Posts

Whitehouse and Feingold Strike Back at Pixie Dust

/in /by

Pixie Dust, as I’ve explained it, is the process by which the Bush White House has relied upon an OLC opinion stating that the President doesn’t have to rewrite his Executive Orders before he violates it. If he acts contrary to an Executive Order, that constitutes "modifying" the order, even if he never publicly changes the order. Hell, apparently in this White House, the VP could make up his own interpretations of Executive Orders, even if the White House Counsel told him he was wrong.

Uh huh.

Sheldon Whitehouse and Russ Feingold think that whole concept is as ridiculous as we think it is–and they’ve just sponsored a bill to end the practice.

U.S. Senators Russ Feingold (D-WI) and Sheldon Whitehouse (D-RI) have introduced legislation to prohibit the President from relying on one form of “secret law.” The Feingold-Whitehouse bill would require public notice when the President modifies, revokes, waives, or suspends a published executive order or similar Presidential directive that carries the force of law and binds the Executive Branch. The legislation responds to a legal opinion of the Department of Justice’s Office of Legal Counsel which concludes that a President can modify or waive an executive order without public notice, simply by not following it. This legal conclusion by OLC was made public in December 2007 through the efforts of Whitehouse and examined at an April 30th hearing of the Senate Judiciary Committee Constitution Subcommittee on the subject of “Secret Law” chaired by Feingold.

“No one disputes a President’s ability to withdraw or revise an Executive Order,” Feingold said. “But modifying or even throwing out a published Executive Order without any public notice is a way of secretly changing the law. And since the Executive Order stays on the books, Congress and the public are misled about what the real law is. This bill is an important step toward stemming the growth of secret law in the executive branch.”

“The Bush Administration’s relentless efforts to conduct government in secret have undermined the rule of law and too often betrayed the trust of the American people,” said Whitehouse, a former Rhode Island U.S. Attorney and Attorney General who first made OLC’s conclusion public. “This measure will help restore the rule of law, disciplined by the balance of power established under the Constitution.”

The bill, called the Executive Order Integrity Act, would require notice to be published in the Federal Register 30 days after the Read more →

No Consequences for the Wholesale Politicization of Justice

/in /by

Glenn Fine, DOJ’s Inspector General, showed up before the Senate Judiciary Committee today to talk about the two reports showing pervasive politicization of the Department of Justice.

The big take-away from the hearing–which reinforced what was already evident from the reports–is that those who politicized DOJ have basically gotten away with it: Monica Goodling, Kyle Sampson, Mike Elston, and others will not be held accountable for their actions.

For example, when Chuck Schumer asks Fine about consequences, Fine says the lawyers involved (and not all of them were lawyers) may–possibly–face sanctions from their Bar.

Schumer: On of the most shocking conclusions in your report is that someone like Monica Goodling, who politicized the appointment of Assistant US Attorneys, Immigration Judges, and even Counter-Terrorism positions may not face any consequences for her actions. So let me ask you this, Mr. Fine. Should such blatant politicization and illegal activity be subject to some criminal punishment so there would be some ultimate accountability.

Fine: I’m not sure it’s true to say she escaped any accountability and punishment. As I discussed with Senator Whitehouse earlier, she–people did leave the Department, so they can’t be disciplined by the Department, but we’ve recommended that they never get a job with the Department again and hopefully with the federal government again and that hopefully they consider this report if they ever do reapply. They have been exposed. Their conduct has been exposed in a transparent way for all to see. And then, there may be–I’m not saying there is but there may be appropriate Bar sanctions for–possibly–for attorneys who have committed misconduct and may have violated a Bar rule and so the Bar may look into that.

Sheldon Whitehouse follows up on Schumer’s questions to ask for specifics, looking for some means to hold these guys accountable. Whitehouse seems to be pointing to something bmaz has talked about (update: see this comment)–the difficulty in identifying the Bar rule that such misconduct might have violated.

Whitehouse: Um, with respect to the consequences for the violation of federal law. Can you identify what Bar rules might have been broken. … I did not see OPR making any referrals to the Disciplinary Council as a result, so I’m a little confused about what disciplinary consequences lawyers might face?

Fine: My understanding is, and I’ve had discussions with OPR about this, that OPR intends to, and we will participate in a notification to the Bars of individuals who are found to have committed misconduct, for them to review the conduct. Read more →

Mukasey Flip Flops on Pixie Dust

/in , /by

Back during Michael Mukasey’s confirmation hearings, Sheldon Whitehouse got Michael Mukasey to commit that, when a President changes an executive order, he appropriately should actually change the executive order–so schmoes like you and I can know what the President is actually doing.

