When All EOs Are Pixie Dust, It Means Dick Can Declassify Anything He Wants

Brit Hume once asked Dick Cheney whether he had declassified "information" in response to Joe Wilson’s op-ed. Cheney claimed he had the ability under an Executive Order to declassify such "information."

HUME: On another subject, court filings have indicated that Scooter Libby has suggested that his superiors — unidentified — authorized the release of some classified information. What do you know about that?

CHENEY: There’s nothing I can talk about, Brit. It’s an issue that’s been under investigation for a couple of years. I’ve cooperated fully, including being interviews done by a special prosecutor. All of it’s now going to trial. Scooter is entitled to the presumption of innocence. He is a great guy. I worked with him for a long time. I have tremendous regard for him. I may well be called as a witness at some point in the case and it is therefore inappropriate for me to comment on any facet of the case.

HUME: Let me ask you another question. Is it your view that a vice president has the authority to declassify information?

CHENEY: There is an executive order to that effect.

HUME: There is.

CHENEY: Yeah.

HUME: Have you done it?

CHENEY: Well, I have certainly advocated declassification. I have participated in declassification decisions.

HUME: Have you —

(CROSSTALK)

CHENEY: I don’t want to get into that. There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.

But the EO in question–EO 12958 as modified by EO 13292–says no such thing. The modified EO gives the Vice President to classify information.

The authority to classify information originally may be exercised only by:

(1) the President and, in the performance of executive duties, the Vice President;

But it didn’t change the definition of "declassification authority," which only allows the originator of information or that person’s supervisor to declassify already classified information.

(l) "Declassification authority" means:

(1) the official who authorized the original classification, if that official is still serving in the same position;

(2) the originators current successor in function;

(3) a supervisory official of either; or

(4) officials delegated declassification authority in writing by the agency head or the senior agency official.

In short, only George Tenet or his supervisor–George Bush–could declassify stuff that the CIA had originally classified. At least that was true before Bush could turn his own Executive Orders to pixie dust. Since Bush got authority to change his orders without telling us, we have no way of knowing what his Executive Orders actually say mean.

Unless, of course, he bothers to tell us.

As it happens, the Bush Administration has told us (or, rather, they’ve told Sam Brownback, which I guess is as close as they’re going to come to telling us), belatedly, what EO 13292 says means. In a letter to Brownback meant to clarify whether or not Dick is his own Fourth Branch of government, Fred Fielding directed Brownback to two press conferences Dana "Bay of Pigs = Missile Crisis" Perino for clarification on what EO 13292 says means.

The President has asked me to confirm to you that, as was made clear by the President’s spokespersons on June 22 and June25, 2007, the Executive Order deals with the President and the Vice President separately from agency heads and thus the Office of the Vice President, like the President’s office, is not an "agency" for purposes of the Order.

And sure enough, back on June 22, Dana Perino did state that the Vice President, along with the President, is not an agency.

MS. PERINO: If you look at the EO, the President, in the performance of executive duties, and the Vice President are treated separately from agencies.

(She also appears to have suggested that Bush has duties that are not within the Executive Branch, but heck, while we’re torching the rule of law, why not the Constitution?!?!?)

But Dana "Bay of Pigs = Missile Crisis" Perino said far more about what EO 13292 says means than simply clarifying that OVP is not an agency. Over and over, she stated that Bush intended to treat Dick just as he, the President, would be treated according to the EO. And while you’re reading, note how closely Dana parrots the OLC opinion that says the President gets to make his own rules.

MS. PERINO: No, and I don’t think that anyone has suggested that. I went back and I looked at this EO — I don’t know if anyone else had a chance to actually read it. I think one thing is clear: first of all, it’s the President of the United States who is the author of the EO, and is the sole enforcer of the EO, the executive order on classified materials. And it’s clear from the reading of it, the Vice President is not treated separately from the President in the EO.

[snip]

MS. PERINO: If you look at the EO, the President, in the performance of executive duties, and the Vice President are treated separately from agencies. The President did not intend — I went back and looked into this — the President did not intend for the Vice President to be treated separately from how he would treat himself. Agencies are to report to ISOO, and they do. I don’t think there’s any suggestion that no one else is complying. The Vice President was not intended to be separate from the President in this regard.

[snip]

MS. PERINO: The President and the Vice President are complying with all the rules and regulations regarding the handling of classified material and making sure that it is safeguarded and protected.

What is different is, regarding that small section of this ISOO office, that they are not subject to those — they are subordinate to the sole enforcer of the EO, which is the President of the United States, and they are not subject to such investigation — as I understand it, as I read the EO and as I had preliminary discussions in between the gaggle and today.

[snip]

MS. PERINO: That I don’t know. All I know is what I have here, which is the executive order that was released in 2002, I think, did not intend to treat the Vice President any differently than he would treat the President.

[snip]

MS. PERINO: If you go back and you read the EO, it’s — the President’s intention was never to separate the Vice President out from himself. The President, as the sole enforcer of the EO, is instructing agencies on how to handle classified material on a range of issues.

[snip]

MS. PERINO: I think what is absurd is Chairman Waxman asserting some sort of authority over the President regarding an executive order, of which he is the sole enforcer.

[snip]

MS. PERINO: I didn’t talk to him about that. I don’t believe so. Especially since, as I just said in the EO, he’s the sole enforcer of the EO, and he never intended for the Vice President to be treated separately from himself.

It’s fairly clear what has happened: between the gaggle and the press briefing, Dana asked some questions, and someone explained to her that the President doesn’t have to abide by his own rules–"he’s the sole enforcer" of his EOs–and so it is presumptuous of Henry Waxman or anyone else to expect that Bush and Dick abide by the EOs Bush signed.

Though just in case you were wondering, contrary to the plain text meaning of the EO, Dana tells us that Bush intended for Dick to be treated the same as the President in the EO.

And that appears to apply to the whole EO.

So now we know why Dick told Brit that,

There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.

Because, Dana tells us, Bush didn’t intend for the President and Vice President to be treated separately by the EO. In other words, somewhere in his kingdom of Pixie Dust, Bush has secretly given Dick the power to declassify anything the President can declassify (in addition to the classification authority Bush gave Dick explicitly).

Anything.

You all see where I’m going with this–but that’s going to have to wait until the next post.

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    • bmaz says:

      Jeebus, not you too with the zed, Fitz junk. Oh my…..

      Here is my thought. Is my thought now, and was my thought when the issue of EO 12958/13292 first bubbled to the surface.

      “… and, in the performance of executive duties, the Vice President;”

      Under Article II, Section 1, and the 25th Amendment, the Vice-President only has powers of “the executive” upon the death or incapacity of the executive, i.e. the President. If you read the EO in this light, they are full of dung about Cheney’s powers in the first place.

      • emptywheel says:

        What’s a matter, counselor, you don’t believe in Pixie Dust?

        BTW, while I’m whining about legal means to overturn this, how do we leverage the AG’s stated believe that EOs mean what they say they mean?

          • emptywheel says:

            That’s not going to work. Thus far, even very smart people are saying, “well, that’s cute. Just think how dangerous it’d be if he really acted on it.”

            No one else even sees where they’ve gone with it, so they’re not laughing. They’re just rolling over on their side, which is precisely the response Dick wants.

        • bmaz says:

          [In my best Clintonian drawl]
          Well, that depends on what the meaning of “they” is.
          I need to see the exact statement to figure out how to best turn the screw around and point it back at the sender. But, just from your question, if “they” means the EOs mean what they, the EOS, say they mean; that fits right in with my reading and the precise wording contained within the four corners of the Constitution. The VP has no “executive” duties other than under those circumstances; why do you think the job was equated with a “bucket of warm spit” for centuries?

      • masaccio says:

        That is exactly how the EO reads.

        I think we misunderstand the Pixie Dust effect when we act like competent lawyers, you know, read the words and use our training to figure out what they mean. Perino and the idiots argue that not only can they disappear rules, they can disappear words and phrases, and appear others in their place. In this case, the words (and punctuation) “,in the performance of his executive duties,” are disappeared, and the words “and anyone else I intend not to be treated differently than the President, including but not limited to” are appeared in their place. Imaginary law, a new field of study.

        • bmaz says:

          Yep, secret law, as Mary would rightfully call it, that works always for them, never for us the people. Or, as LHP adroitly puts it “they’re just making shit up”.

        • bobschacht says:

          “I think we misunderstand the Pixie Dust effect when we act like competent lawyers, you know, read the words and use our training to figure out what they mean. Perino and the idiots argue that not only can they disappear rules, they can disappear words and phrases, and appear others in their place. In this case, the words (and punctuation) “,in the performance of his executive duties,” are disappeared, and the words “and anyone else I intend not to be treated differently than the President, including but not limited to” are appeared in their place. Imaginary law, a new field of study.”

          I think that we’re with Alice/EW/LHP, and this is Wonderland. Um, would George be Humpty Dumpty? or the Queen?

          Bob in HI

  1. looseheadprop says:

    I did it! I haven’t fitzed in months, maybe over a year. Whoo hhoo.

    And yes this is compeltely juvenile. WHich is why I enjoy it so much

  2. emptywheel says:

    Well, of course you “fitz’ed” over here. That’s bc no one does that over here. It’s like sitting on a seat no one wants, at the front of the room!!

    ;-p

    • looseheadprop says:

      maybe it’s b/c I’m so short, or maybe it’s b/c I’m that annoying sort like the guy on Welcome Back Cotter who used to always raise his hand and say “ooh ooh, Pick ME Mr. Cotter”

      But I like sitting in the front, center.

  3. looseheadprop says:

    There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.

    Actually that statement by Cheney is true. Cheney has the authority to classify information and docuemnts. As the original classified he has the authorit to de-classify anything he originally calssifed.

    What he doesn’t have, I and I don’t give a rat’s ass what digbat Dana said in a press briefing (which has no force of law–but may in some instance become an “admission agaisnt party intrest”) that EO does not say ANYTHING near what she was trying to create the misimpression it says.

    We are back in the land of “they are just making shit up”

  4. emptywheel says:

    It DOESN’T matter that they’re making shit up. OLC has given them carte blanche to make that shit up. “Here, Mr. Cheney, here’s your shit wand.”

    • Rayne says:

      I think it was more like, “Why yes, Mr. Cheney, that is your shit wand!”

      They didn’t give him anything, just rolled over with a flourish.

    • Leen says:

      I clearly remember that Hume interview with Cheney covering his ass. Please Please Please someone Impeach these social I think they are a group of psychopaths..

      I swear the Republicans could win the 2008 election (well selection) if they would take up the Impeachment issue.(Kucinich has all ready started the ball rolling) Can you imagine Senator Warner or Hagel (hell they are leaving) taking this up? This would win them the election I swear.

  5. LS says:

    How can Bush be the “sole enforcer” and Cheney be the same thing..the “sole enforcer”?????

    This is my favorite Perinoism:

    MS. PERINO: That I don’t know. All I know is what I have here, which is the executive order that was released in 2002, I think, did not intend to treat the Vice President any differently than he would treat the President.

    So, in fact, we have Predzinet Cheenee, “Sole Enforcer”…sounds like he created the EO, and through the other Predzinent Bush a bone…Non?

  6. emptywheel says:

    Actually, LS, using the same logic, she appears to have made Dick President here:

    MS. PERINO: If you look at the EO, the President, in the performance of executive duties, and the Vice President are treated separately from agencies.

    • LS says:

      Geez!!! So, if W made Dick President…how many more terms can he stay??? /s

      Maybe W doesn’t even know he signed Dick’s EO…and he’s not even the Prezdinent anymore!! Here W, sign this…D’oh kay….

  7. Hmmm says:

    As discussed thoroughly at FDL today, in the event of a challenge in a courtroom (or in a Senate trial for that matter), how much cover does a demonstrably faulty OLC opinion give them?

    • looseheadprop says:

      how much cover does a demonstrably faulty OLC opinion give them?

