAL – I’d really like to know how this one could even look like a plausible piece of legal reasoning.

  52. LS says:

    Every single progressive blog should be running Whitehouse’s speech as their top story…every post all over the blogosphere…like “V”.

  53. radiofreewill says:

    This is like standing just to the side of a small snow fissure just now giving way at the top of a glacial range.

    We’ve got the best seats in the house!

    • Tithonia says:

      From your keyboard to God’s or Goddess’s(sp?), or divine or non-divine entity of your choice’s ears

  54. BayStateLibrul says:

    Call Reid and tell ‘em to replace Jay Rock with Whitehouse on the Intelligence Committee
    Jay is missing in action

  55. BillE says:

    The Dem leadership is not willing to do anything that isn’t requested by the DLC and the ridiculous strategists. And, they don’t want their own transgressions aired. Our side of the village is equally complicit in this mess. It will take a lot of new blood like Sheldon Whitehouse to make a difference.

    The other thing is the TSP has already collected enough blackmail material to for the cabal to be certain some votes will always go its way. Can you say DiFi?

    Unless the people of this country get this rubbed in their face, like teaching a dog not to poop, by the media and any other communciations medium ( word of mouth? ) it will just get lost in the drone of an otherwise unpollular and tuned out administration.

    Remember when Arnold kicks Richard Dawson’s ass at the end of Running Man? We need something like that to shake the masses awake.

  56. billinturkey says:

    Yes, but I’d still like to know:

    1) Does the article 2 claim really mean what it seems to (I can see what it seems to say). I’m prepared to believe it does; but I know its easy for non-lawyers to go astray on this kind of thing.

    2) Why this did’t just provoke howls of derision from anyone with a legal background that heard about it.

    (Or maybe it did?)

    • LS says:

      It always hits the blogs first and takes a while to trickle up…it will trickle up though…usually takes about 2 days for some reason.

    • merkwurdiglieber says:

      I remember mentioning something about an event being unconstitutional
      to a local lawyer, old boy type, and he laughed in my face… con law is
      a rare entree’ in this constitutional republic. The weekend chat shows
      were taped while this speech was given in snowy, deserted DC… it will
      take a tsunami to get it picked up by MSM.

  57. WilliamOckham says:

    [I sent this message through the Senator’s contact page. I would encourage folks to send him messages of support. Reward good behavior!]

    Senator Whitehouse,

    I’m not one of your constituents, but I am an American citizen who wants to thank you for your speech today about wiretapping and the OLC opinions. More importantly, I want to thank you for standing up for our Constitution and the rule of law. Thank you for taking the time to examine these documents, understand their true nature, and get the concepts declassified.

    Please continue to speak out about this vital issue. This is a struggle that America can’t afford to lose. I believe, as did the founders of our country, that no one person can be trusted with unlimited power. No matter who wins the next Presidential election, we need Congress to assert its institutional role. On some days, it seems there are precious few in Congress willing to do that. Today, you’ve done exemplary work. I hope and pray that your colleagues will understand that (although I have little hope for my own representatives).

    I’m just a computer geek from suburban Houston, but if there is any way I can help, I am willing.

    Thanks again.

  58. BobbyG says:

    Article. II.

    Section. 1.

    The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

    Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

    The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then The House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

    The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

    No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

    In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

    The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

    Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–”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.”

    Section. 2.

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

    Section. 3.

    He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

    Section. 4.

    The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    Article III.

    Section. 1.

    The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

    Section. 2.

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; –to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; –between Citizens of different States;

    –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    Section. 3.

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

  59. perris says:

    think progress is breaking something right now that demonstrates the true patriots and JUST WHY the nie was released even though the president and vice president tried their best to deny what it said;

    CIA analysts willing to ‘go to jail’ to ensure NIE’s release. Retired Col. W. Patrick Lang, a former official in the Defense Intelligence Agency, reveals that senior CIA analysts pushed for the NIE’s key judgments on Iran to be released, threatening to speak to the media if they weren’t:

  60. Hugh says:

    I was off writing an addition to my scandals list based on this. The new entry reads like this:

    47. Unilateral (aka Unitary) Executive doctrine: the brainchild of John Yoo and David Addington which seeks to establish a legal framework through misreading the Constitution for a Presidential dictatorship
    On December 7, 2007, Senator Sheldon Whitehouse (D-RI) released parts of Office of Legal Counsel (OLC) opinions that he got declassified concerning Bush’s warrantless wiretapping programs:

    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.

    What this says is that the President under his Article II powers as Commander in Chief can do whatever he wants and that he is the sole arbiter of whether what he does is legal. This echoes Richard Nixon famous dictum: “Well, when the President does it that means it is not illegal.” And we saw how well that turned out.

    • TheraP says:

      oh, you’re that Hugh! I have you bookmarked! Have passed that link along at times. Thanks!

      William Ockham: Thanks for the link. Here’s what I wrote:

      Senator Whitehouse:

      You are my hero! I cannot begin to say how thankful I am for the speech you made today (12/7/07).

      For a long time now I have been waiting for someone to stand up and say clearly that allegiance to the Constitution is the job of a Senator/Representative (public servant). And that if the Constitution is threatened, it is their duty to carry out the oath of office to “preserve, protect, and defend” it – even to the point of risking political “death.”

