Publicizing Pixie Dust

Updated with Selise’s YouTube. Thanks Selise!

As a number of you pointed out in comments discussing Russ Feingold’s secret law hearing that took place while I was on my trip, NYT believes that Pixie Dust–the process by which the President can "modify" his own executive orders by simply ignoring them–has never before been publicized.

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation. [my emphasis]

By "unpublicized," I guess they mean "never before scarred a dead tree," because Sheldon Whitehouse gave a great speech about it, I wrote a whole series of posts about it, and Selise’s YouTube of Whitehouse’s speech got a whole bunch of views.

Which, I guess, is a great way to introduce the news I just got today: my Guardian column on Pixie Dust is a finalist for Project Censored from last year–one of the twenty-five most important but under-covered stories from last year.


Which makes the following exchange all the more ironic. When I reviewed the Senate webcast from the hearing, I couldn’t help but appreciate the drama of Sheldon Whitehouse discussing the shoddy bases on which Bush’s three assertions of Presidential super-legality depend. As designated Adminsitrative Unitary Executive David Rivkin apologist tried to defend these opinions, he complained that he couldn’t see the whole opinion.

Uh huh. Now you’re getting it!

Here’s Whitehouse, describing the precedents on which these opinions rely (my transcript, all mistakes my own).

Then you see something like this [points to the Executive Order opinion]; I won’t go through it it’s been in the testimony already. That’s a pretty alarming proposition, that an executive order is just ignorable willy-nilly with no reporting. And when it became apparent that I was going to release this and I had it declassified, I was told it stands on precedent, and when they told me what the precedent was, the precedent was a Griffin Bell opinion that said the President can legally revoke or supersede an executive order at will.

Of course the President can legally revoke or supersede an executive order at will! There’s a process for doing that. That’s a completely different proposition than saying that the executive can use the executive orders of this country as a screen behind which they can operate programs directly contrary to the text of the executive order.

So there’s one example. The other one that I declassified was the proposition that the President has … exercising its constitutional authority under Article II can determine whether an action is a lawful exercise of the President’s authority under Article II. I mean, aside from the pulling yourself up by your own bootstraps nature of that argument it stands on an earlier opinion that says the executive branch has an independent constitutional obligation to interpret and apply the Constitution. Well, of course they do in the exercise of their duties. But among the things that that opinion goes on to say is that it requires deference to legislative judgments. Once you hang it off Article II, which the executive under this Unitary Executive theory claims is immune from either legislative or judicial intrusion, you’re now saying a very different thing. When you actually see the opinion and see how the extra steps have been taken, you know, you know it’s a little bit, something else is going on other than just plain legal interpretation.

The last one, this is my justice bound, the Department of Justice is bound by the President’s legal interpretations. I thought we’d cleared that when President Nixon told an interviewer than if the President does it, it’s not illegal. That stands on the proposition that the President has the constitutional authority to supervise and control the activities of subordinate officials within the executive branch. But the idea that the Attorney General of the United States and the Department of Justice don’t tell the President what the law is and count on it, but that rather it goes the other way opens up worlds for enormous mischief.

It’s a sweeping proposition, and the three of them as precedent open enormous avenues for further mischief if you’re going to climb out and out and out further on your own precedent.

Rivkin states that he sees no cost to making these propositions public, and–attempting to recuperate them–complains that he has only one sentence to use to assess the opinions. To which, of course, Whitehouse responds that he’d love to give Rivkin the full opinions (thus proving the central point of the entire hearing).

I’d be delighted to show you the whole rest of the opinion but I’m not allowed to. It’s classified. I had to fight to get these declassified. They made me take … they kept my notes. They then delivered them to the intelligence committee where I could only read them in the secure confines of the intelligence committee and then I had to, again, in a classified fashion, send this language back to be declassified. I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

John Elwood, the OLC lackey, pipes in at this point, to try to salvage the opinion on executive orders.

You should also have been provided an opinion that has been public for twenty years and was put out by the office and provided to Congress in 1987 which reads as follows: EO 12333, like all executive orders, is a set of instructions from the President to his subordinates in the executive branch. The activities authorized by the President cannot violate an executive order in any legally meaningful sense because this authorization creates a valid modification of or exception to the executive order. So this is not secret law, this is as public as it can get.

