OPR Endorses Pixie Dust

Back in January, Steven Aftergood sent a letter to the Office of Professional Responsibility outlining the absurdity of the Adminsitration’s claims that Cheney was exempt from normal rules on classified information.

The complaint makes a number of worthwhile points, including:

  • "Shall" means "have to"
  • Fielding’s letter didn’t resolve the conflict
  • Dana "Pig Missile" Perino’s public statements–which Fielding cited in his own letter–didn’t resolve the conflict
  • "Person" of the Vice President is not the same thing as "Office" of the Vice President

And, finally, this doozy: "not different" is not the same as "different":

What Mr. Fielding failed to recognize is that some members of the President’s office do report to the Information Security Oversight Office. These include the President’s National Security Advisor, the President’s Science Advisor, and others.

So if the Vice President is “not different” from the President, then at least some of the Vice President’s staff would be expected to report their classification and declassification activity to ISOO, as do some of the President’s staff.

The executive order provides no basis for concluding that the President’s National Security Advisor, for example, must report to ISOO every year, as he does, while the Vice President’s National Security Advisor should not. That makes no sense at all. Yet this incongruous result reflects the Justice Department’s failure to correctly analyze the requirements of the executive order, which is a professional lapse.

Alternatively, if the Vice President’s National Security Advisor (among others) does not have to report to ISOO, this would contradict the President’s expressed intent that the Vice President is “not different” than the President for purposes of the executive order. It would mean that the President intended the Vice President’s staff to receive less oversight from ISOO than does his own staff. Yet that is contrary to what the President’s spokeswoman indicated. [my emphasis]

I guess this is the nonsense you get when you send Dana "Pig Missile" Perino to address matters of ontology.

Aftergood asked OPR to investigate whether the OLC had acted improperly when it blew off Bill Leonard’s request for clarification on the issue.

On Valentine’s Day, OPR sent Aftergood a love letter in response, basically endorsing the Pixie Dust theory and telling Aftergood to embrace the Bush Administration in all its absurd glory.

In addition, this matter does not involve the allegation of affirmative malfeasance, but rather, the alleged improper failure to perform an act. It is important to note that the Executive Order, as amended, was issued pursuant to the current President’s executive authority and the President has the pwoer to modify or revoke such orders. Therefore, the President’s interpretation of the order is particularly significant.

Which basically says two things. First, OLC can tell Leonard to go Cheney himself (literally) and that doesn’t constitute real malfeasance. And second, Pixie Dust rules. Note, too, that it’s not the President’s interpretation that we’re relying on when considering Cheney not an agency. It’s actually Dana "Pig Missile" Perino’s interpretation, offered via Sam Brownback via Fred Fielding. But I guess one Pig Missile = President these days.

And if that’s not already enough for you, Aftergood notes this bit:

Finally, he suggested, if there are still questions of interpretation of the executive order that remain unresolved, “the ISOO may request an opinion from the Department clarifying the matter.”

The Department’s prior refusal to render such an opinion was the basis of the original complaint.

Joseph Heller would be proud.

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.

49 replies
    • phred says:

      No. This is very very serious to them. They ardently believe in Imperial government and continue to work very very hard to achieve it.

      • pollypat says:

        This is a little OT, but not by much.

        I’ve been warning people about the Bush Administration’s criminal activities since way back when. Recently, I’ve had two staunch Democrats tell me that Bush is irrelevant, and it’s time to move on.

        I say, yes, let’s move on, but let’s keep an eye on our backs.

        What do you guys think? Do we spend too much time dwelling on Bush? Will the nightmare end when he leaves office?

        • chisholm1 says:

          The nightmare will live on in terms of the damage the Republicans have done to the country.

          I am quite curious, though, as to what an Obama Attorney General would discover in the process of cleaning up the hideous cesspool at DOJ.

        • Funnydiva2002 says:

          I guess even so-called staunch Democrats can have their heads in the sand (or elsewhere where the sun don’t shine). Of COURSE the nightmare won’t end just because (if) Bu’ush leaves office–far, far too many of his lame-ass, crony, political appointments to agencies like DOJ make that impossible. The precedents the neo-cons have tried to put in place will not just disappear without a lot of active work to eradicate them.
          Watch our backs? Heck yeah!
          Move on? Hellz no, not without cleaning up the mess first! At least, I’m not interested in leaving the fetid, steaming shitpiles just sitting around so we’z can all join handz across the aisle and sing Kumbaya.