      Please, know that your “stand” is being heard. And that We the People will stand up for you – because you are standing up for us, for the Rule of Law, for compliance with the Constitution.

      Do not back down. Stand your ground. UP the ante. Your nation is in desperate need of patriots. Time is of the essence. And the dangers this administration poses cannot be underestimated or allowed to continue.

  61. radiofreewill says:

    Given Mukasey’s prior EO answer to Whitehouse during the confirmation, I suspect Mukasey will find Whitehouse’s entire argument persuasive and let Fitz’ papers go to Waxman.

    • Hugh says:

      Given Mukasey’s prior EO answer to Whitehouse during the confirmation, I suspect Mukasey will find Whitehouse’s entire argument persuasive and let Fitz’ papers go to Waxman.

      I also have an entry on Mukasey at 265 if you want to read the whole thing. The short version is that during his confirmation hearings Mukasey bought into all of the Bush Administration’s assertions of Presidential powers so I am much more pessimistic he will be responsive to Waxman. But we shall see.

    • Phoenix Woman says:

      The impression I’m getting, if I’m reading emptywheel right, is that Whitehouse knew that Mukasey, while conservative, wasn’t without scruples or a respect for the law — and Whitehouse knew just what sort of mental time bomb to set ticking in Mukasey’s mind.

      • emptywheel says:

        Think of it this way. Imagine Whitehouse, as a Prosecutor, asking a witness something that he knows is going to come up later in the trial. Once he gets the witness on the record saying something, he’s pretty much stuck.

        So after Mukasey completely punted on waterboarding, Whitehouse elicited testimony from the witness taht would nevertheless box him into the corner. I’m not sure whether 1) Mukasey will use it, grateful to have an out from having sold his soul, 2) Mukasey will use it, aggravated that he got caught, or 3) Mukasey will go down in history to be as big a schlub as AGAG. Right now the ball’s in his court, I think, but Mukasey does have some options, though Whitehouse has succeeded in narrowing those options significantly.

    • Leen says:

      Do they care that the majority of the American people have little or no faith in our justice system? Does it matter to any of these characters?

  62. billinturkey says:

    Yes – look, even though IANAL, I’m not stupid and I do understand what declssified means. But presumably the point of a legal opinion is to get some people somewhere to do something – it’s not as though no-one in the world was aware of the legal opinion – if that was the case there’d be no point issuing it.

    bmaz/lhp (or other lawyers): is this really as f—ed up as it looks?

    • radiofreewill says:

      bill, ianal, but part of the story-line here is the clever use of ‘compartmentalization’ by Addington to hide the ‘legal’ opinion from those ‘compelled’ to comply with it by Bush’s Agents.

      • looseheadprop says:

        And the use of compartmentalization to make those who would ordinarliy be inclined ot stand up to this bullshit, doubt themsleves b/c of the fear that they don’t have enough info to come to a full and fair conlcusion.

        These are serious and cautious men, who don’t “go with their gut” and don’t shoot from the hip

        • radiofreewill says:

          I’m with you, lhp!

          Imho, one of Cheney’s most insidious ‘power-trips’ with people has been his attitude of I ‘know’ more than you [I have Power over you], so I Must Be Right – the fucking Darth Vader mode.

    • looseheadprop says:

      No , the opinions were a secret.The only people who knew about them where the sort of high ranking people needed to give pushback, except most of the high ranking people where Bush toadies.

      Therefore, even Guys like Comey who DID pushback, were prohibited from talking about the opinions b/c they had signed “executive agreements’ that meant that they would goto jail if they talked. Frankly, violating the executive Agreements would in itiself harm the rule of law so it became a catch 22.

      It’s interestitnd the Think Progress scoop about CIA analysts willingto risk prison to get the NIE out. This mutiny at CIA is almost the same as the Comey led DOJ mutitny.

      You see, they use the scruples of good ethical people,to tie them up in knots.It;s taken the good ethical people a long time to unravel those knots–largely because COngress has been so spineless

      Yeah, I hate Nancy too, And Rahm and Steny

      • BayStateLibrul says:

        Has anyone tested the “Executive Agreements” that you reference?
        I can see where someone like Father Berrigan might risk jail for the greater good?
        What would Thomas Merton do?

  63. perris says:

    thanx for the link, here’s a quote

    “intelligence career seniors were lined up to go to jail if necessary” if the document’s gist were not given to the public. Translation? Someone in that group would have gone to the media “on the record” to disclose its contents.

  64. billinturkey says:

    Ok – so here’s my question made more concrete.

    Does Whitehouse’s second mean that (say) the President could make an appointment to a Cabinet post without senate confirmation and then deem it legal under this provision of Article 2 –

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

    – regardless of whether the senate is in recess, (since the pres gets to say what article 2 allows him to do).

    Or is it not quite that bad?

    • perris says:

      it’s worse then that

      number two says if the president says he can do anything that means he can do it

      this includes torture, rape, murder

      • Rayne says:

        Nothing in Article II says that the president is above the law; furthermore, he cannot make law, that being the sole province of Congress.

        Congress is going to have to act; they have to exercise their powers as a co-equal branch. For that matter, the SCOTUS will, too, or become nothing more than an adjunct function of the executive branch. Those three points basically delineate a Constitutional crisis, and failing to act legitimizes this coup.

