TheAgitator.com
Now: Secret Laws
Thursday, May 22nd, 2008Go read Nat Hentoff on the Bush administration’s fondness for secret laws.
It’s really difficult overstate the hubris and lust for power of this administration. Once again, I’ll plug Charlie Savage’s terrific book Takeover, which delves into this stuff in frightening detail. But basically, Bush believes he can sign a bill passed by Congress in a public ceremony, then later issue a secret signing statement stating he intends to completely ignore the law–and he believes he can keep the whole thing secret from the public, the courts, and the Congress.
Like most of Bush’s executive power grabs, he relies on findings from the Office of Legal Counsel to give him cover. The OLC’s opinions are considered binding on the executive branch. If you work in the executive branch, you’re essentially immune from prosecution if the OLC has signed off on whatever you’re doing. Which is why John Yoo’s OLC memos on torture and detainment are so devastating.
Thing is, over the years Bush (actually, Cheney) has staffed the OLC with lackeys like Yoo and Jay Bybee (now a federal judge). The Bush administration has treated the OLC not as an office from which to get a considered, scholarly opinion on the constitutionality of some power they’d like to claim; rather, they tell the office the power they plan to claim, and ask the OLC to come up with a way to justify it. Yoo’s memos would frequently contain footnotes supporting his theories of executive power and secrecy. Unfortunately, those footnotes frequently would refer to previous writings by John Yoo.
What’s worse, though these opinions on the constitutional limits on executive power (essentially, that there are none) represent a minority of constitutional scholarship so small you could make a good case that they’re not really serious positions at all, unitary executive theorists have managed to put like-minded people in positions of power, including several seats on the Supreme Court (thanks in no small part to the spineless Democrats in Congress). That gives the ideas of people like Yoo, Bybee, and David Addington a de facto legitimacy, despite the fact such ideas have almost zero support in academia (and that would include most conservative constitutional scholars).
Remember that next time conservatives talk about “activist judges” and about retaining respect for “original intent” and “strict constructionism.” The all-powerful, unchecked executive embraced by Cheney, Yoo, & Co. was explicitly and repeatedly denounced by the founders. We had just fought a bloody war to remove the yoke of a king. There’s no historical record at all supporting the idea that they’d have then intended for us to have an elected monarch. It sort of defeats the whole purpose of the idea of checks and balances.
Wait, if the White House follows the advice of its lawyers, it can’t be prosecuted for doing so? How does that work? If a lawyer were to advise me to beat the crap out of some guy, I would still be prosecuted for it, regardless of the fact that my lawyer told me to do it, right? I guess I’m not sure where the idea that the OLC is an all-encompassing ass-covering for the executive is coming from.
Jeff-
I take it your last name isn’t Bush, Clinton, or Kennedy; otherwise you could probably go out now, beat the crap out some guy, eat a baby, run over a couple joggers, and still be elected to political office (and not criminally charged for a damn thing). We may not yet be a monarchy, but we already have an aristocracy.
It’s the attempt to establish official sanction that bothers me most. I know screwed up things happen involving the government, and always have…but so long as there is at least official shame when you get caught lying, cheating, stealing, murdering, and playing baby gestapo I can believe in the country and the system of government. When I joined the military long ago (no longer), I can remember clearly thinking of two things that were horrors I chose to stand against. Horrors of governments that must not be allowed to spread to our world and that were so abhorrent that no thinking person would support them.
1) Secret prisons of torture and death, with no legal release date, merely a limbo to disappear enemies into.
Guantanomo isn’t the Gulag, but it’s the same concept…the execution is only different because we’re still pretending to be “Americans” somewhere in our national psyche.
2) Dictatorial ruling where laws were generated in secret and executed in secret, so that all must live in fear of what they did not know.
Pretty simple. When some jerk in middle government takes the law into his own hands and gets busted, we used to pretend he was wrong and acted without sanction. If even that goes away I can’t see anything in theory remaining of the American ideal. The practical side will catch up soon enough, especially now that the economy hit a bump.
I’m holding my breath to see if there’s an america left when the new order takes over after this election. History suggests I shouldn’t hold it terribly long.
If the DA advised you to beat the crap out of someone you’d have a pretty good chance at avoiding prosecution. OLC is where the Justice department goes to decide what’s against the law. Yes it’s scary.