          Oops. Yours was a rhetorical question, right? Sorry. Guess I needed to vent just a little…

          FunnyDiva

          PS, EW, thanks for staying on top of all of this and connecting the dots and stuff. I’d be hopelessly uninformed without you and FDL!

  1. Hugh says:

    The only thing the members of this Administration would respond to is the sound of the closing of their prison cell doors. Since Pelosi and Reid have taken impeachment off the table, they can and do act with impunity.

  2. maryo2 says:

    Isn’t the OPR interested in WHY Cheney “improperly failed to perform an act?” Wouldn’t the reason why determine if the act was of malfeasance versus accidental?

    malfeasance = the commission (as by a public official) of a wrongful or unlawful act involving or affecting the performance of one’s duties

    • emptywheel says:

      Oh, it’s not Cheney who “failed to perform an act” in this case–it’s OLC (though I can understand how it’s hard to keep these loons straight). Aftergood asked why OLC got away with not giving Leonard an answer to his question about Fourth Branch. It should have evoked a similar kind of investigation to the one checkingto see whether John Yoo acted improperly in giving Bush teh go-ahead to tap us all.

  3. Mary says:

    It’s no real surprise, is it? When you have all the suits that there are out there, and no notices from any of the DOJ lawyers to CIA or NSA not to destroy evidence – – – but OPR doesn’t flick an eyebrow, then OPR isn’t really doing any prof ethics oversight. Rampant untruths originating from DOJ, and nada from OPR. Really – the Comey Padilla presser should have received a reaction at least as severe as the Nifong presser, but instead OPR went out and adopted some clams.

    OT, but not. Here is an WOW. A few US Gov lawyers are still concerned with ethics. Unfortunately, they all have been JAG and are therefore much more restricted by chain of command issues in what they can and can’t do. Still, with all the strictures, they’ve put the DOJ to shame – or would have, if the concept of shame still existed in DOJ.

    Ex-prosecutor [chief prosecutor] at Gitmo to be Witness for Defense.

    And it’s Swift’s case where he may be called – Hamdan.

    In a stunning turnaround, the former chief military prosecutor at Guantanamo Bay said Thursday he would be a defense witness for the driver of Osama bin Laden.

    Air Force Col. Morris Davis, who resigned in October over alleged political interference in the U.S. military tribunals, told The Associated Press he will appear at a hearing for Salim Ahmed Hamdan.

    For some background on why Davis is the EX chief prosecutor, take a look at this piece at Horton’s blog today:
    http://harpers.org/archive/2008/02/hbc-90002460

    When you make heroes out of people like Goldsmith and Comey, who tried to hoist Haynes into a lifetime Fourth Circuit appointment, and you don’t look for the ulteriors in motivation for people who glibly and without flinch or tremor cooperate in the consignment to torture, you set the bar far too low.

  4. maryo2 says:

    EXECUTIVE ORDER 13292
    Sec. 6.2. General Provisions –
    (b) The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight Office, shall render an interpretation of this order with respect to any question arising in the course of its administration.

  5. maryo2 says:

    The Prairie View A&M students are an inspiration.

    Perhaps on the first day of predetermined month, we should either request that our pay checks not be auto-deposited into banks or we should withdraw all monies not already pre-destined for auto-bill-pay. We could simply keep disposable income in cash form for a few days.

    An organized run on banks would be a symbolic march that we could perform nationally.

  6. earlofhuntingdon says:

    I especially like the aspect of the Pixie Dust authority that allows the president, or those who think and speak for him, or like Cheney, do his job for him, to alter Executive Orders after the fact. And then only when an act of omission or commission, malfeasance or nonfeasance, is brought to their attention in a manner that they cannot safely ignore. And then without recording it anywhere, much less communicating it. And then changing their mind whenever they feel like it. Is that secret law, or no law at all?

    Shorter OPR, Executive Orders mean only what the president or those exercising his authority (he doesn’t know how) say they mean, neither more nor less. (Thank you, Alice.) I’m so looking forward to an adult working in the White House again.

  7. earlofhuntingdon says:

    Imagine if a drug company could say what its drugs are for, but not tell anyone, and change their minds without telling anyone, and could require everyone to buy them, and had immunity from liability whether or not they worked. Imagine the drugs included contraceptives, and AIDs and flu and plague vaccines.

    That’s the sort of unaccountable authority OPR has just described. It’s just that the liability they are free from is not pregnancy or disease or death; it’s freedom from disclosing what you do and by what authority you do it, or refuse to do it.

    • bmaz says:

      Yeah, well have you seen Scalia’s latest handiwork on effectively eliminating litigation on medical devices? What you describe is effectively where we are headed.