        • bobschacht says:

          “Congress is going to have to act; they have to exercise their powers as a co-equal branch. For that matter, the SCOTUS will, too, or become nothing more than an adjunct function of the executive branch. Those three points basically delineate a Constitutional crisis, and failing to act legitimizes this coup.”

          This is exactly right. And calling it a Constitutional crisis is exactly what John Nichols and Bruce Fein said on Moyers’ show about impeachment. We are deeply into a Constitutional crisis right now, and as Nichols and Fein have pointed out, the appropriate constitutional response is impeachment.

          Bob in HI

      • LS says:

        But…if he wages “war” against the citizens or if he aides and abets or gives comfort ($$) to anyone who is considered an “enemy” (maybe like declaring Iran an enemy, but allowing KBR or someone to aide them)…and two witnesses witness it….

        Isn’t that Treason?

    • LS says:

      It’s way worse, it says that he personally, because of his special powers, can decide how much power he has (regarding anything), which means that he is…omnipotent as far as his powers go. He’s it. Whatever he does is legal, because he said so.

          • perris says:

            which means they will suspend the election

            now get this because what I am about to say is even more firghtening then the post marcy put at the top of thsi page;

            the president has proven that the more he is exposed the more brazen he becomes

            let that sink in;

            the more he is exposed the more brazen he becomes!

            that means if this goes viral the way it NEEDS to go, then we are in for some even more scary shit

            stay tuned

    • WilliamOckham says:

      Bill,

      I’m not a lawyer, but I trained with some. The logical conclusion is that the President can do anything he wants, but the practical effect is more insidious. I suspect (hope?) that the lawyers who wrote this crap knew, deep down, that it would never stand up to scrutiny. It’s really all about what the Administration does in secret. With those OLC opinions, it’s easy to tell every civil servant that, no matter what they are asked to do, there’s an OLC opinion justifying it. That means, in effect, shut up and do it, here’s your get out of jail free card. That reasoning doesn’t work for everything (war crimes can be prosecuted in other countries), but it works for a lot of stuff (illegal NSA activities).

      • TheraP says:

        Following up on what WO said to billinturkey: Remember the “slip” Monica Goodwin (or somebody made) about “taking an oath to the president.” Well, I’m presuming that’s part of it. And remember what Dana Perino said the other day to Helen the Insurgent, that it was “an honor and a privilege to serve in the White House” and therefore she’s better watch her step (in essence).

        I don’t know why this is, but to me this has long been evident… just not in black and white.

        Now, they have to act. This is not some paranoid thinking by nuts on the left. This is written down… not deleted. Spoken about on the Senate floor. After it’s clear they were trying to lie us into another war and have videotaped torture – and then obstructed justice.

  65. John says:

    All very interesting.

    Unfortunately, nothing will be done. There will be an “investigation” or two, BushCo will withhold or destroy evidence, Congress will do nothing, Democratic candidates will attack each other and ignore Bush, etc. etc. etc. We are so far beyond anything having to do with Dems vs. Repubs, it’s not funny.

    I have zero faith in the ability of my country to lift itself out of this quicksand and am moving on — emotionally, philosophically, and spiritually. That makes me a minority of two or three here at FDL, which would be nasty, except that America has marginalized us already. Rather well beyond caring, however, because the cutting edge lies far outside the political blogosphere.

    But I do appreciate all the digging. Something to read on the journey, as it were.

    • merkwurdiglieber says:

      I have said elsewhere that this smell like Weimar to me, it did 35
      years ago but, we got a reprieve. This is much larger in scope and the
      institutions have been gutted for this purpose. No democracy has ever
      come back from this point, we will have to set another record to survive.

  66. radiofreewill says:

    Bush’s UE Rationale is as Abhorrent to Americans as Torture, Warrantless Domestic Spying on Citizens, Politicizing the US Attorneys, and Outing a Covert National Security Assett for spite.

    What has he been hiding? That he does not Represent the Essence of the American People before Ourselves, or the World!

  67. WilliamOckham says:

    While I agree with all the folks here about what these OLC opinions mean, there are still constraints on the executive. For starters, they are terrified of any of this getting tested in court. They know they will lose. Obvious abuses would generate pushback. I’m shocked that they let Whitehouse declassify this. They must think they can run out the clock and get out of town before the whole edifice crumbles around them.

    • LS says:

      That does bring to mind that Goldsmith said that they are “really scared” about war crime stuff. I guess if they really thought they could ultimately get away with this, they would remain fearless. So, you have a good point there.

      I think they are in really deep doo, doo, and I think Pelosi etal., has somehow agreed with them to let them slide till they leave..to avoid something so ugly that the country would completely implode.. She made a comment once that said that “Bush is fully aware of the Constitution”….I’m guessing they’ve had a little chat.

    • emptywheel says:

      I agree with you there, WO. The declassifcation of the NIE is one example. Eventually people will be willing to go to jail to push back, and we appear to be at that point now. And we know many–though not all–in the miltiary are done with this BS.

    • readerOfTeaLeaves says:

      WO, we’re still not entirely sure who ‘allowed’ the declassification. Could it be the newer, better DoJ admins…?

