When All Executive Orders Turn to Pixie Dust

I promised to respond to Marty Lederman’s response to Sheldon Whitehouse’s speech today; though I should admit right away that the Libby non-appeal has changed my approach dramatically. So you won’t see everything today.

Marty assesses the three propositions that Whitehouse has had declassified and is unimpressed.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that’s what he did yesterday. He expressed incredulity about all three. But there’s a reason the Administration gave him the green light on those three matters — because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below). There are undoubtedly very audacious and disturbing aspects of many of those OLC memos — such as the arguments that the AUMF superseded FISA and that the President has a constitutional right to violate FISA; and almost certainly descriptions of how much broader and more indiscriminate the NSA program was before Jack Goldsmith reined it in a bit in early 2004 — but the three statements Whitehouse identified, standing alone, are not terribly noteworthy, at least not from a constitutional perspective. [my emphasis]

Marty is assessing these, of course, as a former OLC lawyer. And he finds, for the most part, the three propositions are constitutional. Let me be clear that, as a non-lawyer, I’m assessing the propositions by what they suggest about Bush’s activities, which is part of the difference between Marty’s calm and my outrage. I’m going to come back and look at the two propositions Marty is least excited about (numbers 2 and 3 in Senator Whitehouse’s list). For now, though, let me jump ahead to the one that both Marty and I were most troubled by:

"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."

This is actually the most interesting and disturbing of the three quotes, but it’s not because of any constitutional problem. OLC is correct here that the President has the power to decline to follow a presidential E.O. (assuming there is no statute requiring that he adhere).

Nevertheless, there does appear to be an outrage here. Apparently — and this is real news of the Whitehouse statement — the President decided to secretly ignore Executive Order 12333, which, among other things, has long been the only real source (other than Fourth Amendment) of legal protection of the privacy rights of U.S. persons overseas vis-a-vis surveillance by the federal government. This is a gap in FISA that the 1978 Congress said it would get around to closing — but it never did. And so the only thing standing between U.S. persons overseas and their own government snooping on them has been E.O. 12333.

If the President publicly rescinded 12333, there would be a huge outcry. It would prompt Congress to act immediately.

Which is presumably why he didn’t do so in public. Whitehouse suggests that the President secretly transgressed 12333. If so — if in fact the President chose to ignore 12333 without notifying the public or Congress, it’s quite outrageous — constitutional bad faith, really, to announce to the world that you are acting one way (in large part to deter the legislature from acting), while in fact doing exactly the opposite.

Marty is unexcited by the legal implications of this, but definitely excited by the ethical implications of this–Bush appears to have been willfully ignoring EO 12333 without telling us. Just as a teaser, here is some of the language from EO 12333, both the passage Whitehouse and Marty are referring to, and the rest of it (for all we know, that’s Pixie Dust too).

These procedures shall not authorize:

(a) The CIA to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance;

(b) Unconsented physical searches in the United States by agencies other than the FBI, except for:


(c) Physical surveillance of a United States person in the United States by agencies other than the FBI, except for:


(d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means. [this is the bit that, per Whitehouse’s comments, Bush appears to have willfully ignored]

This EO also prohibits covert infiltration of US organizations, human experimentation, and assassination.

Now granted, many of these surveillance activities are already forbidden by statute, so they remain illegal, even if Bush has declared all of 12333 Pixie Dust. But for those that aren’t specifically forbidden (such as assassination), if Bush uses his Pixie Dust on those parts, he can make them legal. If Bush has decided he wants to violate these rules, he is only limited by laws explicitly prohibiting a particular activity.

Now, as it happens, EO 12333 overlaps significantly with existing law, so by making this Pixie Dust, there’s not that much Bush has made legal. But this opinion appears to apply to all EOs–they’re all Pixie Dust in Bush’s hands, if he so desires. So when Bush signs an EO that is designed to provide guidance for existing laws, the laws themselves are susceptible to becoming Pixie Dust. Consider the Executive Order Bush signed in July "defining" the limits on the CIA’s interrogation program:

Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3. (a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.