      • watercarrier4diogenes says:

        I’m really puzzled at the 8-1 vote on that. “As long as the FDA has approved the device” is just more ‘trust us’ bullshit. With a Federalist in the WH at some point in the (hopefuly VERY distant future), this will be a nightmare about to become reality.

      • earlofhuntingdon says:

        Haven’t seen it. From comments, I gather that Scalia has turned the FDA’s approval from a presumption that the device is safe to a conclusion of law. Perhaps his Pioneer status as GOP fundraiser requires him personally to cut the income of the entire plaintiff’s bar, regardless of which clients lose out.

        A boon to device manufacturers (I wonder what politicians they contribute to?) does not necessarily benefit anyone else in America. It does put the public at the mercy of an FDA in an administration that prefers religious conviction to scientific fact.

        Sounds like Scalia is feeling upstaged by his son’s record of gutting labor laws and reinventing them as the employers’ handmaiden. This crap has been going on so long, I can no longer remember when I fell down the rabbit hole, but I know I’m still falling.

        • bmaz says:

          You pretty much nailed it on the head. You know, manufacturers don’t really care about the safety and propriety of their products, any products, as it is; remove or emasculate the threat of liability suits and all hell will break loose. This movement is nothing but craven greed.

              • freepatriot says:

                Yeah, exactly, because the Pinto is every bit as good as those disintegrating heart stents……

                that’s not fair dude

                the Pinto was the BEST four passenger stove ever made …

            • emptywheel says:

              MOre than you know. MI is one of (actually, I think the only) state that indemnifies a drug manufacturer if it has FDA approval. So MI is effectively already working under the medical device rules, only for drugs, too.

              • MadDog says:

                EW and bmaz, when you stack the Supremes with folks who mostly spent their entire legal careers representing corporate clients, it is not hard to understand how corporations have risen to the top of the Constitution’s food chain.

                Instead, it is a wonder how “We the People” manage to continue to scavenge even a few Constitutional crumbs.

                Jeesh, I hope they didn’t hear me ’cause then we all might be going hungry tomorrow.

                • bmaz says:

                  The Dem/Kerry failure to dislodge Bush in 2004 is absolutely tragic in this regard. A profound impact likely to burn for 25-30 years.

          • earlofhuntingdon says:

            In an earlier age, profit and greed were good, but industrialists still lived and worked in a community. They had ties to it and sat on local corporate and charitable boards. Their kids went to local schools or at least played with their neighbors, as did their spouses. The community they lived in and others liked them was where their workers, customers and suppliers came from. Those personal ties restrained excess in important ways, for the benefit of many. Those ties are now largely gone or fractured, as derisively dealt with by the legion of management consultant advisers as a vacuum tube television.

            Decisions are made by aspirants to fewer and fewer middle and senior executive slots. Many of them know little of and care less about their communities or their employees, or can’t afford to admit to caring lest their promotion prospects be dampened. Their work force, suppliers and customers are scattered across the globe. They don’t know and may fear the real people who make up their up- and downstream value chain.

            Except for the care and feeding of a handful at the top, employees are managed opportunistically, as the most disposable asset, a development accelerated by rampant and often ill thought out outsourcing. The rise of a generation of managers who’ve known no other way further accelerates that process.

            These developments have the same caustic effects as Newt Gingrich’s strategy in the early 1990’s. He demanded that GOP Congress Critters no longer move to DC, no longer fraternize with the “enemy”, and live lives of constant travel and ambitious desperation, making them more dependent on their GOP big daddies. Orwell’s Winston Smith would find that environment dispiritingly familiar.

            • bmaz says:

              I don’t know if you remember this post and discussion from back in October, prostrategragon was there I see, but we had a pretty interesting discussion on exactly this issue. The following was my opening comment, but the whole thread was really good and inventive, and worth a look back.

              More importantly at this moment, I want to agree with orionATL and EW on the damage done by the corporate personage establishment. I would like to tack on to that thought the corollary effect of the incredibly impenetrable corporate veil we have afforded corporate ownership and management. The two combined have created ravenous corporate entities concerned with, and motivated by, nothing but sheer greed. Anything goes if it increases, or could if things worked out increase, share price and management compensation. Remarkably, and quite telling, even actions that will in the long run either cripple the company or lessen relative value, are acceptable and increasingly even desirable if they will drive up the price and value now. The result is that corporations no longer have long term interest and motivation to think of their employees, local communities, our country, the environment and the future. Somehow, we have to engineer a heart, soul, morality and conscience back into corporate entities. And yes, I understand there was never much of this factor to begin with, as the railroad robber barons and so many other examples prove, but there must be a way to make them less rapacious than what we have now.

