Senator Whitehouse Discloses Bush Logic of Presidential Authority

In a December 7, 2007 speech on the Senate Floor, Senator Sheldon Whitehouse disclosed the content of previously classified opinions delivered by the Bush Administration's Office of Legal Counsel:
For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program. As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on. To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one. 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 a nutshell, these three Bush administration legal propositions boil down to this: 1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.” 2. “I get to determine what my own powers are.” 3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.” 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.
Yes, we need more people like Sheldon Whitehouse in government. But more than that, we need to return to the kind of government that works no matter what particular people hold power. No person should be able to work outside the law, to determine the extent of his own powers, to determine for himself what the law enables him to do. That is what George W. Bush has done, and in order to do it he has demolished the carefully constructed system of checks on power in the U.S. government. We need to elect as our next president someone who will bring restraint back. (Source: Speech of Senator Sheldon Whitehouse on December 7 2007)
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