      After following EW’s posts for over a year now, it’s become quite evident that the ‘evidence’ lay buried in docs, but we are finally witnessing political epidemiology from an elected. To wit:

      – collect sample docs
      – study sample docs in detail
      – place them in context to one another
      – place them in context to events
      – drill down inside the ‘operational logic’ at the sentence level
      – distill the logic
      – summarize the logic
      – help others see how simplistic, and profoundly flawed, the ‘BushCo operational logic’ actually is. Bug riddled.

      As noted on prior threads at TNH, Bush uses very few ‘connector terms’; his comments seldom express causal relationships. There are no complex ideas here; there’s no room for discussion.

      EW, Am glad you have so many more readers, but I do miss the smaller, cozy threads…. taking up tons of time to read so many comments… all of them good. sigh.

      Per Rayne @ 40, I too have had a hard time forgetting that nukes were flying around — and in August, just after it appear Bush was told the NIE did not support war against Iran. What’s with that coincidence?
      Shorter: the simplistic, authoritarian style revealed by Whitehouse might have cut it in 1840, but in an age of nuclear weapons and instant communication, it’s simply too risky.

        • bobschacht says:

          “LS December 7th, 2007 at 12:43 pm, @282
          In response to readerOfTeaLeaves @ 279
          Somebody had a plan for those nukes, and the plan went wrong. That single incident may have saved the world.”

          According to Al the Spook, don’t believe the cover story about that little bombing incident in Syria. The plot was to fly the nuke-empowered planes from Israel, across Syria, along Iraq’s northern border to Iran, where they were to make a little demonstration run at Iran. However, one of Syria’s defense posts started taking pot shots at the aerial convoy, so the escort jets vaporized the defense post. But this risked blowing the missions cover, so they returned home. All this probably arranged by Cheney and neocons such as Podheretz, in cahoots with a rogue branch of Israel’s air force. I’ll provide the links if you want ‘em.

          Bob in HI

          • merkwurdiglieber says:

            Similar to Operation Cyanide, Israeli pull plug on wild ass American
            plan to preserve status quo for another day.

    • looseheadprop says:

      “They” may not have been the W/H. I am assuming that the original classifying agency was DOj, which means Mukasey could declassify on his own signature

  68. Leen says:

    More time to make the case for a pre-emptive strike on Iran.

    AIPAC judge sets April 29 date

    Published: 12/06/2007

    An April 29 trial date was set in the classified information case against two former AIPAC staffers.

    Judge T.S. Ellis III of the U.S. District Court in Alexandria, Va., told prosecutors and defense lawyers that the date he set Thursday was final, sources said.

    Ellis’ office confirmed the date, at least the fifth such date since Steve Rosen, the American Israel Public Affairs Committee’s foreign policy chief, and Keith Weissman, its Iran analyst, were indicted in August 2005. The pretrial phase has dragged on largely because of arguments over the government’s reluctance to share evidence with the defense.

    Rosen and Weissman are accused under a 1917 statute that criminalizes the receipt and dissemination of classified information.

    Ellis has allowed the defense to subpoena top Bush administration figures in the case, including Secretary of State Condoleezza Rice and National Security Adviser Stephen Hadley.

    The judge has anticipated a trial of four to six weeks, which raises the prospect that it could overlap with AIPAC’s annual policy conference scheduled for the beginning of June.

    Separately, the prosecution announced three expert witnesses it would call to show that the classified information allegedly handled by Rosen and Weissman damaged the national interest: Maj. Gen. Paul Dettmer, the Pentagon’s assistant deputy chief of staff for intelligence, surveillance and reconnaissance; William McNair, a CIA official; and Dale Watson, the FBI’s former executive assistant director for counterterrorism and counterintelligence, who headed the agency’s investigation into the Sept. 11, 2001 attacks.

    The defense has not announced its experts.

    • WilliamOckham says:

      If I were a lawyer and defending these guys, I’d claim in my opening statement that Bush personally approved (orally, of course, not in writing) everything that my clients did. Then, I’d ask for those OLC opinions. Of course, the government would refuse and I’d claim reasonable doubt.

  69. Hugh says:

    BTW NPR just announced that Howard Krongard the inept Inspector General at the State Department has resigned. This might explain why there was no hearing this week (as promised) about his activities.

  70. Leen says:

    To all of you lawyers. Why is justice taking so long? Sure did not take this long with Clinton. Why should we have any hope in this system? It just seems to be so incredibly corrupt?

    • BayStateLibrul says:

      Great point…
      I’ve been waiting for weeks, days, months, fortnights for the next shoe to drop.
      The shoes keep dropping but NOTHING happens…. Someone please explain this to me?

    • looseheadprop says:

      Clinton did not get “justice” unless you count the aquittal vote by the Senate.

      Clinton got witch hunted. Real justice take freakin forever

      • perris says:

        what he meant to say is that impeachment of clinton took all of two months

        that’s right;

        TWO FRIGGIN MONTHS

        congress and the senate can afford two friggin months to save our country and constitution

  71. Waccamaw says:

    From this progressive’s long-suffering perspective, this has been one “passin’ fair” week!

    Translation: It don’t git much better. *g*

    Hugh @233 –

    Hmmm…interesting, that. Was this out of the blue or has it been expected?