              I really do think that altering the status of corporations as persons, cutting back on the strength of the corporate veil protection and perhaps altering the tax structure and treatment of corporations in some combination might help.

              • earlofhuntingdon says:

                I remember the thread. Good excerpt. Limiting redefining the corporation’s legal status would be a healthy step for a civil society. Implementing it would be one of the most divisive reforms since the income tax. (But where would we be without that?) A great topic that we should expand. Initial thoughts:

                “Shareholder democracy” is a lie. It exists only when the corporation is about to go under or gobble up another one. It is practicable only for the largest and most resource rich shareholders. That includes pension funds, but not most wealthy individuals, let alone me and my hundred shares in a 401(k).

                Most corporate boards provide oversight that’s about as effective as Congress’ oversight of Dick Cheney. Yet, both remained gainfully employed and well-compensated. Their members are picked by the CEO for their cooperative attitude or status, eg, a Condi Rice: the twofer, a woman of color, beloved of HR staffs and consultants [politically incorrect, also true]. Like that example, they have impressive resumes, but are often too ambitious or pre-occupied and so have little time to do more than read the sanitized reports given them by the CEO’s staff (or the nearly as sanitized reports from outside auditors and legal staffs).

                Many board members do work exceptionally hard; I’m sure even Enron and Delphi had ones like that. But any board member that becomes too inquisitive is not invited back. They’re insured from liability for all but the most egregious intentional conduct, so they go along to get along.

                Corporations are controlled by and run for the benefit of their top managers, who are shrinking the employment and compensation pie to their small circle. Everyone else knows they’re doing twice the work they did when they started out: cell phones, notebooks, internet. Many essentially work 24/7. None but a handful at the top are compensated for the extra work. Hence, the gains in productivity, but not in worker compensation.

    • readerOfTeaLeaves says:

      Jeez, bmaz – don’t be such a tease. Maybe Pig Missile has some extra Pixie Dust set aside for Rove.
      It’s actually Dana “Pig Missile” Perino’s interpretation, offered via Sam Brownback via Fred Fielding. But I guess one Pig Missile = President these days.

      Too bad Pixie Dust isn’t like Iocaine Powder (see: The Princess Bride), which causes the ’smart guy’ , who believes himself smarter than everyone else – as well as invincible – to cavalierly choose the poisoned goblet that kills him.

      Vizzini (paraphrase): “A great fool would place the poison in his own goblet, because he would know that only a great fool would reach for what he was given. I am not a great fool, so I can clearly not choose the wine in front of you…But you must have known that I was not a great fool, so I can clearly not choose the wine in front of me…”

      But come to think about it, perhaps political persecutions have a way of boomeranging back on their instigators… so perhaps that Pixie Dust may have a certain ‘Iocanish Whiff’ about it eventually? One hopes.
      As for the Six Fingered Man… hmmmm…. gimme a ‘C’… gimme an ‘H’…

  8. masaccio says:

    I wonder if the Russian intelligencia felt this way about their government in the ’70s: The pretense of law hiding a stinking corpse of a democracy.

  9. felixculpa says:

    They certainly love their games. Sometimes it has the quality of (cow) pie-throwing, as in this instance seems to be the case. But there’s kind of an edge, which intrigued me in Makasey’s little jig of death of justice before the Senate and House Committees, in particular— of course it’s probably just easier to see when you can see to judge the delivery— his smile suggesting a (contemptuous) dare: If you don’t like this, well then go ahead and make better laws, you clowns. But the pervasive criminality, manifest and implicit, defended with smirking contempt if often with monumental ineptitude, knowing they’re known to be lying! Stalin’s USSR does seem an appropriate analogue; Pakistan has suggested current parallels (separated at birth; Bush/Musharraf?) and, well, the comparisons just get worse, with justice and security reduced to rhetorical tools for oppression. Augean stables on steroids; I it had nothing else to do there would be enough to do for the next four years just shoveling out and disinfecting.
    Mary’s WOW moment: Now that’s Thrilling! Thank Heaven for strong spirits set on justice.

  10. Rayne says:

    OT — Jeepers, I am so behind on my reading these days. We probably should have discussed this little gem a few days ago.

    Private contractor, spilling info about their contracts related to data mining and likely domestic spying. Sheesh…why is the administration even playing games with classification when their contractors are going to give away the farm anyhow?

  11. prostratedragon says:

    This crap has been going on so long, I can no longer remember when I fell down the rabbit hole, but I know I’m still falling.

