Senator Reveals Secret Bush Legal Opinions

(CBS)  A member of the Senate Intelligence Committee said Friday President Bush is standing by "feverish legal theories" to justify actions which are unconstitutional.

Sen. Sheldon Whitehouse, D-R.I., made the comments on the Senate floor during debate on an upcoming vote to amend the Foreign Intelligence Surveillance Act (or FISA).

The primary focus of the legislation is to clarify by what means wiretaps can be initiated against Americans and non-Americans. The bill was written in response to reports that the Bush administration has for years engaged in wiretaps of citizens without acquiring warrants, as is required under FISA law and the Fourth Amendment.

The administration has argued that obtaining warrants can hamstring its surveillance of terrorists.

Critics have cited instances where the administration has used warrantless wiretaps to obtain phone conversations, E-mails and other communications.

Whitehouse said that the Bush administration's actions have been "misguided," by usurping the balance of powers among the executive, legislative and judicial branches in order to exercise unquestioned authority by the office of the president.

Whitehouse said that as a member of the Intelligence Committee, he had examined "highly classified secret legal opinions" issued by the Department of Justice's Office of Legal Counsel, which the administration used to get legal support of its surveillance program.

Whitehouse recounted that, "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."

Whitehouse related three OLC legal opinions which he got declassified:

"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."

Currently, executive order 12333 limits executive branch surveillance to Americans whom the Attorney General has determined to be agents of a foreign power. But under this legal opinion, Whitehouse says, "an executive order cannot limit a President."

"So unless Congress acts," Whitehouse said, "Here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing."

"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."

Despite the 1803 decision Marbury v. Madison, in which Chief Justice John Marshall established that it is "emphatically the province and duty of the judicial department to say what the law is," Whitehouse said the legal opinion declares that it is the President who decides.

"The Department of Justice is bound by the President's legal determinations."

"Imagine a general counsel to a major U.S. corporation telling his board of directors, 'In this company the counsel's office is bound by the CEO's legal determinations,'" Whitehouse said. "The board ought to throw that lawyer out - it's malpractice, probably even unethical."

"We are a nation of laws, not of men," the senator said. "This nation was founded in rejection of the royalist principles that 'l'etat c'est moi' and 'The King can do no wrong'."

[libsluvsuvs]

Absolutely. Bush defies the law not to fight terrorism, but to spy on political opponents and to seize power. As it stands right now there is nothing at all left to prevent him from declaring himself president for life, outside of the bloody rage he knows it would inspire in real Americans. If he is stupid enough to actually try to take power at the end of his term then he''''d better bring all of the troops home first, because it''''s the only thing that might stop the lynch party mob from stringing his sorry lying as*s to a tree on the lawn of the White House, while millions of people around America and the world cheer.


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Posted by SgtRDS at 08:41 PM : Dec 09, 2007
+ report abuse


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DONT SMOKE CRACK!!!!!!!!your entire post is based on nothing but just PURE ALLEGATIONS..DELUSIONAL ''WHAT IFS''..AND RECKLESS LIBERAL BULLSH*T..

what you just said WIL NEVER HAPPEN...

[sgtrds]

Bush didn''''t want to obey the law because he was using this program to spy on his political enemies just like Nixon.

Posted by micma at 01:51 PM : Dec 08, 2007

Absolutely. Bush defies the law not to fight terrorism, but to spy on political opponents and to seize power. As it stands right now there is nothing at all left to prevent him from declaring himself president for life, outside of the bloody rage he knows it would inspire in real Americans. If he is stupid enough to actually try to take power at the end of his term then he''d better bring all of the troops home first, because it''s the only thing that might stop the lynch party mob from stringing his sorry lying as*s to a tree on the lawn of the White House, while millions of people around America and the world cheer.

[libsluvsuvs]

THAT is hilarious! Your "right wing" (neocons) have fought hard to undermine the Constitution, illustrated quite clearly in their swift-boat style strategy against the ACLU, as well as w''''s multiple attacks on our Constitution.

Posted by actornaught at 12:05 PM : Dec 09, 2007
+ report abuse

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I beg to differ..the LIBERALS are notorious for TRYING TO COMPROMISE THE CONSITUTION..most recent..they try to rewrite the 2nd amendment

[actornaught]

A literal interpretation of the law would be right wing , not left. Lefties would would argue against the constitution....
Posted by magoo2u1 at 07:58 AM : Dec 08, 2007

THAT is hilarious! Your "right wing" (neocons) have fought hard to undermine the Constitution, illustrated quite clearly in their swift-boat style strategy against the ACLU, as well as w''s multiple attacks on our Constitution.

[lucasnico]

tiddsanbeer..........sometimes you don''t have to go any further than the name to know you''re dealing with real intelligence!!

[kctoon]

Executive Orders have been a problem in imperial presidencies for many years. The "power of the treaty process" is vested in the Executive Order without the advise and consent of the Senate. Now, the President no longer needs to pay attention to the ''treaties'' he and past presidents have made. The President''s very actions determine the status of an Executive Order - either modifying it or voiding it.

The President has given himself the legal authority to determine the extent of his powers under our Constitution''s Article II. Do we need the President''s permission to hold elections next year?

Article II is the Article stating that the President can be impeached. Do we need the President''s permission to impeach him?

The President now instructs the Justice Department on what the law is. The President is now the chief law of the land.

We can no longer have elections without permission of the President, we can no longer have our representatives pass laws that will be honored without the permission of the President, and we no longer have the power to remove the President from office.
We no longer have an effective Constitution.

We have a President that has instructed the Department of Justice to grant him dictatorial powers. This is no longer a national problem. The entire world has much to lose if our Constitution falls by the wayside. I suggest that we now have a global problem bigger than WWII.

[rickstas]

Sen. Sheldon Whitehouse -- curious name!

[ubrew12]

tiddsanbeer said: "Bush is operating in the dark...the liberala are forcing him to." FISA is a secret court. Move back to Stalin''s Russia if that''s the kind of ''security'' you''d like.

[the74blaster]

Could you imagine today''''s mainstream media reporting back in world war II?

Posted by tiddsanbeer

Yes it would be interesting. I mean reporting on a war being run with competent president with a meaningful alliance would certainly be refreshing.

These are two different conflicts fought for different reasons. World War II was about survival and the original reason for Iraq is alledged WMDs and an alliaince with Al Qaeda.

In fact, I also recall comments from the GOP supporters on how we were going to be greeted as liberators and that any post invasion occupation would be brief.

I do not like false statements and Bush has told us far more than Clinton has.

[micma-2009]

Bush didn''t want to obey the law because he was using this program to spy on his political enemies just like Nixon.