(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:

(i) the conditions of confinement and interrogation practices of the program do not include:

(A) torture, as defined in section 2340 of title 18, United States Code;

(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;

(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;

(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);

For all we know, this is nothing but Pixie Dust. I’m not saying it has been turned to Pixie Dust (yet)–but with that OLC opinion in his pocket, Bush can make it into Pixie Dust at any moment. And considering Bush’s promise to veto the specific prohibition for the CIA against torture, we ought to assume this EO is nothing but Pixie Dust, yet another specious claim that the US is not torturing, all the while we secretly are.

See how fun it is to live in a land ruled by evil Pixie Dust?

  1. behindthefall says:

    Oh dear. I am being very, very slow tonight. What is ‘Pixie Dust’ in this context? Presumably it does not help somene to fly …

    • MadDog says:

      Just watched that Brian Ross ABC News exclusive. Twas a bombshell! And they said that Brian would have more of this exclusive on ABC’s Nightline tonite.

  2. MadDog says:

    EW, thanks for re-inflating my our outrage!

    For some reason (perhaps because of Marty’s former tenure in the OLC), I didn’t get the sense that Marty was viewing Senator Whitehouse’s “findings” in quite the same way Senator Whitehouse, and all of us were.

  3. scribe says:

    On the main topic (sorry for my OT post), I suppose it’s fair to say the only reasons Lederman is unsurprised are because he’s been working in the hothouse that is OLC, and because I doubt he ever thought someone (Whitehouse) would have the balls to actually suggest that the conventional wisdom (at least among OLC attorneys) as to Executive power is so much horse manure, and to do it in a way which resembles nothing so much as the beginnings of the Legislative branch pushing back to retake it’s powers from the Executive.

  4. readerOfTeaLeaves says:

    Pixie Dust, rephrased:

    “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality– judiciously, as you will– we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors… and you, all of you, will be left to just study what we do.”
    http://www.nytimes.com/2004/10/17/mag (suskind)

    So, if you believe, ‘clap your hands.’

    All the more reason to hope that professionals within the federal government are quietly collecting evidence, backing up server files, and keeping that ‘Tick… tock… tick… tock’ at low enough decibels so that Bush, Cheney and the neocons and RepubliCONs don’t know what’s lurking.

    Pixie Dust, indeed.

  5. selise says:

    So you won’t see everything today.

    i’m quite sure this form of torture ought to be illegal. at least for bloggers of marcy’s quality.


  6. behindthefall says:

    And I’m with Whitehouse on these three points. Balkinization’s ho-hum surprized me when I first read it and still does. The three point taken together describe the kernel of an absolute dictatorship, and if they can be seen as unremarkable and constitutional, then our real situation has slipped a long, long way from what I thought I learned in civics. Is this how things have been operating since, what, the 60s? The 50s? The 1800s?

  7. emptywheel says:


    Well stated.

    More generally, I’m outraged bc Bush went to the trouble of getting this in writing. And there is strong evidence that this was not a one-off. There is good reason to believe he has Pixie Dusted some other EOs (including this one on torture).

    So Marty hasn’t gone where I’ve gone–which is to consider more than just one instance of “constitutional bad faith” and consider what might be systemic instances of constitutional bad faith.

  8. Scarecrow says:

    What Marcy is describing as “pixie dust” is what Lederman might, I suspect, describe as “unfettered discretion.” If the President has the discretion to issue an EO or not issue one on a given topic, then the President can, at any time, revise, repeal, extend or replace any existing EO. Lederman is just saying, yeah, that’s true, it’s always been true, but that’s not the problem here.

    The problem is that Congress has left the executive with the discretion to protect or not protect rights not to be spied on by NSA, or the discretion to allow CIA to torture or not torture. It’s totally up to Bush to decide. The prior EO said we wouldn’t do it; but at any moment, Bush can change his mind and allow it. Lederman is saying, I think, that’s it’s irresponsible for Congress to leave such discretion to a President on matter this important, especially when we know Bush will be irresponsible in exercising his discretion and not telling us what he did on something this important.