Whitehouse, once again using the Republican shills to make his point, responds,

There’s an important piece missing from that.

Which is, not telling anybody.

And running a program that is completely different from the executive order without ever needing to go back and clean it up.

But that’s okay. Elwood makes it all right!

This opinion involved a secret modification. It involved Iran-Contra.

Oh, okay. That worked out so well. That was such a constitutionally sound action. And twenty years later, as the Administration continues to skulk around meeting with the same joker that robbed them blind during Iran-Contra, I can totally see the value of keeping that game secret. Not.

Hopefully, with the NYT and Project Censored picking up on Pixie Dust, it won’t remain such a mysterious concept anymore. Secret law, I’m hoping, won’t be so powerful a tool anymore if it is no longer secret.

53 replies
  1. Rayne says:

    Woohoo is right!! Might have to interview you just for that.

    (BTW — If you happen to be in Lansing tomorrow, I’ve got a “scholarship” for you at the Summit.)

      • Rayne says:

        Any time — I’ll have to send Julielyn an email telling her you’re on my tab.

        I’m leaving at 7am to be there about 9am. See you there!

  2. klynn says:

    …news I just got today: my Guardian column on Pixie Dust is a finalist for Project Censored from last year–one of the twenty-five most important but under-covered stories from last year.

    How cool is THAT? Way to go EW…Very, very
    much deserved!!!!!

    Thanks for sharing your news with us.

    Got to send Sheldon that post where we defined pixie dust!

  3. JimWhite says:

    Congratulations. Can you submit the Times article as further proof of how important and under-publicized your column is?

    • bobschacht says:

      “Can you submit the Times article as further proof of how important and under-publicized your column is?”

      We can help. All you have to do is to use the “Spotlight” feature at the end of EW’s post and you can send it to 10 reporters (you can choose from a list of about 100, including all the major MSM papers and weeklies), and you can even add your own pithy comment. I think its better than a Digg!

      Bob in HI

  4. readerOfTeaLeaves says:

    Here’s hoping this tick-tick-tick tock will mysteriously engender a host of crocs following Bush, Cheney, and the rest of their loons around the swamps they sneer in.

      • MadDog says:

        Doggone it! I was hoping I’d have a dog in that fight.

        It’s always “the water dish is bone dry and the Kibbles are gettin’ old too!”

  5. klynn says:

    You know, my comment to MadDog about the “best blog on the Web” went up before this post did.

    Wrote it without any influence. Genuine assessment. And this in the post before that…and hope you caught this earlier:

    Was reading your book at the library the other day. Had someone come up to me who is a “lurker” and asked if I visit here. Said yes. We spent a great deal of time talking about the depth of your research. We both agreed we also greatly appreciated the comments and expertise offered by many and that the teamwork in the blogesphere is amazing — especially during document dumps. Hope the lurker, de-lurks some day. BTW, we were both quite appreciative of a number of regular commentors and both agreed bmaz does a great job watching the shop. Commentors, just a heads up, lurkers really appreciate your efforts and questions too. The symbiotic relationship between “poster and comments” is profound…the new journalism…

      • klynn says:

        What I didn’t add from my conversation with the lurker…Your incredible efforts to dig deeper and connect every fact into the bigger context is a gift beyond words…It is “that gift” that you give your readers, the truth to power, that pushes the commentors to dig and team with you. Your best brings out the best. Iron sharpens iron.

        Patriotism refined.

  6. phred says:

    WooHoo is right! Glad to see the Guardian has such a fine eye for talent : ) Well, done!

  7. earlofhuntingdon says:

    Excellent revised take on an old story that the MSM has covered the first time yet.

    We can see in these arguments by Elwood, and in the “opinions” he’s attempting to defend, indications of the same knowingly deceptive legal arguments John Yoo used in his torture memos. Self-referential opinions, that is, citing your own prior opinion as “authority” for the current opinion; citing extreme or corrupt examples, eg, an Iran-Contra opinion; citing valid precedent as authority for the opposite of what that precedent holds.