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.

A few months later, we learned why Whitehouse had asked Mukasey the question–because Bush was claiming that he didn’t need to change his own executive orders, specifically EO 12333–which Americans would have believed protected them against wiretapping when they were overseas.

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." Read more →

FISA Liveblog: Kit “I think red ties look great with pink shirts” Bond

/in /by

CSPAN’s stream is being a bit cranky, but I’ve got Kit Bond on the old style teevee, and boy I’m not a fashion maven, but I wouldn’t wear a red tie with a pink shirt.

Boy, Kit Bond must be really tired of having to manage a debate against the very much smarter Russ Feingold. He just tried to refute Feingold’s point that 70 people shouldn’t vote for immunity when they don’t know what they’re voting immunity for. He said, "that’s okay, that’s why SSCI is there." Ah, but Mr. Red Tie, if SSCI can’t award immunity on their own (as if Congress can, but nevermind), then I guess it’s not enough, huh?

Bond just said Judge Walker’s opinion doesn’t stand up.

Shorter Kit "Mr. Red Tie": I realize a judge has said Cheney’s whole notion of inherent authority is bunk. But I disagree. And while I’m happy to let Article II boss me around, I’ll be damned if I let Article III boss me around.

Kit Bond: IGs will not determine whether the illegal program was legal or not.

House and Senate Intelligence Committees are all the oversight you need, little boys and girls. Never mind the Courts!

Specter: A member’s constitutional duty cannot be delegated to another member. The full body has to act. The question for the Senator with the red tie is, how can 70 members of the US Senate expect to grant retroactive immunity in light of the clear cut rule that we cannot delegate our Constitutional responsibilities.

[Is this the day Haggis returns to US law?!?!?!?!]

Bond: well, SSCI predates me.

Specter: Uh, yeah, I know. I used to chair it, remember?

Specter: SSCI hasn’t even all been briefed on the stuff they’re supposed to be briefed on. Judge Walker with his 56 page opinion that bears on the telephone case. Have the telecoms had problems with their reputation? Perhaps. They can recover from that.

Specter: Does the Senator from Missora know of any case involving constitutional rights where Congress has stepped in and taken it away from the Courts where there’s no other way of getting a judgment on the constitutionality of it?

Mr. Red Tie: What Specter fails to understand, it’s not a question of carriers being held liable, what they would do is disclose the most secretive methods used by our intelligence community. Read more →

Whitehouse: Bush’s Lies “Rot the Very Fiber of Democracy”

/57 Comments/in /by

Updated with YouTube from Selise. 

If you’re reading the SSCI Phase II reports, go to this thread to discuss what you’re finding.

But if you want to know what Senator Whitehouse thinks about it, you can see his speech here.

Or you can read it below:

Mr. President, five years ago, President Bush and this administration misled this country into a war that should never have been waged, a war that has cost our nation the lives of more than four thousand courageous men and women, squandered many hundreds of billions of our tax dollars, and diminished the world’s faith in our country.

This morning, the Senate Intelligence Committee, led by our distinguished chairman, Senator Jay Rockefeller of West Virginia, released a report confirming what many have long feared: that the Bush Administration ignored or swept aside substantial, reliable intelligence that portrayed something other than what the President and his political allies wanted America to see.

Mr. President, the decision to take a nation to war, as Chairman Rockefeller indicated, is among the gravest and most momentous that a leader can make. In our democracy, we expect and deserve to be sure that when our troops are sent in harm’s way, when their families are made to watch and wait through sleepless nights, when our security and national welfare is put on the line, that that decision has been taken for the right reasons. This is a sacred compact, an article of faith, between our people and their government.

This Administration broke that compact, betrayed that faith.

For years, the evidence has mounted that this Administration’s reasons for war were a sham. And just this week, the President’s own former spokesman indicated that the White House ran a "political propaganda campaign" building the case for war.

This morning’s report is a chilling reminder of the Bush Administration’s willingness to overlook or set aside intelligence that did not conform to its pre-ordained view of the world. Over and over again, the Committee documented instances in which public statements by the President, the Vice President, and members of the Administration’s national security team were at odds with available intelligence information.

By leading the American people to believe that the situation in Iraq was significantly more drastic than it actually was, the Bush Administration took this country into an unnecessary war – a war it still refuses to end.

Read more →

The Yoo “Exclusivity” Opinion: More Outrageous Hackery

/59 Comments/in , , /by

After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

As it happens, DOJ actually appears to be somewhat cognizant of the legal hackery of this Yoo opinion. When he learned DNI had declassified the passage from the opinion, Brian Benczkowski sent a letter to Senators Whitehouse and DiFi, trying to claim that Yoo’s opinion is unremarkable:

The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.