    I’m reminded of an old (Johnny Hart?) comic. It consisted of two identical panels showing some people in the dark, in assorted attitudes of falling. The left panel captioned something like “People falling in a bottomless pit.” The right one: “Six months later.”

  12. bmaz says:

    Profiles In Courage:

    The former chief military prosecutor at Guantanamo Bay, Cuba, said yesterday that he will be a defense witness for the driver of Osama bin Laden.

    Air Force Col. Morris D. Davis, who resigned over alleged political interference in the U.S. military tribunals, said he will appear at a hearing for Salim Ahmed Hamdan.

    “I expect to be called as a witness. . . . I’m more than happy to testify,” Davis said. He called it “an opportunity to tell the truth.”

    • freepatriot says:

      he’s wasting his time

      they’re running a bunch of “YOU CAN’T WIN” trials

      I would call them Kangaroo courts, but the kangaroos might get pissed, and those things can throw a punch

  13. prostratedragon says:

    [Random musing]

    In an earlier age, profit and greed were good, but industrialists still lived and worked in a community. They had ties to it and sat on local corporate and charitable boards. Their kids went to local schools or at least played with their neighbors, as did their spouses. The community they lived in and others liked them was where their workers, customers and suppliers came from.

    These places were once called “towns” or in some cases “cities,” gatherings of “citizens.” Like in Dante, or something.

    [/rm]

  14. BayStateLibrul says:

    Did the Telecoms wiretap pro bono?

    This is a quote from Jello, in yesterdday’s WSJ harangue:

    And what did they get for their trouble? As Mr. Rockefeller put it last week, “What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don’t have to do it, because they do have shareholders to respond to, to answer to.”

    Is this correct?
    Gratis?

    • freepatriot says:

      Did the Telecoms wiretap pro bono?

      uhmmm

      from what Iv’e heard, the telecos CUT THE TAP at least once cuz george didn’t pay the bill

      so we’ll guess that the answer to your question would be NO

      • BayStateLibrul says:

        Thanks,

        My Repug neighbor, who I run with, stuck this up my arse cuz
        I told ‘em earlier that we ARE paying the Telcos (since when
        do we give away freebies… he thinks the Telco did it for free
        due to their extreme patriotism…)
        Any links will be helpful…

        • bmaz says:

          BSL – Jello Jay said that? I can understand the Repug neighbor, we got those here too, they often aren’t the brightest bulbs in the fixture, but Jello Jay?? He is now flat out as patently dishonest and hysterical as Bush and Cheney. Unbelievable. Freepatriot is right about the turning off the tap because of the government being behind in paying the monthly bill. So, there is that. You can also refer to 50 USC 1802, under the FISA provisions, which provides:

          The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

          There are similar provisions under CALEA. So, it is total fictional BS that the telcos are not paid; they are paid, and handsomely. Why do think Qwest had such problems because Nacchio didn’t get in on the lucrative contracts? This is the dumbest argument I have ever heard, and it is especially galling coming out of Jello Jay.

    • Rayne says:

      They get to remain in business, with a stranglehold on our telecommunications systems.

      And for all we know, they have the ultimate source of competitive intelligence on our telecommunications consumption, let alone the competitive intelligence for ALL business in America.

      Rockefeller’s an idiot.

  15. skdadl says:

    OT: Turkey launches ground incursion into Iraq

    Thousands of Turkish troops have crossed into northern Iraq for a ground operation against separatist Kurdish rebels, the military confirmed Friday.

    Meanwhile, the U.S. military said Friday that they had been assured that Turkey would do everything possible to avoid “collateral damage” to innocent civilians.

    “Multi-National Forces-Iraq is aware Turkish ground forces have entered into northern Iraq, for what we understand is an operation of limited duration to specifically target PKK terrorists in that region,” Rear Adm. Gregory Smith, a U.S. spokesman in Iraq, said in a statement.

    “The United States continues to support Turkey’s right to defend itself from the terrorist activities of the PKK and has encouraged Turkey to use all available means, to include diplomacy and close coordination with the Government of Iraq to ultimately resolve this issue.”

    Damn and drat. I keep trying to believe in Erdogan, but this is not making it easier.

    • bmaz says:

      Sounds like the sovereign nation of Iraq has some invading nation-state terrorists and some in-country terrorist enablers on their hands. Bush’s reaction would be to slaughter the invaders and place the in-country enablers in a gulag to be tortured, killed and disappeared. If that is good enough for the moral Christian leaders of the free world greatest democracy evah, it ought to be cool for the Iraqis. Right?

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