    • behindthefall says:

      What Marcy is describing as “pixie dust” is what Lederman might, I suspect, describe as “unfettered discretion.” If the President has the discretion to issue an EO or not issue one on a given topic, then the President can, at any time, revise, repeal, extend or replace any existing EO. Lederman is just saying, yeah, that’s true, it’s always been true, but that’s not the problem here.

      Thanks, scarecrow. That’s more or less what I’d concluded after a few reads. “Unfettered” is at the heart of it, isn’t it? Unfettered by Congress. Unfettered by decisions of prior presidents. Unfettered by his own prior decisions and actions. Basically permitted to be a spoiled brat with the world’s biggest toys, some of which toys being the principles in accordance with which we innocents thought The People’s government was operating.

      Did not know that Lederman had worked in OLC, but he was been too close to the blowtorch without his visor — he has lost a significant part of his sight, I’d say. Blinding wrongs seem normal, hardly elicit a blink.

    • emptywheel says:

      Yeah, there was a part of me that read his cite of Dellinger, and started yelling, “well that’s how we got in trouble with the refusal to hold someone in contempt–a crappy Dellinger opinion.”

      Sure makes me want someone besides Hillary as nominee.

  9. emptywheel says:

    Well said, Scarecrow, thanks.

    And I think that’s largely what Whitehouse is trying to say. I do wonder whether McConnell’s op-ed today was a response to Whitehouse. Could just be regular pressure. But McConnell has fought hard against including a specific prohibition on spying on Americans overseas. I would hope that Whitehouse’s speech convinced some people on that issue.

  10. Scarecrow says:

    They guy who claims he interrogated the first al Qaeda guy captured in Afghanistan is being interviewed on ABC news. He says we shouldn’t be doing waterboarding, even though he used it.

  11. Scarecrow says:

    Oops, I misunderstood; the guy ABC is interviewing was part of the team but didn’t actually do the waterboarding, he says. But he says it was worth it, but wrong.

  12. MadDog says:

    Oooh, oooh…more goodies on CBS News about that waterboarding. David Martin reports “exclusively” that the CIA Officer Kiriakou and one other CIA Officer “refused” to use some “harsh interrogation techniques”.

    Kiriakou was the “exclusive” that Brian Ross of ABC News reported on.

  13. EvilParallelUniverse says:

    You don’t need to be a lawyer to understand the law. In fact, the best way to look at the law is from a common sense perspective, and many non-lawyers have more common sense than lawyers. Non-lawyers are also more likely to be less sophistic (lawyers who like being lawyers like to argue points whether they ultimately make sense or not – it’s the game after all, and it’s about winning, not what is right).

    Anyway, based on Whitehouse’s triad regarding the Preznit’s claims to power, I’d go with your common sense approach that they are a “big deal” in that that they do violate the constitution (and perhaps statutory law).

    To agree with Lederman is to believe the Preznit (and those who work for him) are above the law and get to make up the law.

    To quote the great legal thinking George Carlin “Why are there three” flammable, inflammable and unflammable Executive, Legislative and Judicial? Either the other branches of government have functions and power (that checks and balances thing) or they don’t, and the common sense answer is they do b/c otherwise teh founding fathers would have simply created the Executive.

    So, even if you are not a lawyer, your understanding is on significantly stronger intellectual/constitutional/legal grounds then Lederman’s or anyone else who would argue that the preznit is a king.

    So, don’t back down from what you think the real issues are.

    I’ll add that anyone who throws out the idea that Chimpco’s actions WRT Executive power are really questions about potential ethical or disciplanary lapses on the part of the preznit’s lawyers is trying to keep your (and our) attention off the real issue – Executive illegality. (Much as the CM likes to talk about the CM in fact – same trick).

    • sojourner says:

      I’m a little late to the party, though I have been reading this from work.