      Depends one who the “them” is. Do Ithink the OLC opinion gives cover tothe CIA agents in the feild? Yeah, I do. Especailly if it turns out, and I have a hunch it might, that BEFORE enganging in “enhanced interrogation” the CIA grunts in the feild asked for legal guidance.

      In determining whether something s “legal order” that must be followed lest one risk insubordination, I don’t think any court is going to hold that a non -lawyer be held to the standard of a legal scholar.

      Which is different that the President. He went behind the back of the head of OLC to get John Yoo to write him these bogus opinions. I think a fair case could be made that this evidencesd a consciousness of guilt.

      • Hmmm says:

        So CIA is in the end in the stronger position than W/Dick/Addington wrt the faulty OLC opinions. Good answer. Though if state secrets privilege obtains — paging SCOTUS — it might never matter practically.

        • emptywheel says:

          Why?

          In this case, no, because any time Dick wants to out CIA’s sources and methods, he will do so with apparent impunity (until he’s impeached).

          In the case of torture, it means they won’t be prosecuted for torturing, but it means they’ve been asked to torture for six years.

          And who knows what else it means? Maybe they’ve been asked to become assassins. Maybe they’ve been asked to infiltrate peace organizations. We don’t know how far the Pixie Dust extends.

          • LS says:

            Yup. Shadow government. Two leaders..one to show to the public…one of equal status to create policies to execute the dirty deeds…one that spends taxpayer dollars….one that uses drug money laundering to wage covert wars and covert missions…The lightside and the darkside.

          • Hmmm says:

            There I am relying on LHP’s analysis @ 25, keeping in mind that the context (from mine @ 11) was limited to “in the event of a challenge in a courtroom (or in a Senate trial for that matter)” — not whatever they manage to get away with between now and then. I don’t disagree that any number of other crimes may have been ordered under the demonstrably faulty OLC opinions.

        • looseheadprop says:

          So CIA is in the end in the stronger position than W/Dick/Addington wrt the faulty OLC opinions.

          CIA the agency? No, I think it ends up in weaker position, because of the scandal. The grunts out in the feild, are in pretty much the same legal position they always were a la the Bivens case. They were following an order that they had every reason to believe was legal (assuming that they sought and obtained an opinion form counsel)even though on it’s face they would intuitively fear it was not legal.

          Does that make sense to you? There are lot sof things that are/are not legal that most lay people think are just the opposite. So, if you get told to do something and reply “I don’t think so, isn’t that agaisnt the law?” and the agency cousel or OLC comes back with a fancy looking written opinion that says it is legal–how can you be expected to contradict them?

          • Hmmm says:

            Sorry LHP, I should have been clearer that I was only considering a position in a trial (Court or Senate), not a power position on the chessboard at large in the meantime.

          • Rayne says:

            I disagree about the grunts in the field, unless they were extremely prudent to cover their asses with documentation. Otherwise they are merely better educated Lynndie Englands who’ll take the fall for their so-called superiors.

            Somebody in a figurative way is going to have to take one for the team by self-outing while providing the contemporary equivalent of Ellsberg’s Pentago Papers; I am beginning to think this is the only way to pointedly reject the unitary executive pixie dust, now with flavors “state secrets” and “executive privilege”.

            • Hmmm says:

              I took Kiriakou as an elegant maneuver to self-out (PR-wise) without revealing any interviewer/torturer identities in the eprocess. I don’t think he’d actually have standing though… would he?

              • Rayne says:

                Kiriakou’s efforts, as far-flung as they were, came across as a massive PR campaign to inoculate the public against the evils of waterboarding, IMO. I did not see it as self-outing; he provided no documentation we didn’t already know about, nothing incriminating, never actually witnessed the waterboarding.

                No, now that you’ve suggested Kiriakou might have been a form of self-outing, I think that this attempt to inoculate might actually have anticipated both documentation and self-outing by an agent.

              • prostratedragon says:

                My only exposure to Kiriakou is yesterday’s ATC interview:

                The ex-CIA officer also notes that the action required approval from the CIA’s deputy director of operations.

                That little thing thrown in near the end of the interview was the only part that didn’t sound like boilerplate. Though it’s been conjectured about the DDO, is John K the first putative insider to say it? Maybe his real mission is to add to the pressure there.

  8. emptywheel says:

    Hmmm.

    Though that’s one of the reasons why I look forward (against my better judgment) to the OPR investigation into the OLC opinions rationalizing the illegal wiretap decisions.

  9. looseheadprop says:

    EW

    It does matter that they are just making shit up. It’s like the Emperoro’s New Clothes. If we all tie ourselves in knots about “what does this mean” “what new powers does he have now”–we are tacity agreeing that they can do this.

    If we just say: NOOOPE, you are full if fertilzer and everybody knows it. It will stop. Folks have to stop treated the outrageous, the ridiculous, as sane.

    We must change the pardigm. We must not give this foolishness one iota of respect or deference

    • emptywheel says:

      LHP

      Barring some legal recourse (and I’m waiting for your explanation of how we discredit this legally) then the first step to the Emperor’s New Clothes is to point out, such that everyone case see it, that the Emperor is naked.

      That’s part of what I’m trying to do. A lot of very smart people are saying, “well, golly, that EO thing would be really scary if Bush were doing it indiscriminately.”

      Ergo, I’m trying to show that he is.

      • looseheadprop says:

        Oh, I’m not criticisizing you analysis, just wish you would laugh at them. It’s what they deserve

        • emptywheel says:

          You think Valerie Wilson laughs at them? Or any of the spooks who are susceptible to precisely the same treatment?

          It’d be funny if they were using Pixie Dust to spy on me, torture others, and out spies. Once I figure out a way to stop that, I’ll declare beer century and laugh for a month.

      • bobschacht says:

        LHP

        Barring some legal recourse (and I’m waiting for your explanation of how we discredit this legally) then the first step to the Emperor’s New Clothes is to point out, such that everyone case see it, that the Emperor is naked.

        That’s part of what I’m trying to do. A lot of very smart people are saying, “well, golly, that EO thing would be really scary if Bush were doing it indiscriminately.”

        Ergo, I’m trying to show that he is.

        Isn’t it really important to take action to “discredit this legally” so that it doesn’t become an “established practice” kinda thing? That’s why I am so grateful to EW & LHP for leading the charge on this (and can’t wait for Christy’s return!).

        For example, under their interpretation, could Cheney just sign the order to nuke Iran himself, without even bothering to tell George? Al the Spook thinks something very close to that almost happened in early September, and got called off only when Syrian tracking stations started shooting at the nuclear convoy heading towards Iran.

        Bob in HI

  10. brendanx says:

    emptywheel:

    Didn’t that exchange with Hume occur at the tail end of his post-shooting interview. Was there a reason for that?

    • emptywheel says:

      Yes, it was the shooter interview.

      Christy and I published the news that Scooter had been authorized by Shooter on Feb 2, and then Murray and Carol Leonnig published it on February 9, just before Shooter went on his spree. So the declassification thing actually immediately preceded Dick’s drunken shooting spree.

  11. BayStateLibrul says:

    Is Bush, the boy who never grew up or Mr. Smee, Captain Cheney’s sidekick?
    I’m voting for the loyal Mr. Smee with tic, toc, tic, toc

      • Leen says:

        Can we share Leahy as a hero? Helen Thomas is another hero. Leahy acts and looks like the Catholic image of god I grew up with.

        Leahy and Thomas both look and act like the god I want to imagine.

  12. emptywheel says:

    Right. I’m just suggesting that, while those doing the torture and illegal wiretap under this EO (and note, we do know this was used to justify illegal wiretapping; we don’t know if it was used to justify torture) are protected from legal prosecution, they may not be protected from having their covert identities exposed.

      • emptywheel says:

        Nosiree, You’re not going to get me to comment on the relative looseness of various Ruggers. Nosiree. I’m sure I could outrun LHP, but I’m likely to run right into phred, and then where will I be??

        • phred says:

          In a world of hurt ; ) Yep, that’s me a tough guy ; )

          bmaz, delighted to see that you are up to speed on props and wings now.

          • bmaz says:

            Phred- I was the consummate college student and yuppie out on the town. I don’t know squat about props and wings; but I know loose….

            • phred says:

              Well, now that you mention it, LHP stands for LOOSEhead prop, so maybe that’s where she gets it.

              Hmmm @70, yep, I noticed that, but I got here late and just finished catching up, so thought I would ask again. I think Nuremberg is highly relevant here. IMO those CIA agents should be fretting bigtime, no matter what load of horseshit Yoo et al. sold them. My only real hope is they take Bush and all his little henchmen down with them.

              • emptywheel says:

                Which is probably why they destroyed the tapes.

                Furthermore, while the Pixie Dust EOs apply within this country, they don’t apply outside of this country.

                The Europeans actually CAN laugh at this nonsense.

                • phred says:

                  Oh I agree, better to piss off a judge with minimal consequences than have evidence hanging around your neck like a veritable albatross.

                  Lets hope some Europeans with appropriate legal skills don’t just laugh, they cackle with glee as they rub their hands together in anticipation…

  13. LS says:

    From Wiki regarding presidential Executive Orders. I don’t know if there is here, here or not..you legal eagles could shed light on it though:

    “The precedent in Schechter Poultry Corp. v. United States might be of some relevance. The Supreme Court ruled that Congress cannot give the president power to create laws, so it would follow that an executive order in restraint of a law, not enforcing, would be beyond the president’s power.”

      • LS says:

        I don’t think it does. But, I think it is saying something like that the president can’t make up directives, via EOs, that restrain the enforcement of existing laws that Congress has already passed (like torture or FISA, or outing CIA agents, or anything else)…the president can only issue EO’s that “enforce” existing laws and/or direct ways by which Executive branch executives should enforce those existing laws. The president is not above the law. Period.

      • looseheadprop says:

        Signing statement cannot rump statute either.
        Bush misused the term and the vehicle. A signing statemnt is no more binding than , and bearely equivilanet to, the legislative hisotry of a statute.

        It’s all lies from this WH

        • bmaz says:

          Yeah; I would argue they don’t even have the effect of legislative history, as that is the collective underpinnings of the law, not and after the fact, self serving interpretation of the law.

        • phred says:

          LHP — If Bush has misused signing statements what can be done about it? Aside from impeachment, since Pelosi can’t seem to find her table. Since a sitting President cannot be charged with a crime, presumably prosecution could proceed after he leaves office. But what statutes exist with which he could be prosecuted?

          It seems to me this whole Presidency has been one long shell game, with BushCo one step ahead of the law at every turn. From what bmaz told me last night, whoever destroyed the torture tapes is unlikely to face jail time, which makes all this obstruction they’re engaging in a win-win situation for them.

          How can we prosecute these folks and make it stick?

    • looseheadprop says:

      Unitary power. Should we look to Congress, the next president, or the judiciary to save the day?

      I totally agree with that analysis. As I hae said until blue inthe face. EO’s are like agency rules only they apply to all releavnt agencies.
      EO do not, can not trump statue or the COnstitutiton

      PERIOD

      • emptywheel says:

        But what law is this trumping?

        What law tells the President he can’t declassify indiscriminately? Case law says the President’s ability to classify and declassify is absolute. So how is this trumping law?

        I agree this Pixie Dust trick can’t trump FISA (though they appear to be trying). But there’s no FISA in this case.

        • Stephen Parrish says:

          Marcy –

          Please refresh my memory: do you have a citation pertaining to the President’s ability to classify and declassify? I recall a case that David Addington cited in testimony (or was it in a deposition?) at Scooter’s trial, but if I recall correctly, that case wasn’t relevant.

        • LS says:

          Just a guess…it says the president can declassify and classify by statute, which trumps his EO that gives power to the VP to do the same. He can’t change the law by an EO, but he could make directions to his Exec. Office minions on how to enforce the law. He can’t deem the VP to have the same authority as himself by an EO. That would be unconsitutional. JMHO.