    When these “opinions” are kept secret, no EW or other critic can dissect them, no court can hold them invalid, no legislature can cure excess behavior through correcting legislation or funding prohibitions. While they remain secret, in existence and unchallenged, they protect extreme, even illegal behavior.

    Something else. This “formula” is perfectly suited to Bush’s limited abilities and Cheney’s manipulation of them, and perfectly suited to protecting those acting at their command.

    Within the realm of action protected by Executive Orders, it excuses ignorance or disregard of those EO’s so long as the President, presumably on Cheney’s urging, later excuses that behavior. He can do that solely by verbal proclamation, regardless of whether you can see Mr. Cheney’s lips move or not. Under this formula, nothing need be written down; even the verbal OK is secret.

    It’s analogous to Rove’s insistence that when he answers testimony there be no oath and nothing in writing. It’s all about not getting caught or caught out. That’s not a system of laws, it’s a system of excuses, a system of lawless behavior made illegally immune at the whim of the President.

    It doesn’t excuse all possible behavior, only a section on the wheel of all possible behavior. But then it’s only one of many tools used by CheneyAddington to make their virtual presidency immune from oversight and legal liability. All it takes is for the nominal President to bob his head and flash his eyes whenever the car brakes are applied. And for Congress and the MSM to ignore it all.

    • earlofhuntingdon says:

      First line should read that the “MSM hasn’t covered the first time yet.”

  8. prostratedragon says:

    But that’s okay. Elwood makes it all right!

    “This opinion involved a secret modification. It involved Iran-Contra.”

    Is that a great moment, or what! Downright teachable.

    Congratulations on making the cut, EW. If they want to pick winners whose neglect was as emblematic as the stories themselves, yours’ll definitely be there.

  9. strider7 says:

    “Pixie Dust”
    You should get a patent on it!
    Maybe write a song about it!
    The ultimate elixer.Cures all your ills.
    msm uses it on everything they print.
    I think Bushco brushes their teeth with it.
    I sprinkled some in my dog’s food and he coulnd’t remember who I was.
    This could be epic EW.Your going to need marketing people.
    You’ll go down in history!! the inventor of Pixie Dust!!

  10. watercarrier4diogenes says:

    Quietly sneaky OT as there’s no football trash talk thread to put this in.

    Go to the Countdown/Keith Olbermann webpage and click on the little picture of Tom Brady with WonderWoman in the background. All three bits are funny, but the ‘unconfirmed rumor’ at the end of #1 is well worth the effort to get to hear it.

    Then, to return to reality, watch KO’s interview of Pat Tillman’s mother. A far better ‘Mother’s Day’ piece than you’ll hear on Bill-O’s crapfest.

  11. ThingsComeUndone says:

    Ok if a Executive order is secret and the legal opinion is secret and the President can change Executive orders at will without ever having to tell anyone then we are being ruled by a king.
    After all you can’t obey the law if no one will tell you what the law is the rule os law is dead!
    Please correct me if I’m wrong in my understanding I want to be wrong.

    • strider7 says:

      The EOs already have pixie dust sprinkled on them but all the rest of the laws don’t so,since all of the pixie dust has been outsoursed to China you better get your ass down to Wal Mart and hope there’s some left because Marcy is being sued by Monsanto for proprietory violations.You see,Monsanto has a patent on the gene and never told anybody because the laws are secret.I know…they had an industrial accident and a batch contaminated everybody and they forgot they even got the patent,which is another good reason Marcy should get down to the patent office and get a patent on the stuff.

        • strider7 says:

          Originaly, Marcy discovered it and someone in the cia stole it,Rummy had something to do with it if I remember right,and got Monsanto to do the research on it and found the gene and modified it and then patented it.But they found out it caused cancer in rats and tried to hide it.But they put it on the market anyway.Nobody ever checks that stuff anyway.That’s the GM stuff though,it’s bad shit man.Doesn’t work at all.Marcys’ does though.Thats really why she went to Scotland.The cia was watching her.

  12. joejoejoe says:

    Congrats E-Dub! Forget Catapult the Propaganda. Trebuchet the Truth right in their damn eye!

