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December 07, 2007

In Shocking Development, U.S. Senator Acts Like Non-Asshole

Sen. Sheldon Whitehouse (D-RI) delivered an important speech today full of horrifying information, if it's still possible to be horrified by the Bush administration. As a member of the Senate Intelligence Committee, Whitehouse has access to the Justice Department's secret legal determinations. And, in a shocking breach of congressional protocol, he's used that access. He then was able to get some of the determinations declassified, or at least the summaries he wrote down while reading them in a secure room. This is how he characterizes three of them:

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.

In other words, the president is the law. Exciting! At least if you are the kind of person who enjoys watching government agents crush your son's testicles!

Whitehouse concludes:

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.

There is, of course, little reason for Whitehouse to be optimistic this will happen. Still, it's a surprise to see even one senator demonstrating he cares about these issues, and explaining them in a way normal humans can understand. Hopefully the Senate's mental-destructo-rays will have obliterated his brain before too long and we won't have this kind of trouble anymore.

For more, see Marcy Wheeler's cogent commentary.

—Jonathan Schwarz

Posted at December 7, 2007 04:56 PM

Do you have any more context/documentation for that child's testicles reference? I read the linked article and it sounded too insane to be said in public even for a Bush administration official. Crushing a child's testicles? How did that particular example even come up? Not that I put it past the administration in theory and practice, but to boast about it publicly?


And #2 on that list is really the kicker.

Posted by: Alaya at December 7, 2007 05:36 PM

Angry enough NOW to make that phonecall? (Pelosi @1-202-225-0100 DEMAND IMPEACHMENT.)Only 13 more months to go, can YOU make it, can YOU take it.

Posted by: Mike Meyer at December 7, 2007 07:09 PM

As someone who voted for Senator Whitehouse, I'd like to take this opportunity to say "You're welcome."

I'm very proud of the dude.

Posted by: ethan at December 7, 2007 07:51 PM

Mike, Pelosi doesn't care what we want. She never will. She will never move to impeach because that is part of the power-sharing arrangement. I've called, but it doesn't matter. Read Arthur Silber on this for more details.

Posted by: StO at December 7, 2007 08:18 PM

Senator Whitehouse's interest in this matter is laudatory, but he is wrong on the first two points, and probably correct on the third.

In the first point, Whitehouse blames the President for inadequacies in a law passed by Congress and then complains that "unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing." That's exactly right. Here's what FDR said in 1942: "In the event Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act . . . The President has the power, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war."

In the second point, the Senator refers to Marbury that it is “emphatically the province and duty of the judicial department to say what the law is.” But an Executive Order is not law so the point is moot.

Thirdly, the senator is obviously correct that we can't expect the president's counsel to over-ride the DOJ, but he doesn't give an example.

Executive prerogative has a long history in the US. Thomas Jefferson used it to carry out the Louisiana Purchase. Abraham Lincoln and Franklin Roosevelt used executive orders in wartime. John Kennedy used one to establish the Peace Corps. There have been hundreds of them, and even accountability of the orders is poor.

Executive power under Article II has never been defined and can only be limited by Congressional action, so the Senator's current position is a much-needed step in this direction as regards surveillance. If Congress wants the President to do, or not to do, something it must "put it in writing". That's its function. Otherwise the President has largely unfettered freedom to do whatever he feels necessary.

Incidentally, the US is currently in a "national emergency" and has been for over six years, by executive order.

Posted by: Don Bacon at December 7, 2007 08:19 PM

Incidentally, the US is currently in a "national emergency" and has been for over six years, by executive order.

the Bush administration makes Musharraf (and most contemporary dictators) look like pikers in comparison.

Posted by: almostinfamous at December 7, 2007 11:34 PM

Incidentally, the US is currently in a "national emergency" and has been for over six years, by executive order.

So is (was?) Florida (state emergency) under Jeb after one of those hurricanes at the beginning of his term.

Posted by: scudbucket at December 8, 2007 12:45 PM

It was frustrating to be a lefty liberal U.S. citizen in Venezuela through the recent election. Hugo Chavez offered a referendum on new powers: executive authority to declare national emergencies without legislative approval and to remove habeus corpus rights during emergencies. He sought greater executive power over state and local governments and to give the military the explicitly external mission of opposing imperialism. All this would augment a guy who already had personal power over the courts, the elections board and the legislature. As a result, magazines around the world termed Chavez a "dictator."