          The craziness is that he probably thinks he can, because maybe Addington and Fielding are throwing pixie dust all over W. They are probably giving him very bad advice…

          Maybe the joke is on W.

          • emptywheel says:

            Well, it’s not Fielding (or it wasn’t, at the operative time), it was Abu G. So I think we can assume the advice was bad.

            That said, as far as I understand, the one thing that governs classification and declassification for the executive branch is this EO. So if I understand it correctly, the case law gives Bush absolute authority (per Bill Leonard, not per Addington), to classify and declassify. Bush has taken that case law and made a Pixie dust EO in which he has “said” Cheney is to be treated like the President wrt classification and declassification. That is, Bush is lending Cheney is absolute authority to declassify.

            • bmaz says:

              That is, Bush is lending Cheney is absolute authority to declassify.

              Except, as you noted, it doesn’t even say that as to DEclassification. And as the windmill I tilt at argues, it doesn’t say that about either classification or declassification if you read it literally in conjunction with the Constitution.

              • emptywheel says:

                Silly

                You’re assuming that an EO has to say what it means. Bush has an OLC opinion saying that EOs don’t have to say what they mean. So no, it doesn’t SAY Cheney can declassify. But it does mean it.

        • looseheadprop says:

          I’m not saying the President can’t de-classify. I’m saying he can’t de-classify w/o a paper trail (Presidential Records Act)

          • Rayne says:

            LHP, We’re still playing the game here…

            You deploy the EO, saying you reserve the right to classify/declassify at will;
            I say your emails aren’t classified since they’re on public resources and subject to PRA;
            You say, Oops, I lost 10 million emails…

            What’s the next move?

          • bmaz says:

            Right. And lets be honest, if the declassification action is on the up and up, you would want a record of it to protect both yourself and anybody else involved (say for instance Scooter).

  14. Stephen Parrish says:

    bmaz @ 1:27 pm and lhp –

    Do you think (based on the reasoning I see in comment 18) that the President possesses the authority to delegate executive functions to someone who at times asserts that his office isn’t part of the executive branch?

    • bmaz says:

      Well, that is an interesting, and good, question. This is purely a random musing, probably not even possessing the level of credibility of my usual tripe (i.e. not much). Maybe delegate tasks and work necessary to carry out the executive(Presidential) functions; but not the functions themselves. The president is hired (elected) to do a designated job; if he isn’t the one doing it then the will of the people has been usurped because a person they didn’t vote for President is acting as President. This is a problem i have long had about the way Cheney runs everything of significance while Bush rides his bike, works out, gets his 9 hours of sleep a day and clears brush at his patch of Texas dirt.

      • Stephen Parrish says:

        …if he isn’t the one doing it then the will of the people has been usurped because a person they didn’t vote for President is acting as President.

        Is he acting as President or as a de facto prime minister?

        • bmaz says:

          A rose by any other name; its just a matter of semantics. In our system of government there is no prime minister; so the presidency has been effectively usurped in those areas.

  15. radiofreewill says:

    Intuitively, I have felt that an ‘integral’ part of the UE Theory includes the notion that members – those who have been ‘read in’ – have two positions.

    The first position is their Constitutional job – For instance, President.

    The second position is their Kingdom job – For instance, Unitary Executive.

    The Kingdom job is the Constitutional job plus the *Constitutional Powers* of the next level up. So, Cheney’s Constitutional job of Vice-President is *empowered* inside the Kingdom to be the same as that of the President, which explains why we all feel that Cheney is the President.

    In Bush’s case, there is no ‘next level up,’ so he gets Absolute Powers – his Word is Law for everyone, except himself and his designates, and he doesn’t have to tell US when he is not obeying his own Laws – he just tosses out some Pixie Dust ™ and does what he wants.

    Cheney, otoh, gets to play with Presidential Powers, so he gets to classify and declassify on his own whim, be the point man on foreign policy issues, and fly out to Aircraft Carriers in the Persian Gulf to personally discuss War Plans with the Theater Commander.

    I actually read somewhere, but can’t remember where – maybe a Tim Griffin quote? that said, in effect, that ‘the intent’ with the USAs was to arm them each in the War on Terror with the *powers* of the Attorney General of the US.

    In the UE system, the Members are operating within a (some say sworn) Special Mission, to Save the United States from the Terror of the Axis of Evil. The assumed Hero of this Tale is Bush, ably served by his Courtly Round Table of Minions and Henchpeople.

    The Rule of Law applies only to those operating within the Public Consitutional System. Within the Kingdom, Loyalty is the measure of Merit, and it Trumps the Rule of Law, at the whim of the King. Those Loyally doing the bidding of the King, are assured of immunity from the Rule of Law. Whole Federal Government Agencies can be incompetently run and looted by cronies – and it’s okay, if you’re smoking cigars with the King.

    If this speculation is true, then Cheney would have the same ‘presidential immunity’ that the president enjoys by the Constitution.

    Which means We’d have to Impeach them as a Pair, with Bush holding his nose up in the air, and refusing to recognize any of it…

    Imagine that?

  16. phred says:

    lhp — if you’re still around, I agree that the OLC opinions give the agents in the field some cover, but doesn’t this argument fly in the face of Nuremberg? I was under the impression that the excuse of only following orders was an insufficient defense. If one of the agents in question woke up one morning in the Hague, do you think those OLC opinions would carry any real weight? Admittedly, this is a question directed with an eye toward an international tribunal, but I don’t see how an unconstitutional order can be found to absolve someone of a war crime in our system either.

    • Hmmm says:

      Yes, I asked the same Nurnberg question at 15. If that analysis wouldn’t apply, I would like to understand why.

    • looseheadprop says:

      Unitary power. Should we look to Congress, the next president, or the judiciary to save the day?

      Sorry, got a post of my own up trying to be on two threads at once.

      The difference wih Nueremberg was that they did not question the orders. This is playing out in the AT&T case right now. At&T had access to competent counsel who should have told them the wiretap authorization was invalid, so AT&T should have refused to cooperate like Quest.

      If the CIA feild grunts, questioned the order and were given serious reasurances that torder was legal–they don’t have law degrees–hell, most real estate lawyers wouldn’t know any better either.

      • skdadl says:

        LHP, IANAL and I’m not an American, so I write with caution and respect, but that is not how I understand Nuremberg. When the order involves a profound challenge of conscience — and torture certainly qualifies — one does not get off the hook by looking for a handy lawyer. Lawyers don’t get off the hook; officers don’t get off the hook; soldiers in the ranks don’t get off the hook — no citizen in a democracy gets off the hook. You just say no unless you are facing a threat of imminent death yourself (always a defence).

        In fact I’m agreeing with you, LHP, as with EW — the pixie dust is many absurdities, and not just on grounds of international law. The U.S. Constitution is not just words on paper for lawyers to play games with. It is a document that emerged from the C17-C18 Enlightenment, and it embodies certain basic principles and structures that European and American thinkers had come to realize were necessary to building democracy. Anyone who starts to play games with those is throwing out democracy. It doesn’t matter whether people go on voting (a necessary but not a sufficient condition) — the whole structure has to be defended, and anyone who is attacking at that basic a level simply has to be brushed off.

        • phred says:

          skdadl — very well put, and that is certainly the view I share. I can’t help wondering whether anyone in the CIA or their contractors chose to resign rather than carry out such an order. I may never know the answer, but I will always hope that someone had the morality to say no and walk away.

        • masaccio says:

          Well said. Society, the rule of law, isn’t just about the mere words, it is the entire structure of law, interpretation, rules, institutions, memory, and informal procedures. The r’s have torn down everything except the words on paper, and they give them no respect either.

      • klynn says:

        LHP-

        Thanks for stating that. I had asked your emphatic statement as a question over a month ago @ TNH and bmaz told me, “No! AT&T’s counsel could have come to a different conclusion than quests. I followed with the question, SO AT7T’s free on this because of stupid counsel that could not see the possible ramifications?”

        bmaz, I am not trying to get you in trouble here with LHP (although you did start the ‘loose’ bit of this thread.) I’m just glad to see that the reasoning of AT&T is catching up with them!

        • bmaz says:

          Klynn – Not to worry. Without differences of interpretation and opinion, how could us scumbag lawyers charge everybody so much money? Heh heh, not that I have been doing enough of that lately. But, back to the point; I have no idea what the relative legal opinions and advice of the respective counsels for AT&t and Qwest were. My belief, based upon some scuttlebutt generated by some close to Qwest, is that the reason Nacchio got stiffed on the contracts is that he was trying to play the Administration for more, bigger and bigger percentages of contacts because he needed them to cover his book cooking and they called his bluff. Under this theory, Nacchio’s group had reservations about “The Program”, but were using these doubts to try and get a bigger piece of the pie nevertheless. When the Administration called his bluff, there was no way he could cover the accounting irregularities and then they prosecute him to boot because, well, they could and they wanted to send a message to the other telcos to stay in line. That’s just my theory, but I am sticking to it for now.

          • klynn says:

            bmaz,

            You cannot be a scumbag lawyer even though your college days stories might state evidence otherwise…Besides you are never impatient with non-lawyer types like myself nor do you patronize. Funny but not patronizing…

            I agree with your theory to an extent. However, I do think AT&T will get their “facial” in court because of the Qwest story…Which is why I think the immunity issue with FISA is back on the table for the Senate. AT&T does not like what the courts are pointing to right now and immunity is their only hope…

  17. LS says:

    LHP is right. They are making this shit up. They do these things in order to make everybody think they are so powerful. They aren’t. They are the men standing behind the curtain in the Wizard of Oz and they do it, only because no one is stopping them, but what they are doing is an exercise in burning up paper in a smoke and mirror operation. It is BS. Both Cheney and Bush are nekked!!

    • Hmmm says:

      In a way (appropos of LHP’s thread on FDL) what they have done is to cast a spell — out of language, they have conjured up an elaborate, many-facteted justification currently hanging together in the air above all of us, but held together only by the friction of the words and the logic. But because there is no underlying reality actually connecting any of the joints, they have to eventually slip… and then the castle in the air just flakes apart into a flurry of its constituent OLC opinions and EOs and whispered illegal orders.

      Poof.

      So now it’s all a timing game. They need to keep appearances up long enough to depart the building before the blizzard.

    • sojourner says:

      Just a thought (and I have not yet read through the rest of the notes), the Prez commented a couple of months ago how he has to veto bills to show that he is relevant. Maybe he wound up giving Dick a little too much power and now he is sorry, but he doesn’t know how to get it back…

      If these two were not so dangerous, I would just say to shout “Irrelevant” to whatever they do, and then laugh at them…

      • LS says:

        Good point. It goes back to what I said about there being a shadow government, which is run by Cheney, to do all the darkside stuff; and W who does all the typical obnoxious public stuff. There is much more to this Administration than meets the eye. Fortunately, because of whistleblowers and other patriots, they are being exposed…slowly but surely.

  18. Stephen Parrish says:

    …I think it is saying something like that the president can’t make up directives, via EOs, that restrain the enforcement of existing laws that Congress has already passed…

    Do you think that signing statements are the functional equivalent of informal executive orders that “restrain enforcement of existing laws”?

  19. LS says:

    They are all doing this stuff, because they are afraid….they have broken the laws of the country on numerous occasions. They should have been impeached a long time ago, but Congress is full of idjiots, and it has resulted in loss of life.

  20. Leen says:

    Sorry if this has all ready been posted
    http://www.msnbc.msn.com/id/22244282/

    Dec13,2007

    WASHINGTON – The Senate Judiciary Committee voted on Thursday to hold two top aides to President George W. Bush in contempt of Congress for refusing to cooperate in its probe of fired federal prosecutors.

    On a largely party-line vote of 11-7, the Democratic-led panel sent contempt citations against White House Chief of Staff Josh Bolten and former Deputy Chief of Staff Karl Rove to the full Senate for consideration.