  13. selise says:

    congrats marcy!

    it’s very good to see your work getting the recognition and this issue getting more attention.

  14. watercarrier4diogenes says:

    Kudos to ThingsComeUndone, strider7, and AZ Matt. If Cheney’s listening in (and you KNOW he is) he’s now got the mother of all migraines…

    And Super-KUDOS to Marcy!!

    • strider7 says:

      They say the streets of heaven are lined with gold but I think they are really lined with Pixie Dust.Geezus Keerist I hope that Bin Laden doesn’t get up there first!!

  15. squib says:

    I am a faithful “lurker” (I hate that image) on this site. I often wonder what is the ratio of lurkers vs contributors at emptywheel. I suspect Marcy may have more of a “public” than she realizes. There are probably other tired, working stiffs like myself that are usually too exhausted to lift a finger to the keyboard at the end of the day.

    Marcy, thank you for fighting the good fight every day, and congrats on getting the recognition you so deserve.

    In response to Bob in HI at #12: I tried to “spotlight” EW’s post to a bunch of correspondents/editors/producers over at NPR, but neither my comments nor Marcy’s post went through.

    After rousing myself out of my usual torpor to actually write to NPR (in an attempt to shame them into doing their job), I was very disappointed to have my little tantrum go to waste. I ended up emailing it to their ombudsman (gatekeeper) instead. My previous attempts to shame NPR into covering important news stories (such as the Yoo Torture Memos) have been met with deafening indifference. Sadly, NPR has become an upscale CNN or Fox, with better and more entertaining puff pieces.

    My email to NPR:

    Topic: Secret Executive Orders.

    The Office of Legal Counsel in the DOJ claims that the president can depart from previous executive orders without telling anyone. OLC claims that that there can be one set of rules that is public, while other “real’ rules are classified and not subject to oversight – and may in fact run exactly counter to the publicly stated executive orders. No one is disputing that it is the President’s prerogative to make Executive Orders; however claiming that the President has the right to go against his own EO without formally amending the EO is the equivalent of saying “l’Etat c’est moi!” Or to paraphrase Richard Nixon: “If the president does it, then it isn’t illegal”.

    Marcy Wheeler at Emptywheel blog has done yeoman’s work in covering this incredibly important story. U.S. Senator Sheldon Whitehouse (D-R.I.) challenged the legal theories propounded by the OLC to justify surveillance of American citizens in a Senate floor speech in December of 2007. Yet this story hasn’t gotten any major news coverage in the MSM. Not a “fluff piece” to be sure, but I think NPR listeners are sophisticated enough to understand (and be concerned about) the existence of a secret, parallel set of laws that have so far not been been subject to oversight by Congress or the courts. I am no lawyer, but even I “get it.” I just wish I didn’t have to rely entirely on the internet to get real news and legal analysis. I would love to hear NPR put a spotlight on this topic. Shedding light on a system of secret laws is precisely the antidote our ailing democracy needs, and it is the duty of NPR and other members of the free press to do so.

    G’night emptywheelers

    • BayStateLibrul says:

      Well written, informative letter…
      Thanks for running it up the flagpole…
      We have the rope of Bush and Cheney around our necks.

    • phred says:

      Welcome squib! Nice to meet you. That’s an excellent letter you wrote to NPR. I agree that their news coverage has been an enormous disappointment over the last few years. However, they still have a couple of reporters who are doing some good work. Daniel Zwerdling in particular is at the top of my list. He did a great expose a few years back on prison abuses here in the U.S. Perhaps if you can find his contact info, you can send it to him directly. Just a thought…

      Hope to see you pop in again sometime…

    • readerOfTeaLeaves says:

      You give me hope.
      I’ll contact my local NPR affiliate, b/c I totally agree with you on how NPR has diminished in quality (except for Warren Olney’s ‘To the Point’).

  16. freepatriot says:

    yo, ew

    so what, now you’re gonna be famous n stuff ???

    don’t forget the little people

    you get to step on them on the way down too, ya know …

    and about this “secret executive order” shit:

    why don’t they just jump the fucking shark and tell us that THEY COULD TELL US BUT THEN THEY WOULD HAVE TO KILL US

    everybody knows that its coming

    these buttlicks are so stupid they can’t recognize that they’re a parody of all the bad political jokes ever written

    we should take odds on which repuglitard is the first to try this lame new act

  17. JamesJoyce says:

    A United States Senator being treated by this administration as if he were a threat to the nation…….. Seems the actions of this administration are ??

