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