Enough with blaming the ’spineless Dems’. This is a result of Republicans. There isn’t blame to go around, unless you’re blaming Dems for losing elections to the point that Republicans felt emboldened enough to attempt to overturn the filibuster by having Cheney declare it unconstitutional if the Dems showed ’spine’. That wouldn’t have stopped even one Justice from getting on the SCOTUS, and likely would have resulted in Harriet Myers getting confirmed. Enough of this ‘both sides are to blame’. Blame Dems for things they do that you disagree with, not things they are unable to do because the country hasn’t elected enough of them.
Congress can still impeach him for breaking the law. The President doesn’t have the legal authority to just ignore federal law as he sees fit. If he signs a law making torture illegal, then breaks it, Congress can legally remove him. Thank God our founders had the good sense to not make the impeachment process go through the courts, but rather through a potentially very hostile legislature.
Sounds like Radley still suffers from pre-9/11 thinking…
crack – I disagree. This is a failure of the two party system. There is no incentive for balance. Business interests and power have circumvented the party system. We only have one political party that serves a power other than the people’s will. The participants are wearing two different color shirts to provide the illusion of contrary goals. Aldous Huxley envisioned a future world where Henry Ford was the architect of society, but I believe PT Barnum would have been a more appropriate choice. I believe the inertia of Fascism will be cooled off in the next administration, but only as a means of more control later since the natives are becoming alarmed.
Mike–Yes, Congress can still impeach–that is, if they already hadn’t said that they weren’t going to, for any reason, because, you know, political considerations.
It has often been said that Congress is always fighting the previous battle; here, they see that the GOP got flambe’d for the Clinton impeachment, and thus, decide that when the current President, you know, is actively subverting the law and Constitution, they’ll get roasted too. Sure, Bush has like a 26% approval rating, and Clinton was, what, in the 60’s at the time(just guessing, because I don’t feel like looking it up).
Yes, I’m bitter.
I’ve mentioned this before but it bears repeating. The people should push Congress to make it a law that if the President is impeached, there is NO POSSIBILITY OF A PARDON.
Short of that, Impeachment is bullshit. Theoretically, we hold our public servants to a higher standard. The President should be held to the very highest standard. If he/she breaks that trust, there should not be a way for him/her to get away with their transgression.
I think that one law would restore much of the faith the people have lost in their government.
“Spread the word. We know how to take the bastards down.”
Don’t confuse impeachment with a criminal conviction. Impeachment is removal and isn’t subject to a pardon. There is the possibility of a pardon to prevent a removed officer from criminal penalty, but impeachment isn’t subject to pardon.
http://www.law.umkc.edu/faculty/projects/ftrials/impeach/constitution.html
Maybe I’m just confused but I keep re-reading the constitution and I can’t find the part where it mentions that the Executive branch has to lay down for the Judicial and Legislative brances and do only what they allow.
Congress wants to control everything, including the presidency, unless a tough decision actually has to be made and then they pass it off to a committee of un-elected rep’s to do the dirty work for them.
It makes much more sense to have one administration in charge so we know who gets the blame along with the credit. It’s a whole lot easier to toss out one president than it is to overturn both houses of congress. Maybe that’s why the founders wanted the president to be the Commander-In-Chief instead of congress, but I could be wrong.
Crack,
I believe Edintally meant a pardon for crimes committed in office after the president has been impeached and removed.
Also this ass-covering power the OLC has does not belong with the executive branch. It seems to me it should be part of the judicial branch. Since it relies on the interpretation of law and the Constitution.
You really need to go re-read your Constitution. Your view is the one that stretches the Executive beyond its actual powers.
#11
You are wrong. If you read the Federalist Papers as well as the diaries kept by the founders during the Constitutional Convention, you’ll find that “Commander in Chief” meant only that the president was the day-to-day commander of the military, particularly during wars already declared by Congress.
There’s a huge difference between that and saying the president is free to ignore any laws passed by Congress, that he may wage war without consulting Congress, that he may unilaterally withdraw from treaties without consulting Congress, that he can make his own laws in secret and enforce them without anyone letting them know what they are, and that he can arrest, torture, and indefinitely detain American citizens without ever letting them talk to a lawyer, see the evidence against them, or bringing them to trial–and that needn’t let anyone know whom he has detained or why.
Do you really think the above are good policies? How, exactly, are they different than an elected monarch or a dictator?
“Blame Dems for things they do that you disagree with, not things they are unable to do because the country hasn’t elected enough of them.”