  21. Leen says:

    Another bit of good news
    http://news.yahoo.com/s/nm/200…..torture_dc

    House votes to outlaw CIA waterboarding

    By Thomas Ferraro 1 hour, 9 minutes ago

    WASHINGTON (Reuters) – Defying a White House veto threat, the U.S. House of Representatives voted on Thursday to outlaw harsh interrogation methods, such as simulated drowning, that the CIA has used against suspected terrorists.

    On a largely party line vote of 222-199, the Democratic-led House approved a measure to require intelligence agents to comply with the Army Field Manual, which bans torture in compliance with the Geneva Conventions on the treatment of prisoners of war.

    • Stephen Parrish says:

      Marcy –

      Thank you very much for reminding me of that particular citation. Please refresh my memory once again: who is Bill Leonard?

      • bmaz says:

        Leonard is the Director of Information Security Oversight, which is responsible for policing this junk and is under the United States Archivist.

        • Stephen Parrish says:

          Thanks for answering my question – and, by the way, the full citation is Department of Navy v. Egan (1988). It might be worthwhile to review that Supreme Court decision to see what it says, if anything, about the President’s authority to classify and declassify at will. If I recall correctly, that case isn’t germane.

        • Rayne says:

          And the National Archivist was removed and replaced by a Bushie, counter to tradition.

          Just a little more pixie dust…it might do well to check and see when the current archivist was appointed.

          And yet a bit more pixie dust: one of the kind folks here left this link in a thread here, a FOIA’d list of OLC decisions. You’ll note that the redaction has been much more aggressive in the last few years; did OLC not affirm Cheney’s shit wand at any time, I wonder?

  22. LS says:

    Even though they may be making everything up…it is still costing lives and careers…so although it is funny in a way….it is still deadly serious.

  23. radiofreewill says:

    While it’s true, Bush can insta-de-classify – in some cases, it would be similar in risk-taking to over-riding the safety interlocks on the Nuclear Football.

    Classification takes control of its object.

    De-classification releases control of its object.

    Once information becomes Classified, it is ‘in-play’ with the rest of the Intelligence Community, who may or may not be relying on that classified information, directly or indirectly.

    Therefore, De-classification is normally a rigorous process, designed to ‘release’ control of information after conscious evaluation of the impact of such a de-classification.

    If careful adherence to de-classification protocols, which presumably the President can waive at his whim, are not followed, then one might end up releasing control of information that triggers a down-stream series of revelations that might compromise National Security.

    Yes, the President can insta-de-classify, but not without running the risk of Serious consequences.

    • emptywheel says:

      Sure. Serious consequences, like the compromise of your best intelligence network on WMD.

      But that’s not a legal issue. It’s a political one, just like impeachment.

      • radiofreewill says:

        “But that’s not a legal issue. It’s a political one, just like impeachment.”

        That’s really all that’s left, isn’t it? Since Bush can use his Pixie Dust to make the Law grasp at thin air anytime they are getting close, like he wasn’t even there.

        PS – the site seems to be getting wobbly…

        • LS says:

          Bingo. Unless challenged by impeachment…they can parade around in all of their nekked glory (brain bleach), deceiving many and convincing some; they can even act on their pixie dust, and unless anyone challenges them…well, they just keep on going.

  24. BayStateLibrul says:

    OT,

    But did Dana Peroxide say yesterday that they couldn’t comment
    on the Libby deal until the Wilson appeal is done?
    Have they pushed back the goal posts back to the -100 yard line?

    • Hugh says:

      But did Dana Peroxide say yesterday that they couldn’t comment
      on the Libby deal until the Wilson appeal is done?

      Well, I think her exact words were “a snowy day in hell…”

    • LS says:

      Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” United States v. Nixon, 418 U.S. 683, 710 (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. See, e. g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Burns v. Wilson, 346 U.S. 137, 142, 144 (1953); Gilligan v. Morgan, 413 U.S. 1, 10 (1973), Schlesinger v. Councilman, 420 U.S. 738, 757-758 (1975); Chappell v. Wallace, 462 U.S. 296 (1983).”

      This sites “Responsibilities”.

      Not “authority”. The Presidential responsibilities and the VP responsibilities are not the same. The Presidential authority is not the same as the authority of the VP.

      The Presidential responsibilities do not include allotting equal authority to the VP. He can’t do it. Only we the people can elect POTUS..one POTUS who comes with POTUS responsibilities and authorities, but nowhere could one presume that by his authority, he could grant the VP equal responsibility or authority. No way.

      • looseheadprop says:

        The Presidential responsibilities do not include allotting equal authority to the VP. He can’t do it. Only we the people can elect POTUS..one POTUS who comes with POTUS responsibilities and authorities, but nowhere could one presume that by his authority, he could grant the VP equal responsibility or authority. No way.

        BINGO.

        BTW what you are dscribing is part of the REAL Unitary Executive theory (which is NOTHING like the bullpoop Bushco wants you to believe it is)

  25. Richmond says:

    Still having problems with the new site. Often when I login I get no “response box” (which is here now, happily, hence you are reading this). Also I am unable to quote others because nothing allows me to cut and paste. It would be great to have a column on a slower day to address some of these issues. Many of the posts are down in terms of the numbers of responses these days, and I wonder if this is part of it.
    Outside of that it is great to have EW on this site too.

  26. Hmmm says:

    (When all other tacks fail, look to fundamentals:) So what law bears on EOs in the first place? How did they start, is their scope limited or otherwise defined by statute, what is the case law (beyond Egan) on same? I know they get printed in the Fedeal Register, is that b/c of statute? Or are EOs essentially just a custom?

    • bmaz says:

      EOs are kind of a custom that have no particular or specific Constitutional or statutory basis; rather they emanate out of the general powers of the executive under Article II of the Constitution. Courts can dissalow them and the Congress can supersede them by passing legislation on point.

  27. LS says:

    So…the statute in place, prior to the EO giving Cheney carte blanche, said the POTUS can classify and declassify at will, okay…and then the pixie dust EO grants it to Cheney by POTUS(Which he can’t do. He can’t change the pre-existing law, he can only tell Cheney to declassify or classify, because it is a directive, not a law)…and now it all has an added sprinkle of P-dust per pigmissile’s mission to go forth in a presser and state in the presser, that it was actually “intended” to grant POTUS and Dickster equal authority…. because the EO was authored by POTUS, who….it sounds like..accidentally on-purpose thinks he crowned VPOTUS…COPOTUS…by saying that there is to be no difference between himself and Dick.

    But POTUS does not have the power to change the status of the VP…he can’t promote him any higher than he was elected to be or grant him presidential authority..only the electorate can do that by elections…that’s why he can’t fire him either.

    I think I ate too much pixie dust.

    • Hmmm says:

      Thanks, LS — excellent nutshellizing. Actually I was more after the context for EOs generally, not classification/de per se.

  28. Hmmm says:

    Could Congress (in the abstract, not as limited by current Dems) pass a law requiring all EOs to be reduced to writing? Would that help cage-in the Calvinball?

  29. LS says:

    Congress won’t challenge them on this, because SCOTUS is fairly loaded in their favor with cronies, and I think that is why they keep letting it slide until the (hopefully) elections.

    I’m tellin’ ya…the inmates have taken over the asylum.

  30. bmaz says:

    Gomer & Goober’s Bush DOJ strikes out again on a terrorism prosecution. Mistrials and acquittal the verdict in the big Miami “Seas of David” terror case. You might remember this one; it is the one where the supposed terrorists asked the government set up plant to loan them money for tennis shoes and cellphones, and didn’t know where the Sears Tower was even though they were supposed to be plotting to blow it up. Albertoad Gonzales must be proud.

  31. radiofreewill says:

    No Goopers are sleeping well tonight!

    If Contempt of Congress is voted by the Full Senate against Rove and Bolten, Impeachment is virtually assured.

    If the Goopers block the Contempt of Congress against Rove and Bolten, then the Privilege Claim – absolutely spurious by all legal precedent – can be challenged, and Rove and Bolten forced to testify – in which case, Impeachment is virtually assured.

    The only difference is – Will the Goopers be ‘bad dumb’ enough to go down with Bush and Cheney, or not?

    Here’s the Vegas Line: If Turkeys can drown in the rain, then the Goopers are imminently capable of going down with Bush.

  32. selise says:

    OT – anyone listening to c-span2?

    reid just came to the senate floor to discuss his plan for several bills coming soon, including fisa. he said that he would be filing for cloture (but has not, i think, done so yet) and that there were two bills (intelligence and judiciary committees) – although he did not explicitly say he would be bringing one or both to the floor. he said that the cloture vote was necessary because senators feingold and dodd had told him many times that they would insist on it. the cloture vote is expected monday.

    hopefully someone was listening carefully and can comfirm or correct this.

    • bobschacht says:

      “reid just came to the senate floor to discuss his plan for several bills coming soon, including fisa. he said that he would be filing for cloture (but has not, i think, done so yet) and that there were two bills (intelligence and judiciary committees) – although he did not explicitly say he would be bringing one or both to the floor. he said that the cloture vote was necessary because senators feingold and dodd had told him many times that they would insist on it. the cloture vote is expected monday.”

      I thought there were 3 bills– wasn’t there also one by snarlin’ Arlen, with the substitution language?

      Bob in HI

      • selise says:

        I thought there were 3 bills– wasn’t there also one by snarlin’ Arlen, with the substitution language?

        i think specter’s bill was not passed out of the senate judiciary committee business meeting today. from wired:

        The Senate Judiciary committee declined to endorse a measure Thursday that would have saved telecoms such as AT&T and Verizon from anti-wiretapping lawsuits by making the government into the defendant. That move clears the way for a full Senate debate on immunity that may start as soon as Friday.

        but i was away from the computer for most of the afternoon, so maybe i missing something?

        • PetePierce says:

          I see your Wired link now–I wasn’t able to look this afternoon but oould not find much clarity as to what happened at SJC today. Apparently they bypassed voting on the Specter bill.

          No one should mistake the Specter bill for anything but comlete Telcom immunity.

          Specter Substitution is Immunity by Another Name (12/13/2007)

          ACLU Urges Congress Not to Repeat History With FISA

          The Foreign Intelligence Surveillance Act

          “The following can be attributed to Caroline Fredrickson, director of the ACLU Washington Legislative Office:

          “Allowing the administration to step in as the defendant is not an acceptable alternative to immunity. The administration has three strong cards up its sleeve when it comes to national security cases. First it will play the state secrets card, arguing that a court cannot hear the cases because they include classified national security matters. If that is rebuffed, then it’s on to executive privilege, an argument that the president has authority over certain matters into which the courts cannot intervene. If a court challenges this specious claim of executive privilege, the administration can bring its A-bomb – sovereign immunity. Sovereign immunity is a term that means the government cannot be sued without consent. So, unless the administration agrees that it would love to be sued, sovereign immunity is likely to kill any case in its tracks. The end result is that substitution is immunity in two moves instead of just one.

          From the first link:

          “This substitution proposal does not put up a roadblock to immunity – it just lengthens the journey. Since the domestic spying program was revealed in 2005, the American people have been waiting for an answer as to why the government and the telecoms violated our privacy. We’ve waited too long. We deserve our day in court.”

          • Rayne says:

            Thanks for that.

            You just filled in the next play in the game, which now looks like this:

            I picture a card game here that looks rather like the old children’s game of “War”:

            My court order takes your illegal act;
            Your EO takes my court order;
            My legislation takes your EO;
            Your signing statement takes my legislation;
            My new and improved legislation takes your signing statement;
            Your offshored/contractor-provided act voids my new and improved legislation;
            My Congressional subpoena takes your offshore/contractor acts;
            Your “executive privilege” takes my Congressional subpoena;
            My inadmission of same as not applicable takes your “executive privilege”;
            Your “state secrets” takes my second demand for compliance under subpoena;
            My court finds my lawyer is able to avoid disclosure of classified materials and permits a suit to proceed;
            You declare “sovereign immunity”…

            [sigh]

            At what point can the people, the same ones for whom the government is of, by and for, file suit successfully against its own bloody government?

