8. Executive Orders Can Be Changed Secretly

Sources:

Senator Sheldon Whitehouse website, December 7, 2007
Title: “In FISA Speech, Whitehouse Sharply Criticizes Bush Administration’s Assertion of Executive Power”
Author: Senator Sheldon Whitehouse

The Guardian, December 26, 2007
Title: “The Rabbit Hole”
Author: Marcy Wheeler

Student Researchers: Dana Vaz and Bill Gibbons

Faculty Evaluator: Noel Byrne, PhD

On December 7, 2007, Senator Sheldon Whitehouse, as a member of the Senate Intelligence Committee, disclosed on the floor of the US Senate that he had declassified three legal documents of the Office of Legal Counsel (OLC) within the Department of Justice that state:

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.

Whitehouse discovered the OLC’s classified legal opinions while researching the Protect America Act legislation passed in August 2007, which Whitehouse warns will allow the administration to bypass Congress and the Courts in order to facilitate unchecked spying on Americans. He noted that for years under the Bush administration, the Office of Legal Council has been issuing highly classified secret legal opinions related to surveillance.

The senator warned of the danger of the poorly written Protect America Act legislation, which provides no statutory restrictions on government wiretapping of Americans and eliminates checks and balances from the legislative and judicial branches. The only restriction on government eavesdropping on Americans is an executive order that limits surveillance to those who the attorney general determines to be agents of a foreign power. However, in light of the first declassified OLC proclamation that the president can secretly change his signing statements at will, we are left exposed to the whims of a secret, unchecked executive agenda.

Of the second OLC legal determination, Whitehouse reminded Senate that Marbury v. Madison, written by Chief Justice John Marshall in 1803, established the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.” Yet the OLC, operating out of the judicial department, has declared that it is now the president who decides the legal limits of his own power.

Lastly, Whitehouse repeated the third of these legal declarations several times as if in disbelief, asking members of Senate to allow the assertion to sink in: “The Department of Justice is bound by the President’s legal determinations.”

Whitehouse said, “These three Bush administration legal propositions boil down to this: one, ‘I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them’; two, ‘I get to determine what my own powers are’; and three, ‘The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.’”

Whitehouse closed his address to Senate with the statement, “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. . . . The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection . . .”

UPDATE BY MARCY WHEELER

The president’s claimed authority to be able to ignore his own executive orders without revising the orders themselves—reported in “The Rabbit Hole”—was one of several issues discussed in an April 29, 2008, Senate Judiciary Hearing on “Secret Laws and the Threat to Democratic and Accountable Government.”

In that hearing, the Office of Legal Counsel Deputy Assistant Attorney General John Elwood confirmed the proposition that “The activities authorized by the President cannot violate an executive order in any legally meaningful sense.” Effectively, the Department of Justice’s key advisory lawyers confirmed they believe the President can act contrary to his own executive orders without formally changing those executive orders.

The hearing attracted some new media attention to this story. In the New York Times’ reporting of the hearing, Scott Shane and David Johnston referred to the “previously unpublicized method to cloak government activities,” for example. In addition, commentator Nat Hentoff wrote a column on the hearing as a whole.

The hearing did not answer one question raised in “The Rabbit Hole”: whether the President had altered the executive order on classification (12958, as amended by 13292) as well as the executive order on intelligence activities (12333) that Senator Whitehouse cited in his first comments on the OLC opinion. But Bill Leonard, the former head of the Information Security Oversight Office who testified at the hearing, did reveal that top administration lawyers were seemingly violating that executive order with regards to a key opinion on torture even as they were revising the order itself.

What is most disturbing is that at the exact time these officials were writing, reviewing, and being briefed on the classified nature of this memorandum [on enhanced interrogation], they were also concurring with the president’s reaffirmation of the standards for proper classification, which was formalized the week after the OLC memo was issued when the president signed his amended version of the executive order governing classification.

In other words, it remains unclear whether the administration has “altered” this executive order, or whether it is simply ignoring it when convenient.

And that remains the significance of this story. The Yoo Memo on torture, by all accounts, should have been released to the public in 2003. Had it been, the US’s policy on torture—and the dubious opinions on which that policy is based—would have been exposed five years earlier. But for some reason, it wasn’t. In the arbitrary world where the president can ignore his own executive orders, we have no way of knowing what to expect.

For information on Senator Whitehouse, see http://whitehouse.senate.gov/.

For the Senate Hearing (including the statements of witnesses), see http://judiciary.senate.gov/hearing.cfm?id=3305.

For Leonard’s statement, see http://judiciary.senate.gov/testimony.cfm?id=3305&wit_id=7148.

For Nat Hentoff’s article, see http://washingtontimes.com/news/2008/may/12/let-the-sunshine-in/.

For the New York Times coverage, see
http://www.nytimes.com/2008/05/01/washington/01justice.html?_r=1&oref =slogin.