      There is a lot of sh*t hitting the fan right now, to be sure. I don’t think the odor has quite permeated the country, yet. Your statement that “I’ll add that anyone who throws out the idea that Chimpco’s actions WRT Executive power are really questions about potential ethical or disciplanary lapses on the part of the preznit’s lawyers is trying to keep your (and our) attention off the real issue – Executive illegality” does not reach far enough.

      I used to believe that conspiracy theorists were nut jobs, but I guess I have become one of them (either that or I am getting old). The thing is, if you look back over the last seven years, I really think that there has been a conspiracy to totally undo our country for individual gain. It is not over yet, either.

      As I was reading Whitehouse’s speech the other day, and his discussion of the secret legal opinions, it struck me that they began rewriting the laws the moment that they got into office — and maybe even before then. If various sources had not begun to call “bullshit” on some of what was going on, we would all be neocons for better or for worse.

      I know that sounds extreme, but these idiots really believe that they are smarter and better than anyone else. I just hope that I get to see them all tried for treason, because that is what it amounts to.

      • Martiki says:

        Whether or not it was intentional (and I’m inclined to agree that it was) they have indeed accomplished the undoing of our country to their advantage. We are left with a shell.

  14. LS says:

    No matter what happens regarding this whole debacle…the truth is already crystal clear. Witnesses have now come out and admitted that they did it. Bush ordered and authorized torture, and his orders were executed. The Geneva Conventions were violated by Bush.

    Let’s throw some pixie dust their way, and impeach the SOB and Cheney . America doesn’t torture, Bush and Cheney do.

    This is so despicable.


  15. MadDog says:

    More on the Brian Ross “exclusive interview” with CIA Officer Kiriakou:

    “It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him.’ Or, ‘I’m going to shake him.’ Or, ‘I’m gonna make him stay up for 48 hours.’

    “Each one of these steps, even though they’re minor steps, like the intention shake, or the open-handed belly slap, each one of these had to have the approval of the deputy director for operations,” Kiriakou told ABC News.

    Note that James L. Pavitt was a 31-year veteran of CIA who has served as the Agency’s Deputy Director for Operations (DDO) from 1999 until the summer of 2004.

  16. selise says:

    so at least two people involved in the torture have come forward (Kiriakou and at least one person for cbs’ “exclusive”), on the same day and to two different news networks? the day after a multi-sourced wapo article?

    anybody going to try to tell me that there isn’t something going on behind the scenes?

    coinkydink? i don’t think so.

  17. radiofreewill says:

    This is the Magic Wand Clause (#1) of Whitehouse’s Encyclopedia of UE Super-Powers (aka Bush’s Lucky Charms) – Do as I Say, Not as I Do.

    With it, Bush can ’selectively’ wave his wand, and What is the Law for US, and outwardly for him, becomes Pixie Dust to hide in and do just the opposite – magically cloaked from investigation!


    Can’t Torture? Need Warrants? IIPA Violation? Law and Order USAs? Responsiveness to Subpoenas? Reporting Requirements? Archiving E-mails? Pioneer Abramoff?

    Enough Criminality to make Lex Luthor shit diamonds!

    Chimpy pulls out the Magic Wand and waves it around…Poof!

      • BayStateLibrul says:

        Calling Dana Peroxide…

        Q How does this square with the President saying, anybody who leaks in my White House, anybody who doesn’t follow the law, is not going to work for me?
        MR. SNOW: Well, once we get — once we get final determination on that, we’ll deal with it.

        • Neil says:

          We have the final determination, let’s deal with it. Who at the White House is standing in the way of Patrick Fitzgerald turning approapriate case files to the Congress and why?

            • Neil says:

              Who at the White House is standing in the way of Patrick Fitzgerald turning approapriate case files to the Congress and why?

              That’s what I think but I want the question asked repeatedly in the WH press room.

  18. behindthefall says:

    This is a little like going back and seeing if you can still derive a geometrical relationship … such as, that lines drawn from any point on a circle to any diameter not including one of those point form a right angle.