            • PetePierce says:

              Well done Rayne.

              Very close to what happens every day now in this environment so poisonous to civil liberties.

  33. Rayne says:

    How do we get to a suit before the courts that contests an EO?

    I think that’s part of the problem; they use the pixie dust to obscure our vision and obstruct the path, but it’s used in such a way that we aren’t able to make a full frontal attack on it.

    That goes for signing statements, too; this administration has used both EO’s and signing statements to write law, which is reserved to Congress. They even use it for the purposes of interpreting law, which is reserved to the Judiciary; I’ll even go so far as to say they use the OLC to bypass the Judiciary, using it to interpret the law in lieu of allowing anything to go to the courts, then they obscure the interpretation of the OLC.

    But none of this has been brought up head on in front of the Courts, nor has it been effectively dealt with by Congress which can make the laws that the President is charged with enforcing.

    ??

    • Stephen Parrish says:

      You might want to look at Wikipedia’s article about executive orders for answers to your questions. As for signing statements, could a signing statement be perceived as a line item veto, which the Supreme Court has held is unconstitutional?

      • Rayne says:

        Stephen, we always circle back to Youngstown Sheet & Tube Co. v. Sawyer, but the problem is that we have not yet had a case where we could sue the government as Youngstown did to force the courts to acknowledge that any of the EO’s in question are attempts to make law and do not serve to further any law.

        What’s the case that allows us to file a suit directly against George W. Bush, or against Richard B. Cheney, that results in the same outcome as Youngstown?

        • Stephen Parrish says:

          To answer your question, I don’t know now, and I will need to read again some articles, etc. that I have read in recent months about legislation and case law pertaining to executive orders.

        • bmaz says:

          Boy, have you opened up a can of worms with your question re: Youngstown Steel. Of all the seminal cases in American jurisprudence, that is one of the most difficult to cite as precedence. There is the majority opinion and six, yes SIX, concurring opinions contained within the overall decision. The opinion commonly referred to on the case (especially as to executive power) isn’t even the majority opinion; it is one of the six concurring opinions. All this makes it extremely unwieldy to use. The best answer I can give to your question is that you would need a plaintiff with a directly justiciable controversy (i.e. direct harm or impact from the EO). The impact on the plaintiff would have to be direct and there is a decent argument (although I am not sure about this) that the harm or impact has to be currently ongoing; as opposed to something that happened and is now over. The only thing that currently comes to mind would be Valerie Wilson while the order was being abused to leak information and out her. But she didn’t know at the time, and never attempted particularly to plead it afterwards. If we knew for sure that there was some EO hanky panky definitively going on behind the snooping; maybe that would work. Oh, by the way, it wouldn’t hurt to have an amici the quality of Arthur Goldberg chiming in to help your side….

          • Rayne says:

            Yeah. The Wilson case is the first one that comes to mind, but there must be others, particularly the domestic spying. I have a feeling that the wrong tack was taken by the ACLU, that perhaps the wrong plaintiff was used to file suit — but IANAL, so I can’t readily point to another, better plaintiff and case that could have been used to attack the EO’s and/or state secrets claims in question.

            Of course the easiest thing would be to simply impeach these bastards; they have failed to “faithfully execute” the laws of the land, demonstrating bad faith regularly and systematically as documented by EO’s and signing statements and a gross lack of transparency that is expected of all individuals and corporations in this country.

          • emptywheel says:

            Well, that’s the big question, isn’t it?

            You lawyer types keep reading these things like up is up.

            It’s not, not unless you can find a way to litigate it and make up up again. Laughing won’t work. We need to find a way to blow this shit out of the water…

            • bmaz says:

              Ah, the master of the understated obvious! But seriously, as you know, even if we knew of the EO “hanky panky”; with the state secret crap, we still are unlikely to be able to rustle up a plaintiff that can definitively establish standing. I suppose even if Plame had effectively plead the issue, Bates would have just termed it an important and valid issue that nevertheless could not be litigated….

  34. Mary says:

    skdadl – I think you have that right. As a matter of fact, the Nazis did have legal opinions formulated to support their policies. One of the more famous of those giving “legal” foundation to the Nazi policies was Carl Schmitt – see what his policies sound to you like:

    http://en.wikipedia.org/wiki/Carl_Schmitt

    He posits that the Executive has the ability to, in a state of “exception” put all he does outside the parameters of law. And not only that, but it is the Executive itself that decides when such a state of exception exists, for what purposes, and how far the Executive can go (i.e., as far as he decides he wants).

    The OLC could really just have pulled up the Nazi apologist’s legal doctrines and name-changed.

    Although the German concept of Ausnahmezustand is best translated as state of emergency, it literally means state of exception, which Schmitt contends frees the executive from any legal restraints to its power that would normally apply. The use of the term “exceptional” has to be underlined here: Schmitt defines sovereignty as the power to decide the instauration (establishment) of state of exception …
    Through the state of exception, Carl Schmitt included all types of violence under right, linking right & life (zoe) together, and thus transforming the juridical system into a “death machine”, creating an Homo sacer.

    It’s not that they didn’t have a legal opinion for what they did, it’s that it was a corrupt and specious one.

    And while I’m not a “fitzer” and I couldn’t find many heroes in DOJ if you put them in tights and gave them big capes, there have been a couple, here and there. They don’t get the press and profile of some, like Comey, who I think deserve much less, but here’s one with no name attached. During the switchover from FBI questioning to CIA torture of Zubaydah:
    http://www.newsweek.com/id/74317

    . One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.

    No name mentioned, but I can’t help but think of Dan Coleman. And it’s interesting about Coleman. While anonymous sources crop up here there and everywhere and spin their own fairytales that make them look good but let them avoid any confrontations on “classified” info – – Coleman has stood up (Cloonan too for that matter) and under his own name said what he needed to say and pretty much thrown down the: “you really believe that crap is ‘classified intelligence’ instead of criminal cover up, you come charge me puppies”

    And no one has.

    I can not get over how much he has been exactly what American good guys are supposed to be – and how little press it garnered. Just about everytime I felt like the muck would rot the flesh of this nation to its bones before it can be scraped off, it helps a little to dig out the real deals.

    Like Mike Fallon http://www.msnbc.msn.com/id/15361458/ and Alberto Mora (same link).

    And as for going ahead and engaging in depravity just because you have a piece of paper that purportedly grants you license? Fallon and Mora demonstrate the answer:

    “What makes me intensely proud of all these individuals was they said, ‘We will not be party to this, even if we’re ordered to do so,’” said Alberto J. Mora, the former general counsel of the Navy, who ultimately got Secretary Rumsfeld to roll back permission for some of the harshest interrogation techniques. “They are heroes, and there’s no other way to describe them. They demonstrated enormous personal courage and personal integrity in standing up for American values and the system we all live for.”

    emphasis added.

    **********
    **********
    And back to the original posts issues. There can be and have been classified Executive Orders. So a “classified” revocation might be a possibility in the abstract sense, but even so IMO there would be a requirement for a public note that the EO has been amended by a classified EO so that, under the Nat Sec Act of 1947, Congress knows enough to make sure that the applicable briefings take place.

    While EOs are not law, they stand in the place of statute for agency actions in areas where Congress has not spoken. So what you are really getting at is the willful deceit and obstruction of Congress by passing secret EOs and leaving the public EOs seemingly undisturbed. So you end up with “secret law” that usurps existing “public law.”

    What kind of society would tolerate that?

    BTW – was this a “backatcha” to Cheney from Gates?

    Seems Cheney and the Bush Law Firm fka DOJ have been happy to tromple Gates’ plans to close GITMO.
    http://www.ft.com/cms/s/0/671f…..fd2ac.html

    Robert Gates, the defence secretary, told Congress in September that his push to close Guantánamo had run into “obstacles” from administration lawyers. But he assured senators the Pentagon was drafting a proposal that he hoped the administration would approve and then send to Capitol Hill.

    But three months on, the lawyers have made little headway. In addition to facing complex legal issues involved in closing the prison and transferring detainees to the US, they are running into opposition from other parts of the administration, including Dick Cheney, the vice-president.

    emph added

    And oddly enough, it now seems that the chief GITMO tribunals judge – wrote a paper in 2002 that called the tribunals a pretty sucky idea (ok, maybe not in those particular words)
    http://www.nytimes.com/2007/12/13/us/13gitmo.html

    The system, Judge Kohlmann wrote in 2002, would face criticism for the “apparent lack of independence” of military judges and would have “credibility problems,” the very argument made by Guantánamo’s critics.

    He said it would be better to try terrorism suspects in federal courts in the United States. “Unnecessary use of military tribunals in the face of reasonable international criticism,” he wrote, “is an ill-advised move.”

    • skdadl says:

      Mary, thank you so much for those links and that discussion. I’ve been reading about Carl Schmitt (my very straight hair curling all the way), and I can certainly see why Leo Strauss would have been interested. I’m also practising my creaky German accent on Ausnahmezustand, which I can’t quite yet believe is a realistic threat, and yet …

      Oh, I fear for us all. Our only defence is lots and lots of people who grasp what democracy actually is, and also that it is not that.

  35. Mary says:

    71 – 89 – 131

    I don’t think you can really get anywhere in that conversation without specific examples. There is no general law that says the President cannot declassify indiscriminately (and in general, more declassification is more better in my book in the very general sense). OTOH, there are laws that apply to particular types of things (like intentionally disclosing a cover agent’s identity vis a vis the IIPA). And there are things that are not “declassification” (like cherrypicking intel to misleadingly plant a non-attributed story of information that has not been declassified with a willing reporter to achieve political purposes in violation of the domestic propaganda laws) etc.

    So you need examples of what is being declassified and how to get anywhere IMO FWIW

  36. selise says:

    ot – yep confirmed. reid just said that he intended to file for cloture on the fisa bill tomorrow. guess we may have to wait until then to see which bill(s) will be submitted.

    • PetePierce says:

      Selise–

      ot – yep confirmed. reid just said that he intended to file for cloture on the fisa bill tomorrow. guess we may have to wait until then to see which bill(s) will be submitted.

      Were you able to find out today (I coudn’t anywhere)if SJC took ation on the Specter Bill Sect. 2042 today–or possibly the Bill is S.2042. I couldn’t find any info on this. Also if there was action by SJC today, how did it impact Reid’s filing for cloture tomorrow?

      • selise says:

        specter’s bill is s.2402. i think it failed in committee (which is how i interpret the wired article) – that leaves two bills (from the intelligence and judiciary committees). i’m sure we’ll be able to get more info tomorrow, unless anyone here has a subscription to cq.com (or similar) for an update tonight.

        but for now, i think what is happening is that reid will file for cloture tomorrow. The senate will be in session on Saturday, which means that the cloture vote will take place on Monday – I think just one hour after the start of the day.

        • PetePierce says:

          Thanks much for your alert “headsups.” I keep thinking there are some sophisticated sites for hawking Congress or blogs that cover them the way say the Scotus Blog or Sentencing blog covers their topics or Bashman that would subspecialize in following Senate or House committees or even SJC that Beltway people might know that I don’t.

          I was able to find out this (not much precision) or who said what –somewhere there is a bogger who attended, maybe EFF later.

          President unlikely to see wiretap bill until next year

          “On Thursday, the Judiciary Committee voted down a proposal from Sen. Arlen Specter that would have allowed the 40 or so lawsuits that have been filed to go forward, but it would have made the government the defendant in those suits, not the telecoms. Specter, the committee’s ranking Republican, could re-introduce his amendment when the FISA update comes to the Senate floor.”

          I would like to know how the vote went and who said what, but without a live blogger or feed or C-Span that’s tough to do. I can track bills wth site, but not committee votes and markup actions.