Inevitably, arguments on these topics included a spell of a pro-Chavez Venezuelan pointing out that George Bush has all this power, so what's the big deal? At least Venezuela is getting to vote on it. I would ask why they thought it a good idea to imitate the worst aspects of the U.S. system, which usually took us back to the merits of the ideas.

I don't think that Bushies have any idea what damage they are doing to the fragile shared illusion we call democracy. People like Cheney and Chavez are united in their willful assault on this illusion, their goal to impose their own ideas on the world whether people like them or not.

The difference is that Cheney is smart enough to lock up these decisions behind a wall of secrecy, knowing that the public would find them intolerable. Poor Hugo believed his own hype and thought the public would vote for such stuff. He thought wrong.

Posted by: heddy zhog at December 8, 2007 06:18 PM

StO: The idea is to FORCE CONGRESS TO IMPEACH. Like POP use to say, if it don't fit FORCE IT. Get a BIGGER HAMMER. I read the news ONCE and found out Nancy took IMPEACHMENT OFF THE TABLE. The IMPORTANT QUESTION IS "Did YOU take IMPEACHMENT OFF YOUR TABLE?" Nancy just works for US and I'm not sure I even care for her opinion one whit. How about YOU, YOU care about Nancy's feelings one way or another, really care?

Posted by: Mike Meyer at December 8, 2007 07:41 PM

The brilliant jurisprudential mind of Sheldon Whitehouse is surpassed only by the stunning legal brain of George W Bush. The immensely talented Mr Bush, who is said (by confidential and **very** trustworthy sources) to be the true legal mastermind behind the various legal analyses and arguments advanced by David Addington and John Yoo, is rumored to be the architect of a complex new, statist/corporate socialist government and its organic documents. Apparently the unveiling of those notions' products is scheduled for some time in early November 2008

Confidential sources report that while Mr Bush was said to have been constantly AWOL during his Air National Guard tenure, the truth was that he was attending law school at Yale, flying back and forth in the ANG's jets. These confidential sources have said they are willing to provide documentary proof of Mr Bush's graduation from the Yale Law School and, moreover, the truth of his having been the ghost-Editor-in-Chief of the Yale Law Journal.

Mr Bush, who hides his immense intellect behind a stammering rural Texas diction that reminds some of the character Deputy Enos Strate on the original Dukes of Hazzard TV show, is reputed to be one of the finest jurisprudential minds in all of human history.

I don't know what is a worse bit of comedy. The above, or the idea that some people think like Sheldon Whitehorse.

Posted by: The Wendigo at December 8, 2007 08:56 PM

to Mike Meyer --

Mike, you're engaged in a fantasy. If you're sincere -- which you appear to be -- then at least your heart is in the right place.

The truth of the matter is that NOBODY in the US Congress is interested in impeachment. The nearest effort we have is the bill for Cheney's impeachment, which was introduced by Dennis Kucinich, but he hasn't done diddly squat to advance it. That says to me that Kucinich isn't interested in impeachment, despite his overt gestures to the contrary. Mike Gravel has offered to tell Kucinich how to force votes and positions on his Cheney impeachment bill, but Kucinich continues to rest on the "accomplishment" of the mere act of introducing the bill.

Kucinich has a staff of assistants. He therefore has a lot of time and attention, and the US Taxpayers' money, to get that impeachment bill out of the mire and through a vote.

But he does nothing.

Nobody will respond to a call, a letter, an email, or even a personal visit, Mike.

They just do not care. They DO NOT care.

All they are concerned with is their own power and "prestige" -- and they will lie with impunity to protect it.

Posted by: The Wendigo at December 8, 2007 09:14 PM

The Wendigo: BUT DO YOU CARE? That's why I promote that number. As far as what people in Congress care about is OBVIOUS, YOU'RE telling me nothing new. YOUR FEAR of calling is unfounded, YOU need NOT identify yourself and The Speakers People WILL NOT ASK.

Posted by: Mike Meyer at December 9, 2007 10:01 PM