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.

Woohoo!

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.

MadDog linked to this while I was away at the dentist, but since I’m a big fan of both Secrecy News and of Bill Leonard, I wanted to highlight it in a post of its own.

Bill Leonard, who until Cheney chased him away last December, was the person overseeing the Information Security Oversight Office (making him one of the top people in the government overseeing the use of classification and declassification). He confirms what we’ve been saying: the classification surrounding the Torture Memo was improper.

“The disappointment I feel with respect to the abuse of the classification system in this instance is profound,” said Mr. Leonard, who recently retired as director of the Information Security Oversight Office, which reports to the President on classification and declassification policy.

“The document in question (pdf) is purely a legal analysis,” he said, and it contains “nothing which would justify classification.”

Beyond that crucial fact, the binding technical requirements of classification were ignored.

Thus, he explained: There were no portion markings, identifying which paragraphs were classified at what level. The original classifier was not identified on the cover page by name or position. The duration of classification was not given. A concise basis for classification was not specified. Yet all of these are explicitly required by the President’s executive order on classification.

“It is not even apparent that [John] Yoo [who authored the memo] had original classification authority,” Mr. Leonard said.

“All too often, government officials simply assert classification. To enjoy the legal safeguards of the classification system, you need to do more than that. Those basic, elemental steps were not followed in this instance.”

“Also, for the Department of Defense to declassify a Department of Justice document,” as in this case, “is highly irregular,” Mr. Leonard said.

(The DoD declassifier mistakenly cited “Executive Order 1958″ on the cover page of the declassified memorandum. The correct citation is “Executive Order 12958, as amended.”)

Violations of classification policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded. Nevertheless, such classification violations are significant because they enabled the Administration to pursue its interrogation policies without independent scrutiny or accountability.

“To learn that such a document is classified has the same effect for me as waking up one morning and learning that after all these years there is a ’secret’ Article IV to the Constitution that the American people did not even know about,” said Mr. Leonard. [my emphasis]

As MadDog pointed out, these are some of the same issues we’ve been discussing in threads:

• The document should not have been classified "Secret"
• If it were to be classified "Secret," someone should have gone through and done a paragraph by paragraph analysis of what was "Secret"
• The memo lacked a number of other required items–original classifier, duration of classification, and rationale for classification
• DOJ was the owner of the document, but DOD declassified it
• Daniel Dell’Orto mis-cited the Executive Order by which he declassified the memo

I suspect we will learn there are reasons for all these irregularities of classification and declassification. Or rather, I expect the Administration will give us the same bullshit excuse every time someone points out that the whole damn executive branch is in violation of the executive branch’s own EO on classification and declassification. You see, according to the same OLC that wrote this bogus memo (and almost certainly, that means according to John Yoo), the Administration doesn’t have to abide by its own Executive Orders. (Though it should be noted, the Bush Administration revised the Executive Order in question within days of the publication of the Torture Memo, on March 23, which means it didn’t even comply with the brand new Executive Order written contemporaneously with the Memo!) So BushCo can do whatever it wants to do with classification and declassification, and then say, after the fact, "well, the President didn’t intend Bush Cheney John Yoo to have to follow the rules."

And voila! We’re in the recursive position where John Yoo (probably) wrote an opinion allowing George Bush to throw Pixie Dust on his own Executive Orders so that John Yoo’s shoddy legal opinions never see the light of day!

You like how that works?

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

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

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations. [my emphasis]

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

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

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

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

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

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

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

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

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

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

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

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

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

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

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

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

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

President Bush pressed this legislation not only to establish how our government can spy on foreign agents, but how his administration can spy on Americans. Make no mistake, the legislation we passed in August is significantly about spying on Americans – a business this administration should not be allowed to get into except under the closest supervision. We have a plain and tested device for keeping tabs on the government when it’s keeping tabs on Americans. It is our Constitution.

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

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

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

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

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

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.

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

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

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

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

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

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

Here’s number two.

The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

Yes, that’s right. The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.” Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.

The question “whether an action is a lawful exercise of the President’s authority under Article II,” is to be determined by the President’s minions, “exercising his constitutional authority under Article II.”

It really makes you wonder, who are these people? They have got to be smart people to get there. How can people who are so smart be so misguided?

And then, it gets worse. Remember point three.

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

Let that sink in a minute.

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

We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that “l’etat c’est moi” and “The King can do no wrong.” Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the “supreme leader.” Imagine a general counsel to a major U.S. corporation telling his board of directors, “in this company the counsel’s office is bound by the CEO’s legal determinations.” The board ought to throw that lawyer out – it’s malpractice, probably even unethical.

Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- “The United States Department of Justice.” Think of the heroes who have served there, and the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how that all makes you feel.

Then think about this statement:

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

If you don’t feel a difference from what you were feeling a moment ago, well, congratulations – there is probably a job for you in the Bush administration. Consider the sad irony that this theory was crafted in that very building, by the George W. Bush Office of Legal Counsel.

In a nutshell, these three Bush administration legal propositions boil down to this:

1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”
2. “I get to determine what my own powers are.”
3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories. I understand political loyalty, trust me, I do. But let us also be loyal to this great institution we serve in the legislative branch of our government. Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic. And let us be loyal to the American people who live each day under our Constitution’s principles and protections.

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