          I imagine you saw the letter to Reid I posted–14 Senators agans immunity including some of the Presidential racehorses here:

          14 Senators Urge Majority Leader to Take Up Senate Judiciary Committee Version of FISA Bill

          The Senators expressing their support for the SJC FISA bill in a letter to Senate Majority Leader Reid are Senators Russ Feingold (D-WI), Chris Dodd (D-CT), Barack Obama (D-IL), Bernie Sanders (I-VT), Robert Menendez (D-NJ), Joe Biden (D-DE), Sherrod Brown (D-OH), Tom Harkin (D-IA), Ben Cardin (D-MD), Hillary Rodham Clinton (D-NY), Daniel Akaka (D-HI), Jim Webb (D-VA), Ted Kennedy (D-MA), and Barbara Boxer (D-CA).

          I don’t want to make to much of who didn’t sign the letter–lots of Holiday parties to go to for them, but I know two things.

          1)Reid seems inclined to try to provide immunity for reasons someone else might be able to analyze.

          2) Bush will veto any bill without immunity and whaever McConnell wants and Addington and Gillespie tell him he needs.

          • selise says:

            one of the problems with following Senate and House committee hearings is that during a busy week there could be upwards of 80 hearings. only a few are covered by c-span, more (but not all) by live webstreams and until recently very few committees had archives of their hearing webstreams. for those of us without access to lexis-nexis, a subscription to cq.com (for hearing transcripts) is about $1000/year.

            even just finding out what hearings are going to be held is not always straight forward. i go through all the committee’s websites and several compilation sites (plus being on a ton of email lists) several times a week to compile a weekly list of hearings.

            the good news is that the data availability is improving rapidly, and i expect within the year i will no longer be compiling the weekly list of hearings and that online access to hearing video, audio and transcripts will see revolutionary improvement – we’ll then be able to develop our own expertise and then exercise better oversight of our congress (thanks to the open house project and the sunlight foundation)

            • PetePierce says:

              Yes–the CQ site and pubs are very good. I need to keep looking for a one stop shopesque site that would have comprehensive web streaming and archiving but I’m not sure a free one exists.

              Maybe in the future. That would increase access to at least what they did and said on camera.

              even just finding out what hearings are going to be held is not always straight forward. i go through all the committee’s websites and several compilation sites (plus being on a ton of email lists) several times a week to compile a weekly list of hearings.

              I imagine many schedules are changed at the last minute for a million reasons.

              the good news is that the data availability is improving rapidly, and i expect within the year i will no longer be compiling the weekly list of hearings and that online access to hearing video, audio and transcripts will see revolutionary improvement – we’ll then be able to develop our own expertise and then exercise better oversight of our congress (thanks to the open house project and the sunlight foundation)

              I’m hopeful that will happen. I’ll have to read up on those projects.

          • masaccio says:

            Given the timing, Bush cannot veto a bill that doesn’t contain immunity. It would reinstate prior law, an outcome most of us want, and he desperately wants to avoid.

            • Hmmm says:

              What day does PAA lapse, and therefore FISA of Olde once again obtain? Because if there is no W-acceptable alternative before then, that’s exactly what will happen.

              Hey, what case would you want to bring under FISA of Olde? Might get a chance soon.

              Hmmm.

              • PetePierce says:

                It does sunset Feb. 1, but Congress isn’t back until Feb. 14 and I believe, (someone will correct me if not), that any order in effect on the day it expires shall be in effect until its court ordered expiration, which may be up to a year.

            • PetePierce says:

              Given the timing, Bush cannot veto a bill that doesn’t contain immunity. It would reinstate prior law, an outcome most of us want, and he desperately wants to avoid.

              Forgive me if I’m slow on the uptke masaccio, but I’m not sure what you mean. Why couln’t Bush veto any bill he chooses to?

              The PAA expires Feb. 1, but Congress does not return to session until the week of Feb. 14.

              I’ve also read that

              Any order in effect on the day it expires shall be in effect until its court ordered expiration, which may be up to a year.

              Orders issued in February 2008 – immediately before PAA expires- will be in effect until February 2009.

              Any amendment can of couse be added on the Senate floor, and I’m not sure why Bush can’t veto anything he doesn’t like–and Telco immunity is obviously one thing he wants.

              A Tale of the Three Mikey Musketeers–aka Bush puppets:

              Bush and Gillepie sent the two Mikeys, Hayden and McConnell to the Hill today and Gillespe having his lackies McConnell and Mukasey (a third Mikey) write op ed pieces this week aimed at the lowest common denominator of intellgence.

              • masaccio says:

                A veto is only a threat if Congress wants the bill. Congress could live with a veto, which would restore the old law, and progressives don’t want the bill. So threatening a veto if congress doesn’t include immunity is meaningless.

                • PetePierce says:

                  It’s been a long day, and I don’t want to be intellectually lazy or dense, but I don’t follow you.

                  Where does the old law stand on Telco immunity?

                  I wonder if everyone realizes how any other reprehesible portions are now part of this bill beside Telco immunity that LHP, many others here, Christy, and EW have alluded to:

                  “Protect America Act” (S.1927) is an emergency overhaul of the 1978 Foreign Intelligence Surveillance Act (FISA).

                  Allows electronic surveillance of a foreign target without a FISA court warrant, even when the communication involves a U.S. national.

                  Grants the Attorney General the authority to issue year-long program warrants – without FISA court approval — for surveillance of people reasonably believed to be outside of the United States.

                  This means that now, American phone calls, emails and internet use with an individual outside the U.S. can be recorded and examined by the U.S. government without probable cause.

                  Inadequate “minimization procedures” in PAA do not protect U.S. citizens from invasion of privacy.

                  “Minimization procedures” are secret procedures established by the government to discard communications involving a U.S. citizen that were unintentionally collected.

                  NSA Director Mike McConnell claims “minimization procedures” will protect U.S. citizens. Yet, under the PAA, there is no legal requirement to destroy communications of U.S. citizens or in any way prevent them from being used or disseminated. Furthermore, there is little Congressional or court oversight of these procedures.

                  No protection from reverse-targeting in the PAA for U.S. citizens.

                  Under PAA, there is no independent oversight to ensure that the government is not claiming to monitor a foreign national with whom a U.S. citizen is in contact with, while actually monitoring the U.S. citizen without a warrant.

                  Under the PAA, communications service providers are required to cooperate with warrantless government requests.

                  The Attorney General or the Director of National Intelligence can issue year-long program orders to obtain “foreign intelligence information from or with the assistance of a communications service provider” that “concern” a person outside of the U.S.

                  Communication providers are required to cooperate with surveillance requests and acquire immunity from lawsuits.

                  The government is granted the ability to tap directly into telecommunications facilities.

                  The PAA does not address the liability of telecommunication companies who cooperated with President Bush’s illegal national surveillance program following September 11th, 2001. President Bush has asked that the subsequent bill establish immunity for these companies.

                  FISA court has little authority over surveillance procedures that are established by the Attorney General and director of national intelligence.

                  The government is not required to report to the court how many Americans are wiretapped or what is done with those communications.

                  The FISA court can only reject the procedures if they are “clearly erroneous.”

                  Weak oversight from Congress.

                  The Attorney General has to report to the Intelligence and Judiciary Committees of Congress twice a year but is not required to report on how many calls by U.S. citizens the program has incidentally picked up or how many U.S. citizens have become targets.

                  • bmaz says:

                    Crikey, if that was your lazy post; I can’t fathom what results when you are ginned up! I was thinking about the point you reminded us of about actions under the PAA being valid for a year after sunset. It occurs to me that the Administration could accomplish much of their nefarious goal simply by entering a bunch of last minute program orders; but the one thing they can’t get that way is the telco immunity. I assume this is their fallback position. It certainly doesn’t mean we are back to square one upon sunset; at least not for a year.

                    • PetePierce says:

                      I should have added that of course I referred to the current sunsetting PAA, which I believe could be extended by EO for a year–I’m going to read it’s provisions closely tomorrow looking for ways it can be extended. If I’m confused Bmaz or others, jump on me.

                      I’m not as seasoned and indepth “a legislaive history” watcher in terms of bill manuevering as many of you are, but my interest has turned up exponentially with BushCo and this Congress.

                      I long ago decided “legislative history” as a heading in federal case law seems to be at the whim of the law clerk(s) writing the opinion that gets signed.
                      Bmaz I think that’s the fallback position. An EO extension gives them time to gin up the phony fear for MSM and “the people”.

                      I believe that there are many backroom meetings over booze right now, and that any permutation and combintion of some of the points I’ve outlined could be in the bill that ultimately becomes law.

                      Weak Congressional oversight and a wide latitude of discretion by DOJ and DNI are certainly strong in all versions I’ve seen so far.

                    • bmaz says:

                      Pete – As I recall, the PAA itself goes away at sunset, but programs initiated under it live on for up to a year. I’ve got to go back and read that part. It is more restricted than I am letting on, but can’t remember the specifics. It still occurs that much mischief can be left in place post sunset….

  37. readerOfTeaLeaves says:

    Pixie Dust would be used by two kinds of people:
    – a criminal bent on hiding evidence of their crimes in order to prevent discovery, and/or
    – a poor reader who actually interprets text so literally that they think the words on the page contain the complete meaning; no need to reference prior documents (like Case Law or other antecedents) for allusions, analysis, or further mastery.

    A criminal might have learning disabilities and be a poor reader; in which case, both motives converge in the same individual. They don’t understand complex written information, therefore they tend to make poor (and illegal) decisions. Consequently, they have things they need to hide, which they think that they can do by ‘overwriting’ (think check fraud). Which means they have more things to hide… and the use of Pixie Dust becomes more frequent and extravagant.

    Either way, Pixie Dust is a symptom of erratic, unstable, superficial efforts to deal with complexity, and/or desparately build a barrier against insurmountable problems. The longer Congress lets this mess continue to unravel and fester, the bigger the mess becomes.

    Pixie Dust is sheer bamboozelment, and for the Dems to fail to expose it as a laughable, desparate folly is absurd. As LHP says elsewhere, it’s ridiculous.

  38. wavpeac says:

    Okay, I know that the discussion about impeachment on Moyers was not a technical discussion but both Bruce Fein and John Nicols believe that impeachment is imperative. They both discussed how the constitution was being violated and how this is the exact reason that impeachment exists as an option. So could you lawyer types help me understand the problem with the argument that these men make about grounds for impeachment? The argument seemed so eloquent. It didn’t matter whether there was a risk of losing because the risk of doing nothing was far worse. (according to both these men).

    So, if you who have legal knowledge, wisdom, and expertise and have not seen the discussion please watch it and give me a legal analysis of it. I haven’t heard any law folks comment on the discussion. What did they not cover? (and have it for me by tomorrow)…just kidding…but I am thirsty to hear what legal eagles have to say in response to this discussion. From my naive perspective, I was sold!!

    “The founding fathers expected an executive who tried to overreach and expected the executive would be hampered and curtailed by the legislative branch… They [Congress] have basically renounced — walked away from their responsibility to oversee and check.” — Bruce Fein

    “On January 20th, 2009, if George Bush and Dick Cheney are not appropriately held to account this Administration will hand off a toolbox with more powers than any President has ever had, more powers than the founders could have imagined. And that box may be handed to Hillary Clinton or it may be handed to Mitt Romney or Barack Obama or someone else. But whoever gets it, one of the things we know about power is that people don’t give away the tools.” — John Nichols

    http://www.youtube.com/watch?v=S2rqww-eOIs

    http://www.pbs.org/moyers/jour…..ofile.html

    • bmaz says:

      They both discussed how the constitution was being violated and how this is the exact reason that impeachment exists as an option. … It didn’t matter whether there was a risk of losing because the risk of doing nothing was far worse.

      Why Katie, there is no problem whatsoever with that logic and those statements; that is exactly what I have been saying for years, and certainly the whole time I have been around here. The only problem is our Democratic House leadersheep won’t do it. That is the sole fly in the pie. I would even hazard decent odds that with an impeachment investigation, with its much heightened powers and rights to invasive discovery, a strong enough case could be made out that convictions could result. But even if conviction failed, the effort is, indeed, necessary.