    • Hugh says:

      There was supposed to be a big confrontation between the Krongard brothers Cookie and Buzzy before Waxman’s committee about whether Cookie knew that Buzzy was on the board of Blackwater but as selise noted that was supposed to happen this week but then didn’t. So some people probably knew this was coming. Also it’s Friday and it could be part of the Friday news dump.

      • Waccamaw says:

        Oh, yeh…..that brother duel.

        Best I can tell, this has pretty much been a dump WEEK. And I’m sittin’ here with the biggest sh*t-eatin’ grin you’d ever want to see.

    • BobbyG says:

      The Bu’ush administration is now heavily into “Melt Clock” mode, banking on substantive congressional inaction, and no germane case(s) reaching the Supremes in time.

  72. Leen says:

    Why have hope in this system?
    Blackwater’s Bu$ine$$

    By Jeremy Scahill

    12/06/07 “The Nation” — – Gunning down seventeen Iraqi civilians in an incident the military has labeled “criminal.” Multiple Congressional investigations. A federal grand jury. Allegations of illegal arms smuggling. Wrongful death lawsuits brought by families of dead employees and US soldiers.

    http://www.informationclearing…..e18842.htm

  73. peachkfc says:

    One of the best things about moving from Philadelphia to Rhode Island a few years ago was that I got to trade Senators Arlen Spector and Rick Santorum for Senators Jack Reed and (eventually) Sheldon Whitehouse. This latest revelation by Whitehouse proves once again that he is one of the smartest and hardest-working people in Washington.

    Anybody who’s been paying attention has been aware for years that the Bush Administration has been governing under the bizarre assumption that the Executive Branch is superior to Congress and the Judiciary, but to see these three “principles” supporting the “President as King/Pope/God” theory of government is nonetheless shocking. As an attorney and a student of American political history (I have a BA in History from the Maxwell School of Citizenship and Public Affairs at Syracuse University,) I can’t even begin to imagine the rationale used by the OLC to support these blatantly unconstitutional, un-American, and illogical positions. I can only guess that the OLC puppets simply begged the questions by creating arguments out of whole cloth to support the foregone conclusions dictated by the President (in this case, of course, the puppeteer is really Cheney and Bush is merely another one of the puppets.) I’d been waffling about which one of these three abominations is the most appalling, and I’ve just managed to convince myself that it has to be No. 3. Even with Nos. 1 and 2, one would assume that the President would most likely make legal decisions under those precepts after getting some sort of counsel from his legal advisors. But No. 3 makes it clear that in this Administration, the governmental agency specifically set up to act as the expert on legal matters for all the people of the United States has no authority to do its job. Rather, the job of the DOJ has been redefined to make it nothing more than an empty shell that exists only to do the President’s bidding. The potential ramifications of this doctrine, many of which we have already seen, are truly breathtaking.

  74. PJEvans says:

    spotlighted this to some print folks also, and to Henry the W, with a note that I want impeachments for Christmas, New Year’s, King Monday, Presidents Monday, St Paddy’s day, Memorial Day, and the 4th.

    (OT: Per TPM, Harman has admitted she knew about the videotapes in 2003. It may explain why they’ve kept quiet. Doesn’t improve my opinion of her, though.)

  75. LS says:

    Maybe no one declassified it. Maybe he went out on a limb for the good of the country and blew the whistle…could that be???

    • WilliamOckham says:

      Whitehouse said:

      I have gotten three legal propositions from these secret OLC opinions declassified.

    • perris says:

      Maybe no one declassified it. Maybe he went out on a limb for the good of the country and blew the whistle…could that be???

      yes, that could be, and if that’s what happened he would go down in history as one of America’s noblest patriots, he would stand beside jefferson and washington

  76. earlofhuntingdon says:

    Mr. Whitehouse’s “in a nutshell” captures the life and works of Richard Bruce Cheney. Mr. Cheney must hope that his defense of “following the superior orders” of his president will hold up through all the subsequent investigations of the Bush presidency. It hasn’t before. Where are the Daily Show writers when you need them most?

    • klynn says:

      Right now, John can say, (no offense to writers intended) “Who needs writers? No one can make this stuff up!”

      John can do his show on this all by himself. I think 249 comments for EW on this matter (and counting) is evidence.

  77. radiofreewill says:

    Karnak the Magnificent: “How does an Ideology crawl inside the Constitution of a Free People and Corrupt it?”

    Tears Open Envelope:

    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.”

    • merkwurdiglieber says:

      Just remember that when King John had that friendly little meeting
      with the nobles under charter oak there was a rope in someone’s saddlebag.

  78. LS says:

    I’m probably “misremembering”, but wasn’t there a back and forth between Whitehouse and Mukasey during the confirmation hearing, where Whitehouse said he would be happy to look into some things for Mukasey if Mukasey needed him to? Also, the first thing Mukasey did was reopen investigation into the warrantless wiretapping.

  79. TheraP says:

    Article up at NY Times website on the destruction of torture tapes, but other than Think Progress I’m not finding this story out there.

    Is it just too complex for people to consider that the rules of the game, the Rule of Law has gone down the drain… or might?

    That’s what bothers me over and over. It keeps looking like the smoking gun that will take down the house of cards. And then… nothing happens.