Read more →

I Don’t Think “Exclusivity” Means What John Yoo Thinks It Does

/54 Comments/in , /by

I wanted to focus some attention on one tiny part of the interchange I highlighted yesterday. In the guise of explaining to Administraton apologist David Rivkin the Kafkaesque process by which he has gotten some of the Office of Legal Counsel’s opinions declassified, Sheldon Whitehouse revealed he has been trying to get one more opinion declassified–one relating to exclusivity:

I’d be delighted to show you the whole rest of the opinion [stating that the President tells DOJ how to interpret law] 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 secure 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.

Exclusivity, you’ll recall, refers to the language in the original FISA bill that requires that FISA be the only means under which the executive branch conducts domestic surveillance. Here’s Anonymous Liberal on exclusivity:

Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)–commonly known as the exclusivity provision–which states that the "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

It is through this provision that Congress made it clear that FISA’s warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework.

Now, as AL points out, the Protect America Act introduced a loophole by which the Administration could get around the exclusivity provision, one DiFi has been trying to ensure stays closed in the amended FISA, and which the Administration hopes to keep open. Read more →

Publicizing Pixie Dust

/53 Comments/in , /by

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.

Read more →

Does McCain Support the Poisoning of MI’s Voters?

/15 Comments/in , /by

A number of people (including Senator Whitehouse) have pointed out how much the Mary Gade firing resembles the US Attorney firing. As the Chicago Tribune reported (before the Administration released the standard "spending time with her family" statement), Gade was told to resign because she expected Dow Chemical to clean up its pollution in the Saginaw-Midland MI area.

On Thursday, following months of internal bickering over Mary Gade’s interactions with Dow, the administration forced her to quit as head of the U.S. Environmental Protection Agency’s Midwest office, based in Chicago.

Gade told the Tribune she resigned after two aides to national EPA administrator Stephen Johnson took away her powers as regional administrator and told her to quit or be fired by June 1.

[snip]

Gade, appointed by President Bush as regional EPA administrator in September 2006, invoked emergency powers last summer to order the company to remove three hotspots of dioxin near its Midland headquarters.

She demanded more dredging in November, when it was revealed that dioxin levels along a park in Saginaw were 1.6 million parts per trillion, the highest amount ever found in the U.S.

Dow then sought to cut a deal on a more comprehensive cleanup. But Gade ended the negotiations in January, saying Dow was refusing to take action necessary to protect public health and wildlife. Dow responded by appealing to officials in Washington, according to heavily redacted letters the Tribune obtained under the Freedom of Information Act.

[snip]

On Thursday, Gade said of her resignation: "There’s no question this is about Dow. I stand behind what I did and what my staff did. I’m proud of what we did."

What I haven’t heard mentioned in any of this coverage, though, is whether John McCain supports the firing of Mary Gade.

It’s relevant, I figure, for two reasons. First, with his half-measures global warming initiative, McCain likes to fancy himself a bit of an environmentalist. More importantly, McCain is banking heavily on winning MI in November. There is no way that McCain becomes President without winning MI.

So don’t you think it a relevant question–whether McCain supports the firing of Mary Gade because she tried to end the poisoning of a bunch of MI voters on whose votes McCain is counting?

Read more →

A Failure of Legal Scholarship

/28 Comments/in , /by

The smart legal types in the blogosphere have weighed in on whether or not OPR’s investigation of two OLC opinions (the rationale for warrantless wiretapping and the rationale for torture) can accomplish anything. Marty Lederman writes,

I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.

[snip]

Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC’s advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.

In an op-ed in the National Law Journal, Sheldon Whitehouse (who pushed OPR to conduct the torture-related of these two investigations) elucidates what he thinks the OPR is likely to to find.

This substantial body of precedent [finding waterboarding illegal] has been documented by Evan Wallach in the Columbia Journal of Trans- national Law. Most notably, Wallach details incidents of waterboarding prosecuted by DOJ itself: the 1983 federal prosecution of a Texas county sheriff who waterboarded prisoners. The indictment asserted that the defendants conspired to "subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions." The sheriff and his deputies were all convicted. The 5th U.S. Court of Appeals affirmed. U.S. v. Lee, 744 F.2d 1124 (1983). At sentencing, U.S. District Judge James DeAnda admonished the former sheriff, "The operation down there would embarrass the dictator of a country."

How is it that the OLC, the elite legal conscience of DOJ, completely missed a U.S. Court of Appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department? Is this a failure of legal analysis, or something much, much worse?

Read more →