  39. MadDog says:

    I’m very late to this thread (long, long day), but I’ve scanned each comment to ensure that this wasn’t redundant to someone else’s comment.

    A couple of points with regard to EO 13292:

    1. In Section 1.2 (b) it reads:

    Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.

    Deadeye and his lackeys Scoots and Addington have been violating this part of the EO. Remember from the Libby trial, there are OVP documents that are stamped something like “as if Secret”.

    The above quoted section says that’s a no-no!

    2. Far more importantly to this discussion, are the contents of Section 4.2 (b) which read:

    In an emergency, when necessary to respond to an imminent threat to life or in defense of the homeland, the agency head or a designee may authorize the disclosure of classified information to an individual or individuals who are otherwise not eligible for access. Such actions shall be taken only in accordance with the directives implementing this order and any procedures issued by agencies governing the classified information, which shall be designed to minimize the classified information that is disclosed under these circumstances and the number of individuals who receive it. Information disclosed under this provision or implementing directives and procedures shall not be deemed declassified as a result of such disclosure or subsequent use by a recipient. Such disclosures shall be reported promptly to the originator of the classified information. For purposes of this section, the Director of Central Intelligence may issue an implementing directive governing the emergency disclosure of classified intelligence information.

    A couple of takeaways are of interest here.

    First, I’d bet that Deadeye would claim (if ever adversarily questioned), that in the matter of Ambassador Joe Wilson’s Op-Ed, Deadeye’s “declassifications” were “in defense of the homeland” as bolded above.

    Secondly, if Deadeye were in fact to claim such a defense, the latter bolded text of “the agency head” would destroy his putative claims that the OVP is not an “agency” as far as record-keeping and classified material handling is concerned.

    And now I relinquish the floor for any who may wish to speak. *g*

    • bmaz says:

      Good work Mad Dog! Now, unfortunately, I have more for you. Sara has problems accessing this site. You were so outstanding with our early problems in transfer, would you be willing to exchange a couple of comments with her and see if she can be debugged? There is no hurry to do it this minute or anything. I had her leave her computer facts here, but she needs to give a better description of her symptoms. I am a great facilitator, but am lame on the tech. I would be in your debt if you could assist in the next couple of days. Thanks much.

        • bmaz says:

          That would be really cool, and I know Sara would be very appreciative. I await opportunity to make good on repayment of the courtesy in any way I can; just let me know.

        • klynn says:

          BTW-

          Again, you are “to the rescue!” You are amazing! Thanks again to you and bmaz for helping all of us make it EW’s new digs!

          I was a “day late and a dollar short” on this thread. Yesterday, when I would click the “read more” the page would open to the comments and freeze. I could only read the first few comments in this thread. I seem to be having “little bugs” here and there every few days.

          For instance, I hit preview for my comment above and it submitted it instead. Thus, the typographic errors. In time…

  40. wavpeac says:

    Thanks Bmaz, I would like someone somewhere to force Pelosi to speak to this discussion. I also would like to hear the each of the candidates respond. crap. I just want someone to do something!!

    What can we do when oversight fails. What are the options for the american people. It seems to me that most folks are now aware that the emperor and his tailor are naked. We just don’t have a “tool” to use to organize and make our voices heard. The old tool isn’t working. (hmmm somehow I like the sound of an emasculated bush/cheney…broken tools) It seems like we must come to some kind of acceptance of this and do something else that does work. We are in need of some new tools. A new movement. Where’s the cheese? The system is broken, how in the hell are we going to fix it?

  41. TheraP says:

    Am following this amazing discussion. And along with the lobster, just want to say: BRAVO!

    I especially love this line by ReaderOfTeaLeaves:

    Either way, Pixie Dust is a symptom of erratic, unstable, superficial efforts to deal with complexity, and/or desperately build a barrier against insurmountable problems.

    That line reads like it could come from a psych report on a seriously disturbed person…. and makes me wonder how long before said person decompensates.

  42. PetePierce says:

    Well for some reading, here are some of the bills in play. I include Specter’s because I believe Arlen or someone will offer it up as a floor amendment or in Joint Conference Committee.

    Congress Reforming Government Surveillance Authority

    House passed the RESTORE Act (H.R. 3773)

    Specter’s Substitution

    S. 2048 Reported out of SSIC (Rockerfeller’s)

    The Senate Judiciary Committee narrowly passed the FISA Amendments Act of 2007 (S. 2248) (above) without telecom immunity provisions that were included in the Senate Intelligence Committee bill.

    Blogs on 2248

  43. JohnLopresti says:

    MLederman linking to Boalt author’s recommendation90pp to reconfig panoply of intell agencies to address multinational stateless terrorist entities; already saw some things in there The Company might eschew, but plan to read when time.
    CKelley has limited timespan link to a nice review of signing statements but nary an Executive Order mention, as far as first skim can tell; some commenters, above, seemed to want a condensed overview 12pp; since the preview is at Blackwell’s, which is usually a paysite, best to try from the diary there.

    Nice work on the draft laws and interactive EOs; when I have more time.

  44. JodiDog says:

    Look!

    Let’s just skip to the bottom line, Please!

    Dick Cheney is the MAN!

    He don’t need no stinking badge.

  45. bmaz says:

    From Wired, the Protect America Act:

    Defines the act of reading and listening into American’s phone calls and internet communications when they are “reasonably believed” to be outside the country as not surveillance.

    Gives the government 6 months of extended powers to issue orders to “communication service providers,” to help with spying that “concerns persons reasonably believed to be outside the United States.” The language doesn’t require the surveillance to only target people outside the United States, only that some of it does.

    Forces Communication Service providers to comply secretly, though they can challenge the orders to the secret Foreign Intelligence Court. Individuals or companies given such orders will be paid for their cooperation and can not be sued for complying.

    Makes any program or orders launched in the next six months last for a year after being authorized.

    Grandfathers in the the current secret surveillance program — sometimes referred to as the Terrorist Surveillance Program — and any others that have been blessed by the Foreign Intelligence Surveillance Court.

    Requires the Attorney General to submit to the secret surveillance court its reasons why these programs aren’t considered domestic spying programs, but the court can only throw out those reasons if it finds that they are “clearly erroneous.”

    Requires the Attorney General to tell Congress twice a year about any incidents of surveillance abuse and give statistics about how many surveillance programs were started and how many directives were issued.

    Makes no mention of the Inspector General, who uncovered abuses of the Patriot Act by the FBI after being ordered by Congress to audit the use of powerful self-issued subpoenas, is not mentioned in the bill.

    So, as we discussed above, programs initiated within the effective period of the PAA continue on for a year. So the Bushies can basically run out the clock with their programs intact irrespective of the sunset of the PAA and reversion to the version of FISA in place as of August 5, 2007. So, for all those thinking there is some major victory in forcing the sunset of the PAA and corresponding reversion to FISA; you aren’t getting what you think you are.

    • PetePierce says:

      Yes, thanks for steadying me Bmaz–that’s as I thought, and I still don’t follow Masaccio’s point on Bush’s veto:

      Masaccio @ 178:

      A veto is only a threat if Congress wants the bill. Congress could live with a veto, which would restore the old law, and progressives don’t want the bill. So threatening a veto if congress doesn’t include immunity is meaningless.

  46. pseudonymousinnc says:

    In other words, somewhere in his kingdom of Pixie Dust, Bush has secretly given Dick the power to declassify anything the President can declassify (in addition to the classification authority Bush gave Dick explicitly).

    I think that this has long been implicitly clear. It’s just that the rationale has always been danced around, or, worse, been treated as ‘well, we just can, okay, so shut up, there’s a cell in Gitmo waiting for you’.

  47. bmaz says:

    I think masaccio is among those saying that Congress, as led by the Democrats, can live with just letting the PAA sunset, so they are not afraid if Bush vetos a bill they pass without immunity. And I may have been abrupt above when I chastised people thinking it is a win just to let it sunset. Not a win as to the Bushies, but after the year extension the programs would get, things would truly revert back to the status of 8/5/2007; and that would be a lot better than a permanent pile of junk, not much help in the meantime though.

  48. wigwam says:

    But the EO in question–EO 12958 as modified by EO 13292–says no such thing. The modified EO gives the Vice President to classify information.

    The emptywheel grinds exceedingly fine.

  49. selise says:

    excellent fisa summary and update from glenn greenwald this morning.

    The summarized version is that there were two competing bills which Reid could have brought to the floor — the Senate Intelligence Committee version engineered by Jay Rockefeller and Dick Cheney which gives the administration most of what it wants, and the Senate Judiciary Committee, which does not contain telecom amnesty and contains far more extensive oversight protections. Reid could have brought the bill to the floor using whatever process he wanted, and he has decided — contrary to weeks of assurances — that the SIC bill will serve as the “base” bill, meaning that improving it (by removing amnesty and increasing oversight) will require 60 votes, rendering such efforts virtually impossible. In doing so, Reid is brazenly ignoring the demands of 14 Senators — including all of the Democratic presidential candidates — to have the Judiciary Committee bill be the base bill.

    Worse still, Reid is completely disregarding the “hold” placed by Chris Dodd on any amnesty bill — simply refusing to honor it, even as he respectfully honors literally scores of “holds” from GOP Senators such as Tom Coburn. And while Dodd is interrupting his campaigning to fly to Washington to lead the filibuster he vowed, Reid has ensured with scheduling manuevers that the filibuster will take place only over the weekend — when all of the members are away raising money anyway and journalists aren’t paying attention — with the intent to try to force cloture once everyone returns on Monday.

    procedurally this is also my understanding from what reid said on the sentate floor yesterday: reid will file for cloture today. the senate will be in session on saturday, which means that the cloture vote will take place on monday (i think just one hour after the start of the day).

    glenn adds a bit that i didn’t know – that reid is going to bring the senate intelligence committee version of the bill to the floor. if that is so, it is a major bit of fuckery… designed to use senate procedures to support of the administration’s preferred bill while blocking the better bill which is supposedly supported by his own caucus. we’ve seen this kabuki before – it was exactly how the house leadership was able to get the PAA passed this summer (although in that case, house rules were manipulated and now it is senate rules).

    • klynn says:

      This is big selise.

      What do you recommend? Can we start flooding with calls/emails now? What is up with Reid?

      I hope Dodd thinks of a way to make a BIG media splash with this. I wonder how we could make that happen?

      • selise says:

        What do you recommend?

        i second glenn’s recommendations:

        There are two key objectives for today: (1) do as much possible to pressure Reid to honor Dodd’s hold and (2) do as much possible to encourage the presidential candidates and others to actively support Dodd’s filibuster, not merely in a cursory way, but through authentic leadership.

        if your address book / email program / contacts list on your pc, mac or smart phone is compatible with vCards, i’ve made up a vCards for every senator (with phone number, fax number, etc) for just this purpose- you can download them here. please note there are 101 contacts – the extra one is kaymine’s list of toll free numbers for the capitol hill switchboard.

  50. Jeff says:

    You all see where I’m going with this–but that’s going to have to wait until the next post.

    Sort of, but there remains considerable suspense. Will emptywheel argue 1)that beforehand and with foresight Bush authorized Cheney to declassify either a)whatever he wanted, including in the event Plame’s identity or b)Plame’s identity specifically; or 2)that Fitzgerald became aware either a)just in general, or b)because Cheney or another suspect made clear to him, that Cheney and Bush and Libby were in an airtight position on the underlying conduct because they could argue that Cheney in effect had declassification authority from Bush and under Bush’s secret modification of EO 12958?

  51. klynn says:

    selise,

    This is great. I agree with glenn’s suggestions but I am trying to come up with a “shot over the bow” for Dodd to catch the media’s attention and of course Reid’s.

    Whitehouse needs to stand by Dodd. Dodd needs to stand by Whitehouse.

    • selise says:

      feingold is supporting dodd.

      but don’t forget that whitehouse voted twice for immunity in the SIC, and never to my knowledge, explained his vote. he could certainly use some calls today. but especially reid (who should be bringing the SJC version to the floor) and the presidential candidates (who should be present and helping lead the fight if they truly are opposed).