    • perris says:

      you remind me of the minutes from the government of england, downing street

      the fact that those minutes didn’t begin impeachment hearings is bizzare

      and this revelation from whitehouse is no more powerful then the minutes from downing street

      so we are left with the spector of nothingness

      • TheraP says:

        Yes, a black hole. And the missing link, which we have not discussed today, is the self-censoring by the press. Ergo, the needs for the blogs to cooperate and boost the story.

        • merkwurdiglieber says:

          Two large errors by Madison who never foresaw the corporatization of
          the press, 1 the press would remain independent, 2 corporations could
          be regulated by the states, hence no constitutional treatment of them
          at all. Murdoch is the model they all follow now.

          • perris says:

            we must federalize murdock and break up his stranglehold

            we must return the press to local ownership and we must restrict consolidation

            we must renew the fairness doctrine

            we must remove corporate contributions to lawmakers

            I could go on and on

          • TheraP says:

            The question then becomes: Can the Constitution endure or are we at the point the Declaration of Independence suggested:

            But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

            • merkwurdiglieber says:

              The blogs have had to take up the role of adversarial press, the blogs
              are the broadsheets and committees of correspondence now and have been
              for some time. It’s not like we wanted it that way, but given the craven
              performance by existing media and institutions we have no choice but to
              continue this activity.

      • LS says:

        The NIE revelations are more closely related than the Whitehouse revelations to the Downing Street memo.

        The Whitehouse revelations point more toward the internal takeover of power inside our country. JMHO.

        • TheraP says:

          And that may be more difficult for people to even comprehend, you see. Or believe!

          I somehow think people simply do not understand how the whole govt is based on a document that can become a dead letter unless people truly agree to live by it. I honestly have to think people don’t want to think. Too many depressing events… it’s the holiday season…. so go to the Malls.

          Very sad. Very worrisome.

        • perris says:

          I agree with your point, what I am saying is the government documents from england were powerful and showed the depraved nature of this war

          a president that lied us into an unprovoked war

          and nothing came of it…nothing

          I fear the same here, though there does seem to be hope, the nie did create a stir and hopefully this will gain momentum and carry us to the next step

          we must get these despots out of office and pelosi must act

          • LS says:

            Yes, I agree entirely with you. I remember that they dissed the significance of it because it was “hearsay” by a member of a foreign government. What is happening now, is that members of our government are coming forward and exposing what is happening now and uncovering what has been happening for a long while. Something will stick this time I think. In fact, Harman was just interviewed on MSNBC and said that she had been aware that they were thinking about destroying the CIA interrogation tapes, and that she had written a letter opposing it. Also, she said this is very, very, bad…and that it coincided with ongoing trials, the ongoing 9/11 Commission investigations, and investigations by Congress. It’s all bad this time, all around. In the past, everything was a rumor and immediately deemed conspiracy theory…not now, and I’ll bet that rabbit hole goes all the way back pre-9/11…we already know the wiretapping started before 9/11. It all ties in together. A criminal conspiracy to takeover this country and everything else they could takeover. It is really, really bad.

    • readerOfTeaLeaves says:

      This won’t be smoking gun. It’s drip… drip… drip.
      Which beats any sort of ‘ka-boom’, as far as I’m concerned (!).

      Think of a huge mansion that’s put so much sewerage into the system that all the toilets have backed up and overflowed, the sewer lines have broken and the mess has seeped beneath the foundations, destabilized the cliff, and the whole mess is s-l-o-w-l-y slidding down the cliff face… v…e…r…y…….. s…l…o…w…l…y

      This is more comprehensive than any smoking gun.
      And it must have taken a whole love of insiders to pull it off.
      Watch out for cholera; there are surely plenty of contagiously frightened people racing about in their jammies.

      • TheraP says:

        Well, even if the thread is petering out here, I’m thinking about this topic, which is so important. The Constitution and the Rule of Law. Preserving. Protecting. And defending that.

        And I’m thinking how difficult a topic this is to try and explain to the public at large. Deleting documents. Erasing tapes. People can comprehend that. Break-ins, they can follow that.

        But if an administration decides to take over by stealth, from the inside, slowly… insidiously and with the cooperation of the press and the congress and the corporations, that is very difficult to explain to your average joe. That is the challenge here. How package an explanation, so people “get it” immediately? So they don’t have to wrap their mind around legal terms and intellectual arguments.

        As moving as the speech of Whitehouse is, to us, I can see flopping on teevee. I can see people tuning out. So while this is indeed the smoking gun here… it’s not looking like a gun and smoke… things which are easy for even kids to get.

        This almost needs a pr campaign. Where you lay out your case in the background but you educate people in ways that are as easy as a visual cartoon.

        I hate to put it like that. But we have two problems… well, at least. One is what’s going on… the fascist state coming into being (and wherever it has done so, the public at large often feels safe and secure and patriotic). And on the other hand, how to get people to see the scam, the rot, the take-over.

        I don’t have the solution. But my work relates to how people change. They have to want to change. There needs to be a motor for that. And the motor is a sense of something being terribly wrong. Otherwise the path of least resistance takes over and nothing happens.

        So, I’m thinking strategy here. There needs to be a strategy. Wish I had one to give. But unless we start dumbing down what needs to be communicated or unless there is an event like Katrina that makes it crystal clear…. I’m feeling discouraged.

        I hope I’m wrong.