    Now, any monarch would be proud to have Whitehouse’s Three Points working for him or her; they pretty much state that all power emanates from his or her person, and that’s what the the word ‘monarch’ says: mon- (one) -arch (seat of power), I imagine.

    But, we started this country on the presumption that power arose from The People. That is the polar opposite from the presumption underlying monarchy. The People, we said, have ‘inalienable rights’: they are intrinsic, they cannot be separated from the fact of a person’s existence.

    Where does the monarch think his/her ‘right to rule’ comes from, if not from The People? Not from any subgroup of The People, because those people could only have gained that from The People as a whole, eventually: you’d have a ‘res publica’ instead of a ‘mon-arch-y’.

    From within him- or herself? Might confers right? Works for wolves, right? But not quite what we had in mind here; lacks gravitas. Can try to make it hereditary, but it is always about power, masked or otherwise.

    Well, from above? A ‘divine right’? Oh, good. Revolt against the monarch and you’re rebelling against Heaven. That’ll be useful. You might be able to sell that one for a good, long time. We could say things like, “The King is God’s representative on Earth. The State is Religion; Religion is the State. We are a Free People; the State lets us be Free. This Freedom is possible because of Religion; Religion gives us our Freedom.”

    Oh. Wait. Didn’t I just hear Romney saying something like that??

    Now I’m scaring myself: public discourse and deeply hidden documents are conspiring to fashion us a President who has the Powers of a Monarch and derives those Powers from God.

    1776 or so to 2007 or so — not a bad run.

  19. CTuttle says:

    Tweety had Isikoff on earlier, the two were astounded by Libby and the Tapes, at one point, Tweety quipped; “At every juncture this WH has stone walled or refused any testimony when it would’ve been easier to come clean…” D’oh!

  20. BayStateLibrul says:

    On KO, Turley called for an Independent Counsel… six crimes.
    Please listen to Biden.
    More secret hearings tomorrow…
    We live in a police state..
    This is so important, yet where is the outcry?

    • BayStateLibrul says:

      Lying, perjury, obstruction of justice, torture, crimes against thr
      Geneva Conventions… I missed one.
      Close door hearings with General Hayden tomorrow and Wednesday with
      the Intell committees of the Senate and House…
      I hope they take notes…

      • selise says:


        i’d call those hearings closed, not secret (they are even on the schedule). the house and senate intel committees have closed hearings almost every week (frequently more than once a week).

        • BayStateLibrul says:

          Also, Turley says perps should be lawyering up…
          Perps is my categorization, not Turley’s.
          I hope John Dean comments soon (maybe he is on vacation)

          • bmaz says:

            I rarely say this about Turley, but I thought he was just a tad histrionic about the possibility of criminal charges against these guys. I would be pretty hesitant traveling abroad if I were them, but somehow i am having a hard time envisioning criminal charges being filed; especially by this Administration. Lawyers might not be a bad idea to prep them for any testimony they may be requisitioned for; but criminal charges – eh, I dunno.

  21. oldtree says:

    another analogy, pixie dust either is or isn’t. And it can be magic.
    sure will be interesting when the quiet members of our intelligence community begin releasing more of the information (copies) that will be sought by the Hague. Congress has more than enough to know they have been usurped and don’t appear to care when their job is quite clear.

  22. bobschacht says:

    What we’re dealing with, here, is the pixie dust that was used to out Valerie Plame Wilson, n’est ce pas? Bush approved it, Dick instructed Libby, and Bush’s approval made all that bothersome stuff about informing the head of CIA first, etc., just so much busybody bureaucracy.

    The pixie dust model is just SO George Bush. He never wanted to be bothered with consistency, or who might get hurt. How far are we here from “L’Etat, c’est moi”?

    Bob in HI

    Oh, P.S. Thanks, Marcy!

  23. CTuttle says:

    …it struck me that they began rewriting the laws the moment that they got into office…

    They started wiretapping before 911… The Patriot Act was passed within a week of 911, en toto… Hmmm… Conspiracy Theory?