    EW RULES………..

  18. dipper says:

    Congrats and WOO HOO to Marcy and to all the great commenters on this site. And thanks, Squib, for your attempt to rouse NPR. Maybe someday………

  19. klynn says:

    But that’s okay. Elwood makes it all right!

    This opinion involved a secret modification. It involved Iran-Contra.

    Boy, that caught my attention. Funny, the House of Death story has been linked to Iran-Contra, Columbia and beyond…Twenty years later my foot…Very interesting that this is addressed now.

    Boy I hope Sheldon does not stop. Interesting that Feingold is just catching on. Hmmm…I wonder what has gone down in his judiciary committee to have opened his eyes all of a sudden? And then a raid of OSC? Hmmm…

    Just thinking out loud…

    • emptywheel says:

      I think the hearing came out of the Yoo memo–it was such a perfect example of the abuse of classification. Not sure if you noted, but the first time Feingold introduced Whitehouse, he noted the great work that Whitehouse had done on the Pixie Dust issue.

      • klynn says:

        I missed that in Feingold’s introduction of Whitehouse…I’ll go back and listen! So, “unpublicized” was a bit of snark plus a bait to the MSM! And, it worked!

        Do you think this is due to the Yoo memo only? I still get a feeling that there is something out there that only a few (of the good guys) know and they know the “bad guys” don’t know that they know. This probably does not make sense. Sorry if my thinking out loud lacks specifics at this point. It’s hard to put a cogent connection to all the dots, (although, you are a master at that.)

        Sorry about the “good guys vs bad guys”. It just seems to simply have come down to that concept.

  20. klynn says:

    This hearing came out of the Subcommittee on the Constitution, Civil Rights and Property Rights… He’s on, what, four subcommittees within Justice?

    After full committee hearings on Oversight of U.S. Dept of Justice on 1/30/08 and then full committee regarding Oversight of FBI on March 5, 2008.

    I don’t know EW, there’s a “dot” somewhere in this that kicked Russ’ backside to have this hearing. Surely he knew about Whitehouse’s speech. But Whitehouse did not get any MSM coverage on that speech, am I right? Perhaps the word unpublicized was professional “snark” of sorts. A worm dangled for the MSM because they missed it the first time?

  21. readerOfTeaLeaves says:

    I still get a feeling that there is something out there that only a few (of the good guys) know and they know the “bad guys” don’t know that they know.

    Theoretically, anything is possible. Here’s hoping.

  22. posaune says:

    Hey squib @ 54,
    absolutely right – ew has no idea the number of lurkers.

    believe me, a whole slew of folks slaving away in really interesting places

  23. whitewidow says:

    Congrats, ew. That is excellent that you are getting some more recognition. I am a mostly lurker, but I will second the comments. ew has great insight and is the best there is at connecting the dots. I am continually amazed at your ability to keep all these threads in your mind and pull out the relevant.

    And the commenters are a very integral and important part of the blog. The collaboration is, I think, the thing that the toobz are best for. The Plame story, the US attorneys, pixie dust and all the maneuverings of OLC, eavesdropping, all of these stories have been investigated by legions of regular citizens, as well as journalists and blogger/journalists. The internet allows all of these brilliant minds, with their own strengths and areas of expertise, to easily compare notes and work out all of this stuff.

    It has continually amazed me how far behind much of the traditional media is behind the blogs on a lot of this stuff. Kagro X was so far out in front on the subpoena’s, unitary exec stuff etc. and of course ew has had many scoops. It’s disturbing to me how little some of the so-called experts actually understand, and how little they care.

    Nothing y’all don’t already know, but it is what keeps me a junkie for this site.

  24. 4jkb4ia says:

    I am proud of EW. This is yet more recognition that what goes on here is “real journalism”. The comments are more important to read than on any other blog I know of, especially those of the crack IT team.

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