        Reader of Tea Leaves (I love tea!): I addressed this to you, because your analogy is a good one… the kind of thing we need. I am in complete agreement. But I’m telling you… that under fascism everything can look calm on the surface… I’m talking Franco Spain. So…. god help us!

        • merkwurdiglieber says:

          If the serious blogs keep up the pressure as in the Libby case, the
          MSM might follow cursing us all the way out of shame, that is what I
          hear in David Gregory’s voice as he kvetches about the DFH blogs. I do
          not have a more formal approach than that for now, essential project IMO.

          • klynn says:

            You are correct. We all need to go over to other blogs and put the pressure on to hit this story. With 308 comments and going, there has to be enough of us to get this going. Post lots of O/T’s with links to here.

  80. klynn says:

    Would still like to see a unified effort by the blogs to cover this story because MSM has no headline news about it yet…

    • Leen says:

      As soon as I read EW’s post yesterday morn I sent it to Raw Story, Huffington Post, linked it at Crooks and Liars and at No Quarter Usa,

  81. LS says:

    The military leaders must be seething at the Administration for withholding the Iran information. Surely, it has destroyed all credibility. Can you imagine coming to the realization based on black and white proof, that your Commander in Codpiece is willing to send you into war based on real tangible lies…this time catching it “before” you send your troops off to die. It must remove all doubt in their minds that they are following the orders of criminals.

  82. klynn says:

    Perhaps it will take all of us visiting other blogs and posting O/T in the threads and post a link here. Maybe with EW getting all the hits, the blogs will catch on as well…

  83. whitewidow says:

    Sweet Zombie Jesus! Is impeachment back on the table yet?

    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.

    I didn’t know Whitehouse spoke snark:)

  84. LS says:

    Don’t forget about the 10 million missing emails.

    Oh, I just remembered about all of those gazillion documents that were never released regarding Abramoff too – just a reminder of their criminal pattern. Don’t forget that the FBI took a bunch of documents regarding Atta and Sun Cruz’s…ya know, the one involving the guy that got murdered too.

  85. radiofreewill says:

    LS – The Military leaders had to be in on it – the NIE is the work of 16 Intelligence Agencies within the Intelligence Community – and that includes the Defense Intelligence Agency.

    Bush may have ‘wild-catted’ the Loose Nukes, Syria Provocation Mission and the WWIII Rhetoric outside the community of the NIE.

    • LS says:

      They have had a shadow government of cooperative types going on since IranContra. The Dark Side. Cheney is so arrogant, he even said it.

  86. LS says:

    This time, they have taken over:

    Military
    Intelligence
    Politization of all Departments
    The Constitution
    The RNC/DLC

  87. TheraP says:

    rotl…. how right you are! And that is part of the problem. What you, right here, are having trouble with… your average joe hasn’t even got time for! let alone the mental heave-ho to hang in there and try to get it!

    Sorry I came over here. Usually at tpm… but Josh is too focussed right now on his videos and the repub scandals and his ends of year muck awards. And, for me, the kind of thinking that goes on here is right up my ally.

    So apologies… I’ve forced myself to keep up.. on a day off. Pretty soon have to get some things done that I’ve been postponing due to my concern for the Constitution.

  88. klynn says:

    Have not found a YouTube posting of the speech. I’ve gone to the other links above just fine. However, YouTube gets such high traffic if it was posted we could boost the rating and hits #’s…Just a thought.

    • selise says:

      if no one else does it soon, i’ll convert the real player stream from whitehouse’s office to youtube this evening. please let me know if you see one, i’ll check back here later (gotta do a few things first)

  89. Krashkopf says:

    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.”

    Damn! Naomi Wolf said it best – – –

    “Impeach. Prosecute. SAVE AMERICA!”

  90. bobschacht says:

    Before we get into EPU-land here, I wanted to add this:

    Way back at the dawn of this age (ca. 2000), perhaps even before he took the oath of office, George W. Bush made a very curious speech in which he warned of the perils of hubris. I wish I could find it now; the irony would be so think you would need an electric knife to saw through it. I read it on the internet at the time, but didn’t bother to save a copy.

    “Quem deus vult perdere, prius dementat” Those whom the gods would destroy, they first make mad.(Attributed to Euripedes)

    Could this be playing out about now?

    Oh, and George– Merry Christmas and all. Sorry about that lump of coal in your stocking.

    Bob in HI

  91. Arnie says:

    If impeachment is the constitutionally legitimate way to remove malfeasance by legitimate administration, what is the constitutionally legitimate way to remove an illegal administration? Would the use of legitimate method lend legitimacy to illegal malefactors, an unintended and undesired consequence? Could that be the cause of Pelosi’s “off the table” position? One fact certain, the administration has absolutely no claim to legitimacy even prior to obtaining office.

    IANAL, can someone enlighten?

    • Arnie says:

      that should read:
      … lend legitimacy to illegal / illegitimate malefactors,

      oh to have an edit again, thanks

  92. littlesky says:

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

    The Unitary Executive in a nutshell.

  93. litigatormom says:

    Wow. See what happens when you are in Court all day. You miss really important stuff. Like learning that your deepest darkest fears are really true, and that the President of the United States thinks he is a law unto himself.

    There is clearly only one that King George cannot control, change, veto or ignore.

    IMPEACHMENT. Immediately. As in right fucking now.