    • sojourner says:

      Precisely! I try hard not to let myself think about it too much, but there is just too much shaky stuff now about voting, justice, laissez faire for business (and my credit card companies are loving it!) and just not a whole lot of concern about the rule of law. I guess what it boils down to is that we are no longer a bright shining object to the rest of the world — we have become another corrupt banana republic that is run for the good of the few, and to hell with anyone else.

  24. emptywheel says:

    I’m kinda with bmaz (though in safe company, if a Defense Attorney is saying these guys aren’t going to be charged).

    They can’t be charged in this country–not for the torture, anyway. And I suspect, somehow, BushCo bought off on the destruction of the tapes. So the ones who did it only have to worry about the vacation to Spain they had planned.

  25. OldCoastie says:

    ew – I’m thinking they won’t be charged with what we know now… but the shite continues to hit the fan – this may only be the opening salvo…

  26. [email protected] says:

    Folks, the conspiracies started long before this particular family took over. If you will recall, John Dean describes the attitude of the Nixon White House toward forcing justices off the Supreme Court in a well documented book. The conspiracies were around trying to assassinate FDR and create a private army for the Morgan interests; Smedley Butler, a three times MOH winner, was contracted to create a private army and remembering his oath blew the whistle. No, there will be no charges, much less trials. We must depend on the Gods of Conscience to prod the conscientious into action on our behalf. Otherwise we are well on the way to a coup of private military and lawless political families; the establishment of an oligarchical dictatorship.

  27. Minnesotachuck says:

    Update from Larry Johnson on inside poop on the destruction of the tapes:

    For starters tt appears that the June 2005 decision of the Italian judge to issue arrest warrants for C.I.A. officers and contractors involved in the kidnapping of Hassan Mustafa Osama Nasr in 2003 may have been the precipitating incident convincing Jose Rodriguez that Agency must destroy video tapes of terrorist interrogations. That operation was conducted with the full knowledge and approval of the Italians. If the Italians could flip on us that meant anyone could.


  28. lukery says:

    Val Plame was on the Beeb’s Hardtalk today (30 Mins interview)

    It isn’t up on website yet (but will be)

    I haven’t followed the details on the case as closely as most here, so I’m not sure if this is news or not, but Val seemed to indicate that the phone call to Val’s associate that resulted in JW being sent to Niger came from the Veep’s office.
    (most of you will hate the interviewer for this performance, but the show is usually quite good)

  29. earlofhuntingdon says:

    Marty’s lack of excitement is puzzling and overly literal.

    Whitehouse describes three elements in the White House’s operation by double secret codes, not by published laws. They seem designed to avoid not just legal limits on executive behavior, a Cheney bete noir, but avoiding any kind of paper trail about what was done in the first place, whether or not compliant with law in general or executive orders in particular.

    Doing things in secret reduces the odds of criticism becoming informed or widespread enough to stop or bend their behavior. Keeping the legal “foundation” for their actions secret, seems a subset of this. That such reasoning “stands” (but remains secret and, therefore, unchallenged) allows any number of executive actors to claim their decisions were taken under color of law. That permits them to argue, among other things, that any violation of law of theirs was not knowing or intentional. That can either gut the prospects of criminal conviction or severly mitigate punishment.

    This all seems part of an elaborately constructed “stay out of jail” card from the Cheney Monopoly Game. It’s not a credible description of executive authority or record of executive conduct; it is explicitly designed to avoid those very things.

    • Leen says:

      Glad your linking to Larry. Yesterday someone I believe Rick objected to my links to No Quarter USA.

      Larry clears a great deal up in ones mind.

      • phred says:

        Leen — the objection yesterday wasn’t to the links, but to your failure to discussion the salient points specifically and how they relate to the topic at hand. For example, here perhaps you can be specific on what he clarified for you that you hadn’t understood before. That would contribute to the discussion here, and would hopefully shed some light on something the rest of us have missed. Otherwise, it’s just a hat tip to Larry, which may be justified, but isn’t directly informative.