Is there any evidence at all to suggest that, with control of both congress and the presidency, the democrats (particularly the DLC wing of the party) would do anything at all to curb executive power? A firm majority in the House since 2006 and clear violations of the law by the administration and we are effectively where we were in 2004 as far as accountability goes.
Give us no lectures about the limitations of the power of the House – they control the power of the purse. They could have stopped every piece of legislation having to do with the budget until their demands were met. It may not be politically expedient, especially with how poorly they tend to frame the issue compared to the Republicans, but be honest and say it isn’t politically expedient if that is the case.
The President’s job is primarily to execute the laws that Congress passes. If he thinks those laws are bad, he can veto them. Ignoring those laws is the exact opposite of the president’s obligation. “Commander in chief” means he can tell generals what to do, not that he can do whatever he wants to whomever he perceives as the enemy.
Ben R.:
I have no problem blaming the Dems for things since 2006. I’m referring to this:
The court and the most egregious examples of unitary exec sympathizers came pre-Nov 2006. Pre-2006 the Dems were basically token opposition, no matter how much spine they had.
Since 2006 Gates and Mukasey appeared to be competent and independent enough, and Mukasey is definitely more independent than Gonzalez. Their problem is they work for Bush. He controls the executive branch, and thus the Justice dept. They won’t enforce subpoenas if Bush exerts privilege. They won’t pursue any meaningful investigations. They do pursue political prosecutions, as RB has covered here. Cheney has made the bizarre claim that congress has no oversight over him because he’s the 4th branch of government. How do you prevent this short of completely shutting down the government? Bush won’t sign any law limiting him, or he’ll ignore it and rely on an OLC decision. If the house cut off all exec branch spending in a budget resolution Bush would re-instate it in a signing statement and go on his merry way. Congress would need their own police force to make Bush do anything. His signing statements aren’t laws, they have no weight at all, but his use of the DOJ is what allows him to get away with everything. It’s truly amazing what he’s done and how little the media has done to report it. People would care, but the media is more worried about Natalie Hollowell’s missing blonde corpse.
Hooray for Hentoff!!!
Well in fairness to the current crop of Senate Dems, the Senate is currently on a 60 vote-rule…that is, if something doesn’t have 60 votes, it’s not even being brought up because the GOP is currently fillibustering *everything*. When they lost control in 2006, the GOP basically told the leadership that this was the plan, and when it comes to things like war funding, it’s going on straight party lines. I’m not saying it excuses Harry Reid on some things(like wanting to capitulate on FISA), but as far as withdrawing war funding….well, it’s been tried several times and has been fillibustered each time, with the GOP immediately distributing talking points through FOX about how the Dems are cutting funds for the troops.
I fully admit though that the House has no excuse and Pelosi screwed up royally when she took impeachment off the table on day 1. On the other hand, the House is currently the only thing blocking FISA so……
I guess what I’m trying to say as I ramble on is that saying “spineless Dems” is a little too black and white, especially in the face of an administration that has said they won’t answer subpoenas and a Justice Dept. that refuses to enforce said subpoenas, because the WH has told them not to.
Yes my assumption was that impeachment would include or be quickly followed by criminal charges. Probably an assumption I shouldn’t make. Nevertheless, I stand by my suggestion even if it has to be fine tuned by minds greater than my own.
Working off what Salvo has said…
I grew up learning about and believing we had a system with Checks and Balances. Hell it’s still being taught. Over the last seven and a half years, I’ve come to realize that it has only ever worked because those in power honored the system. George Bush has shown us that the system does not work if the parties involved choose to ignore it. They simply choose not to follow the rules and the rest of us are irrelevant. We might as well get in one big circle jerk for the effect we are having on this administration.
The problem seems like it will only get worse because power is so rarely given up without the threat of force or outright use of force. I like Obama but I don’t realistically see him giving up any powers that Bush created. He may not use them, but if he doesn’t “get rid” of them, they will be there waiting for the next President.
I’m a pretty calm person by nature, but I’m a little freaked out about the potential long term damage Bush has caused.
“Yoo’s memos would frequently contain footnotes supporting his theories of executive power and secrecy. Unfortunately, those footnotes frequently would refer to previous writings by John Yoo.”
Hmmm. Wonder where he learned that trick from? Couldn’t possibly be “Justice Professionalism,” could it?
I’m not familiar with the practice of referencing one’s own work. Is that even a legitimate footnote. Sounds dangerously close circular reasoning.