    P.S. Nice new digs, Marcy.

    • Luminous says:

      I agree with those who say we need to “push” this story into the mainstream media by getting more major blogs to highlight it. I’ve sent notes to Glenn Greenwald and kos hoping they will give it some major coverage.

      Of course, writing to reporters/editors in the MSM and linking them too. I sent a note to Bill Moyers Journal.

      CONGRATULATIONS to emptywheel!

  94. YumYum says:

    Has anyone asked the critical question: just how many of these secret Justice Department Office of Legal Counsel opinions are out there, and what exactly are they?

    Someone has started answering that question by posting an official list of OLC opinions here:

    http://www.governmentattic.org…..8-2007.pdf

    Check out the other documents at GovernmentAttic.org – you may find them helpful.

    • klynn says:

      Thanks selise. Thanks MrWhy.

      Share that YouTube posting away. It needs to set a record on hits. Please post a link O/T on other sites and in posting here and @FDL all day. I would do it; however, I will not be able to catch the threads until later today around 4 PM EST.

      Keep drummming this message on Whitehouse. It has to make the MSM.

      • TheraP says:

        I’m going to do a short post at tpm cafe and send an email to
        Andrew (not sure if he works on weekends or not) and see if they can frontpage that or frontpage something.

        Also, see my comment at 333 – and if anyone can do that… it would be so funny and so apt.

  95. piniella says:

    It’s Nixon Time once again:

    NIXON ON PRESIDENTIAL POWER

    FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.

    NIXON: Well, when the president does it that means that it is not Illegal.
    FROST: By definition.

    NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.

  96. TheraP says:

    In addition to getting this picked up by the MSM, I’ve not got what I think is the way to help your average couch potato understand this. And it came in a post by moondancer over at tpm:

    moondancer wrote on December 7, 2007 6:41 PM:

    I love this guy.
    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. (my bold)

    If someone could do a script for this, very short, and get a few kids together to make a utube video, prefaced by Whitehouse’s comment about here’s what bushco does when you’re not watching.

    Done well, it would be both funny and terrifying… especially if you follow it by a scene from Katrina.

    If you happen to know someone, like a writer on strike, with a tiny filmcrew and a few kids ready to have some fun… this could indeed become like a beneficial virus, spreading the word.

    And moondancer my hat goes off to you for this and so many comments.

    • klynn says:

      Great idea. Additionally, in true Christy style, we have to get those letters and emails going to Whitehouse with CC’s to all Senators and Congress peeps. I feel so bad, I’m on my way out the door. If people could post links here and in other threads today, it would be great. We must flood Whitehouse’s office with thank you’s for his calling of Constitutional courage.

      • Leen says:

        Yes! Miss Christy but sure hope she is having wonderful down time with her family. FLOOD THE WHITEHOUSE . AND REPS OFFICES WITH EMAIL/PHONE CALLS VISITS.

    • TheraP says:

      Oh for an edit feature!

      should read: “I’ve now got what I think is the way to help your average couch potato….”

      • TheraP says:

        Ok, I’ll put that in my cafe post… along with links to utube etc.

        I am totally on board with this. Will do what I can, send to email lists, etc.

        • klynn says:

          Thanks so much.

          I’m asking my better half to click here for Marcy and make a donation as my Christmas present. She broke this story. It is big history in the making.

          • TheraP says:

            I pray you’re right! I’ve had so many dashed hopes these past ? years…. but I think the tide may be turning… And I’ll do my part.

            Peace!

  97. klynn says:

    Just to give an idea of import on the YouTube. Bush’s Inaugural Speech got 5972 views. Let’s beat THAT.

  98. selise says:

    wow. this is amazing. i sent (via email) the youtube link to one person (in addition to marcy) and it’s already posted here!

    just fyi… since i had to put it into two parts (youtube has a 10 min clip limit), at marcy’s suggestion i broke it into 2 pieces so that part 2 can stand alone.

    alternatively, i made a playlist with both parts that, i think, will play them consecutively.

  99. Lexington says:

    At the same time Whitehouse was busy taking on the White House, Speaker Pelosi was busy making brave statements of her own (I quote) “as a mother and a grandmother, nothing is more important to me than the safety and security of our House pages.”

    No joke (http://speaker.gov/newsroom/pressreleases?id=0435)

    She really puts the nancy in Nancy, doesn’t she?

    I’d say her leadership is now in name only. If she’s interested in the real thing, she should consult the Gentleman from Rhode Island.

  100. Luminous says:

    I bet Glenn Greenwald over at Salon is working on an article about this. It’s right up his alley. I hope he is because this needs to get a LOT more traction than it has.

    I notice that conservative blogger Andrew Sullivan over at The Atlantic mentions this story and links to emptywheel.

  101. PetePierce says:

    “Damn, I love me some Sheldon Whitehouse. He, like, actually knows the law. And he, like, is willing to actually read the stuff he is exercising oversight over.”

    EW–How much did you love him the afternoon he voted for the Intell Bill with Amnesty ala the agreement with Cheney, Addington, and Fielding courtesy of Jello Jay and Feinstein.

    Only Senators Russ Feingold (D-WI) and Ron Wyden (D-OR) voted against the bill.

    Whitehouse votes for Telco Immunity version of the Senate Select Intell Markup