        • Leen says:

          Bull. There were other links and he did not object to those and demand someone make comments about how they applied to the discussion. I don’t want to argue about this. But there was clearly a double standard going on,. And clearly folks started going to Larry Johnsons site to get more info about the tapes.

            • Leen says:

              this will be my last comment about this. Bull! His comment was directed at me about the Larry Johnson links…there was a double standard. For the second time I will drop this I hope you can too. We disagree and that is ok

          • selise says:

            imo, there was no double standard.

            usually people won’t object the first, second or even third time i do something that irks them. that’s why i’m inclined to take all such complaints seriously (doesn’t mean i’ll agree – just that i think they deserve some serious thought).

            just because someone else has done the same (or similar) thing, it does not mean there is a double standard – it probably means that the commenter’s personal threshold has been crossed, and rather than stay irked a request was made.

            that’s why i recommend focusing on the content of the request – and asking ourselves: “would honoring the request help everyone enjoy the conversation more?” – no need to take it so personally. when a request like that is made, i take it seriously too – even when it’s not directed to me – because it may have been my earlier comments that helped create the frustration the commenter was finally making known.

            it’s up to all of us to do our best to comment in ways that others find useful (or at least not objectionable)…. and one of the ways we can do that is to respect and take seriously other commenters requests.

            • phred says:

              Thanks for trying selise — you are far more eloquent than I : )

              By the way, kudos on making the Whitehouse speech so broadly available on-line. I really appreciate all of your efforts (particularly with respect to posting the hearing schedule) to make our government more accessible to the public. Thanks so much!

  30. bigbrother says:

    impeach now call pelosi and say get it on or step down…same with Steny the pork Hoyer. It is now time or all the dems are culpable

  31. TomDaaiTouLaam says:

    What Marcy is describing as “pixie dust” is what Lederman might, I suspect, describe as “unfettered discretion.” If the President has the discretion to issue an EO or not issue one on a given topic, then the President can, at any time, revise, repeal, extend or replace any existing EO. Lederman is just saying, yeah, that’s true, it’s always been true, but that’s not the problem here.

    Now I’d agree that Congress leaving excess discretion to the President is a bad thing, especially for the current one with repeatedly bad judgement.

    But I thought the item out of Whitehouse wasn’t that the President could revise, repeal, fold, spindle, etc. an existing EO, but that the President did not have to revise, repeal, extend or replace an existing EO, but simply ignored portions of existing EOs without issuing a revision, repeal, extension or replacement?

  32. perris says:

    yet another specious claim that the US is not torturing, all the while we secretly are.

    but it’s no secret we are

    it’s publicly known fact

    I believe we now know why pelosi has “impeachment off the tabole”;

    it’s because she is complacent and possibly an accessory to the crime

    and I take issue with the restriction whitehouse places on himself;

    I do not believe a person can be given “security clearance”, finds damaging facts that place our government at peril of coup, that they are not only allowed to violate their “clearance protocol” but are constitutionally bound to violate that protocol

    there are two potential crimes, one would be “violating security protocol” and the other would be “complacent in crimes against America”

    the latter is far the worse crime and needs to be addressed long before the former is even considered


  33. radiofreewill says:

    OT Hillary does not want Bush to get Impeached – she’s afraid that Impeachment would lead to a Gore candidacy and Victory.

    So, rather than breaking with Lieberman, and disavowing her Kyl-Lieberman Vote, she’ll hold-on to any hope to keep Bush in Office.

    She’s not the one.

    Impeach and Elect Gore.

    • IrishJIm says:

      On the contrary. She does not want Bush impeached because she knows that Cheney would be impeached simultaneously and that would allow Pelosi to be the first Woman President in the US. HRC absolutely cannot allow that to happen. You see she is on a course with destiny. /snark.

    • Leen says:

      Gore’s acceptance speech yesterday made me weep for all of the people who would be alive today (both Iraqi and Americans) if we had not had a 2000 Supreme court Judicial coup. It really had me weeping.