    • JimWhite says:

      Sadly, I was reminded a couple of days ago that Whitehouse was one of the votes for retroactive immunity in the Senate Intelligence Committee. I know, that’s just staggering in light of his later, inspiring speeh on Executive Orders. Maybe we could at least point out the love he got in the progressive community for that speech and how much more he could get by reversing his terrible position on retroactive immunity.

      • klynn says:

        Jim and selise:

        Yep, I know Whitehouse voted for retroactive immunity. In light of his speech last week, we need to call Whitehouse and push him to explain how his vote for reto immunity. How is it different from Bush’s EO’s in the sense of constitutional soundness. One cannot give such an amazing speech which centers on presidential praxis and policy being constitutionally unsound and then undue your profound insight on the Constitution with a vote on retroactive immunity.

        I would like to see Whitehouse and Feingold back Dodd. It would start a snowball and Reid would have his hands tied.

  52. Leen says:

    Selise I will be making phone calls. Here is what I am not clear on. Does the Senate Intelligence committee bill that you referred to as part of Cheney’s work give retroactive immunity to the telecoms from Sept 11 to whenever or does it give them retroactive immunity even before that?

    There has been some discussion here and at other blogs that one of these wiretapping/datamining programs started before sept 11.

    And am I clear about this that the other bill (supported by Dodd) does not provide any retroactive immunity?

  53. radiofreewill says:

    The Classification Authority for the “Treated as Secret/Top Secret” Compartmentalization of Bush’s “Insta-De-Classification and Secret Missioning of Libby through Cheney to Leak to Miller” almost certainly had to be Bush.

    The evidence of the Compartmentalization of that De-Classification Activity and Missioning is like ’seeing’ the iron filings align around the poles of a magnet – the Compartmentalization reveals the tracks of Bush’s Pixie-Dusting.

    Bush hid his De-Classification and Secret Missioning Activity from the Standard Control-Log Security Protocols – from which he “De-Classified” that “something” that was Leaked to Miller to begin with.

    IOW, Bush “covered-up” the Leak he authorized and ordered through Cheney and Libby, so that it would not appear in the Control-logs of the Standard Security Protocols from which he got the information – even if Tenet told Bush verbally that Valerie Plame Wilson works in CPD in a Classified Position, that would have been ‘logged’ in the standard format.

    Who knows how many EOs were Pixie-Dusted by Bush to engineer the Secret Leak of that “something?”

  54. TheraP says:

    iron filings and magnets…. good analogy. But it’s like the earth over time. If you go back geologically, you can see that the poles have shifted and you can see where the electrons are pointing… That’s what you’re looking for … where were the electrons pointing at different points along the trajectory of events.

  55. Leen says:

    “Another highly regarded intelligence agent, Larry Johnson, goes the next step. He’s reasonably certain, he says in a radio interview, that President Bush has personally viewed the torture tape–the same tapes that were destroyed to avoid having to turn them over under a federal court order.”

    http://harpers.org/archive/2007/12/hbc-90001903

    There’s a window of time from his turkey day Baghdad visit that he could have personally visited Abu Gharib or other nearby jails and prisoner facilities.

    The great Harper’s piece continues:

    So let’s start with this quiz. What president issued this urgent cable after receiving information about the use of waterboarding by American soldiers overseas?

    THE PRESIDENT DESIRES TO KNOW IN THE FULLEST AND MOST CIRCUMSTANTIAL MANNER ALL THE FACTS . . . FOR THE VERY REASON THAT THE PRESIDENT INTENDS TO BACK UP THE ARMY IN THE HEARTIEST FASHION IN EVERY LAWFUL AND LEGITIMATE METHOD OF DOING ITS WORK. HE ALSO INTENDS TO SEE THAT THE MOST VIGOROUS CARE IS EXERCISED TO DETECT AND PREVENT ANY CRUELTY OR BRUTALITY AND THAT MEN WHO ARE GUILTY THEREOF ARE PUNISHED. GREAT AS THE PROVOCATION HAS BEEN . . . NOTHING CAN JUSTIFY . . . THE USE OF TORTURE OR INHUMAN CONDUCT OF ANY KIND ON THE PART OF THE AMERICAN ARMY.(caps his)

    His name was Theodore Roosevelt.

    Then again, President Roosevelt rode into combat with the Rough Riders. Bush bumbles through bike rides at Camp David. One man knew what war was like and what it did to others who served. One likes war and knew that he would send others.

    • JimWhite says:

      Leen,

      The Roosevelt quote was featured yesterday in an OpEd in the Miami Herald:

      The dispatch of a strong presidential message and the follow-through with appropriate investigation and sanctions would do much to restore our place in world opinion and integrity in our dealings with detainees in Iraq and elsewhere. Instead of providing leadership, the administration has tried to block real investigation, preferring to construe out of existence congressional measures that would restrict the use of ‘torture or inhuman conduct.’ This has been done with the complicity of the Department of Justice, which is now under new leadership.

      http://www.miamiherald.com/851/story/341376.html

      The author was Talbot D’Alemberte, former President of the American Bar Association and former President of Florida State University.

    • Jeff says:

      Very provocative comment from Larry Johnson which is explosive, if true. Did he indicate what the basis for his “reasonable certainty” that Bush had viewed the destroyed torture tapes was?

  56. LS says:

    In consideration of Larry Johnson’s comments, I could see the following as a possible scenario.

    If you think about the mindset of Bushco back in 2002, it is clear that they were consumed with creating a rationale in order to invade Iraq. Prior to October, 2002, the only AUMF was the one that stated that the targets of force had to have a connection to 9/11. It wasn’t until October, 2002 that Congress authorized the use of force against Iraq. The torture tapes presumably predate the Iraq authorization. They were looking for something that could fit into the first AUMF, not the second one. Also, supposedly, the torture stopped during 2002. Maybe it stopped on those particular people, because they didn’t need it anymore, because they finally got the Iraq AUMF in October. Prior to the Iraq AUMF, I believe that they were hoping they could torture info out of someone saying Saddam was involved in the planning of 9/11 in some way. It makes sense to me that W did view the tapes in the run up to the war in Iraq, which is what I think this was about…not about terrorism and OBL. It makes sense to me that he wanted to hear what the tortured person “admitted” to, and to see how they got the information so he could further use it to formulate and support his agenda to invade Iraq. It makes sense to me that he most likely viewed it with Cheney and perhaps others. I don’t think he viewed it in order to determine whether any of it was torture, but just to hear and see how his authorized harsh interrogation techniques worked. It also makes sense to me that someone told Bush and or Cheney that those particular pre-Iraq AUMF tapes were being requested in court proceedings later. It makes sense to me that he and/or Cheney would personally order the tapes to be destroyed, in 2005; because they didn’t want anyone to know the real reason they were torturing those particular people, in addition, to being vulnerable to war crimes.

    This is obviously complete conjecture on my part…but it makes sense to me.

  57. maryo2 says:

    Did illegal wiretapping of Zacarias Moussaoui cause the Bush Administration to hesitate to request a FISA warrant for his arrest in August 2001?

    from http://www.startribune.com/sto…..23144.html

    Published Sep 25, 2002 MOUS25

    WASHINGTON, D.C. — Two weeks before the Sept. 11 attacks, a Minneapolis supervisory FBI agent told bureau headquarters that he wanted to make sure that Zacarias Moussaoui “did not take control of a plane and fly it into the World Trade Center,” congressional investigators said today.

    The agent, apparently the same figure scheduled to testify this afternoon before a joint House-Senate intelligence committee, then told the panel investigators that he had no reason to believe Moussaoui was planning such an attack, but was merely trying to get the attention of FBI headquarters, their report said.

    But the unnamed Minneapolis agent said that the headquarters official replied, “That’s not going to happen. We don’t know he’s a terrorist. You don’t have enough to show he’s a terrorist. You have a guy interested in this type of aircraft — that is it.”

    In the report on their inquiry into the FBI’s handling of its investigation of Moussaoui, the committee staff said that the headquarters official “does not remember this exchange.”

    The staff report laid out in detail the steps that Minneapolis agents took after Moussaoui was detained on Aug. 16, 2001, after he aroused suspicions at a Twin Cities flight school where he was trying to learn how to fly a 747 jet without having a pilot’s license.

    The report said that even while preparing for Moussaoui’s deportation to his home country of France on immigration violations, the agents continued discussing with FBI headquarters whether there was enough evidence to justify a national security warrant authorizing a search of Moussaoui’s possessions.

    Moussaoui had traveled to Chechnya to join members of Osama bin Laden’s Al-Qaida terrorist group in fighting the Russians, and the discussion focused on whether the Chechen rebels qualified as a “recognized” foreign power on the State Department’s list of terror groups, the report said.

    For officials to obtain such a warrant, the subject of such an investigation must be linked to a hostile foreign power or terrorist group.

    But the report said the dialogue was “based on a misunderstanding” of the Federal Intelligence Surveillance Act (FISA).

    The FBI’s deputy general counsel told the joint congressional investigative staff that, in fact, the FBI can obtain a search warrant under the FISA law for any international terrorist group, including the Chechen rebels.

    The report said “because of the misunderstanding Minneapolis (agents) spent the better part of three weeks trying to connect the Chechen group to Al-Qaida,” including stepping outside bureau protocol and directly contacting the CIA’s counterterrorism center. FBI headquarters never agreed to pursue a FISA warrant before Sept. 11, insisting that there was insufficient evidence.

    After the Sept. 11 attacks, a search warrant was sought and granted, and Moussaoui has been charged with conspiracy in the attacks.

  58. maryo2 says:

    Bear with me here — we know that Cheney eliminates agencies that interfere with his dictitorial style. We know that Cheney was setting up his own computer system and micromanaging all security policies.

    My questions are –
    1. Did the July 10, 2001 email from the Phoenix FBI office to FBI Headquarters go through Cheney’s office via the FBI’s Automated Case
    Support (ACS) system?
    2. Was the ISD which was responsible for automation requirements eliminated to hide this fact?
    3. Is it coincidence that the ISD was on its last legs in July 2001 and eliminated in early 2002?

    http://www.fas.org/irp/agency/…../chap3.pdf

    Broader strategic analysis was performed by Intelligence Research Specialists(IRSs) who at time worked in the FBI’s Inyestigative Services Division (ISD), a separate division from the Counterterrorism Division.

    When asked why he did not recommend including any IRSs on the
    attention line [of the email], [the Intelligence Operations Specialist] told the OIG that the Investigative Services Division was “on its last legs” at the time and that there were very few IRSs in the ISD still working on analysis.

    ISD was created in November 1999 and housed the FBI’s analytical resources, such as the IRSs who handled counterintelligence matters, organized crime and white collar crime matters, and domestic and international terrorism matters. In addition, ISD included an Intelligence and Operations Support Section that was responsible for administering the field’s analytical program and training and automation requirements. ISD was eliminated in the beginning of 2002.

  59. maryo2 says:

    4. Was the Investigative Service Division of the FBI wiretapped or hacked by telecommunications companies?

    Rove would like to know what white collar crimes were being investigated for political hatchet jobs, and Cheney would like to control all domestic and international terrorist information before real intelligence analysts see it. So did they infiltrate the FBI’s computer system?

  60. JohnLopresti says:

    There is a html copy of the November 13, 2001 declassified copy of the secret Reagan ‘finding’ directing the Agency to conduct the contra war dated December 1, 1981 there. Early prototype for the secret law paradigm. It is exceptional, perhaps, that the object of the sentence appears to be compound, rather than simply stating the name of one country, the redaction blanking sufficient space for maybe ten other countries or some other words. This is far from addressing the instaDeClassify construct, but approaches the secret law issue. However, it also is interesting that the document includes a due process instruction to inform the G4 or whatever the equivalent of that subset of intell committees was 26 years ago.