  34. selise says:

    it occurs to me that one of the qualities of the pixie dust method of law making (or more accurately, law unmaking) that must appeal to cheney is that it leaves so little evidence of it’s use.

    where ever we find broken laws, bushco can claim that they weren’t really broken – it was the pixie dust. and how are we to say otherwise when pixie dust leaves no trail?

  35. selise says:

    marcy, please excuse the cross-posted comment:

    holy cow. i don’t know how this happened, but somehow that youtube (in 2 parts) i made of sheldon whitehouse’s senate floor speech on friday has made it’s way to digg – it’s now #6 on the list of most popular “world and business” videos of the last 24 hours with 564 diggs.

    all i did was convert the real player webstream (that whitehouse’s staff posted on their website). i think there’s a real hunger in the country for this kind of straight talk about bushco’s lawlessness.

  36. radiofreewill says:

    I hadn’t thought about that, IrishJim, but you’re right. That would make Hillary more calculating than authentic, as a Leader, at a time when we need truly Authentic Leadership.

    Hillary is just another front-momma for the Agenda – she ought to wear a driving suit to her press conferences, all badged-out with the logos of those who own pieces of her.

    We don’t need a female Bush, whose sense of expediency knows nothing of the moral courage to do the right thing, instead of the scripted thing.

    Gore clearly has Moral Courage.

  37. drational says:

    I think this passage of 12333 is equally important to Whitehouse:


    The Attorney General hereby is delegated the power to approve the
    use for intelligence purposes, within the United States or against
    a United States person abroad, of any technique for which a warrant
    would be required if undertaken for law enforcement purposes,
    provided that such techniques shall not be undertaken unless the
    Attorney General has determined in each case that there is probable
    cause to believe that the technique is directed against a foreign
    power or an agent of a foreign power. Electronic surveillance, as
    defined in the Foreign Intelligence Surveillance Act of 1978 (50
    U.S.C. 1801 et seq.), shall be conducted in accordance with that
    Act, as well as this Order.

    Because it reaffirms respect for FISA, and indicates that EO12333 is the standing executive order governing surveillance, and only when the US person is deemed a foreign agent.

    With FISA and 12333 trashed, nothing stopped them from wiretapping US persons serving as soldiers, contractors, NGO employees, and of course, NY Times Reporters and AP photographers.

    Until January 17, 2007 when they decided to run TSP through FISA.

    I wonder whether the May 12 2007 kidnapping FISA problem arose because of the desire to wiretap reporters or servicemen or the family members of the kidnapped with the probably reasonable belief that the terrorists would be calling or emailing to take credit or extract ransom?

    I also wonder whether the secret charges and secret evidence against Bilal Hussein is in part dependent upon TSP-type surveillance? If so, then it seems likely that the communications of several US persons serving as AP reporters may have been surveilled without warrant. This might explain some of the secrecy….

  38. wavpeac says:

    Bruce Fein is a conservative and legal scholar. On the Bill Moyers special on impeachment, he made an eloquent argument that Bush should be impeached because his use of signing statements violates the constitution because they violate the seperation of powers between the three branches of government. He also argues that Cheney should be impeached for 7 different issues. I cannot figure out why, if a conservative scholar on the constutition can make the legal argument, democrats have not done it.

    As Bruce Fein explained before the Senate Judiciary Committee:

    “If all other avenues have proved unavailing, Congress should contemplate impeachment for signing statements that systematically flout the separation of powers and legislative prerogatives. The epitome of an impeachable offense, as Alexander Hamilton amplified in the Federalist Papers, is a political crime against the Constitution.”

    What the hell is in the way???

    • phred says:

      I suspect the problem might be that in the course of impeachment, Bush/Cheney will be allowed to mount a vigorous defense, which will undoubtedly include evidence of the complicity of Congress (including members of the Dem leadership). Since the Dem leadership believe that their oath of office is subservient to their obligation to ensure electoral victory, they cannot let any damning information come to light that might adversely affect their prospects next November.

    • Leen says:

      When Bruce Fein started coming out with impeachment suggestions along with other conservatives who jumped from the sinking ship you know the Bush administration has to know they are in deep doo doo.