Bush is the Law

Senator Sheldon Whitehouse is a member of the Senate Select Committee on Intelligence and part of his job includes reviewing classified documents from inside the Bush administration as part of Congressional oversight of the Executive Branch — checks and balances and all that good stuff. Well, the Senator found some things that deeply disturbed him and he had them declassified in order to share them with the American Public.

In his press release, he includes direct quotes from classified documents from within the Department of Justice, as well as his analysis of them (although not much analysis is required). These are from the Office of Legal Counsel within the DOJ, which essentially advises the President on what he can or cannot legally do. Here are the actual excerpts that he managed to get declassified:

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."

Peruse them for a moment and the implications become clear. 

1. According to the Justice Department, the President can violate standing Executive Orders left by himself and previous Presidents and does not even need to overturn them first, therefore doesn't need to publicly acknowledge that he is violating or changing the order — it simply doesn't apply to him.

2. According to the Justice Department, Article II of the U.S. Constitution gives the President the power to determine the limits (if any) of the power granted to him by Article II.

3. As far as DOJ official policy is concerned, the law is whatever the President says it is, and the actual laws passed by congress and upheld by the courts are irrelevant. 

How is that for worrisome? This revelation comes on the heels of a long battle over Bush's wiretapping program and its ability to spy on American Citizens.  For those that have been following, the first major battle was when John Ashcroft was still heading the DOJ.  Ashcroft was in Intensive Care after surgery and his deputy directory James Comey was running the DOJ in his absence. Then White House Counsel Alberto Gonzalez asked for approval to renew the surveillance program and after review Comey said the program was illegal and the DOJ could not sign off on it.

Gonzalez didn't like that answer and so made a trip to visit Ashcroft in the Intensive Care unit to ask Ashcroft to overrule his deputy.  Nevermind that power had officially been transfered to Comey and Ashcroft had no authority at the time, many have questioned the morality of Gonzalez going to Ashcroft when the man was ill and in no fit condition to think properly, much less make important decisions.

But it wasn't long before Ashcroft resigned and Gonzalez was appointed the new head of the DOJ. We all saw what happened next: The DOJ fired eight U.S. attorneys for supposedly performance-based reasons.  Tony Snow, then White House spokesperson, went on TV and haughtily told America the reasons were performance based and that any other suggestions were baseless.  When it was revealed that the attorneys in question had largely exemplary records Tony went back on television and blatantly lied, saying he never said that the firings were based on poor performance.

Meanwhile Alberto lost his memory in front of Congress, and some of what he did remember was in direct conflict with other sworn testimony.  That's a red-flag sign typically indicating a little something lawyers like to call "Perjury".  It became increasingly obvious that the lawyers who were fired had been working on investigations of Republican politicians who had large quantities of evidence suggesting they were involved in illegal activities for money.

In fact, down in Alabama there was a related DOJ scandal brewing.  A corrupt land developer had provided strong evidence against the then-Democratic Governor and a number of Republicans; the DOJ prosecuted the Governor but never even opened investigations on any of the Republicans. A number of Democrats found out about the other names that had been named and asked why the DOJ hadn't prosecuted, the DOJ said it wasn't interested.  Upon pressing the DOJ several of the men reported being threatened, one claimed he was told if he didn't drop the matter they would convene a Grand Jury and seek an indictment againt him.

So it would seem that the Justice Department has been converted (perverted?) into an all-around Republican Gestapo that does the President's and Party's bidding rather than anything to do with actual justice. O, Happy Days.

The Bush Administration constantly claims "Executive Privilege" to prevent Congress from fully exercising their constitutional oversight abilities, just like Nixon did. Clinton too. The odd difference is that in both those cases the courts (in Nixon's case, the Supreme Court itself) ruled that Executive Privilege cannot stand in the way of a criminal investigation.  In Bush's case, not so much.  It's unclear whether this is because he's packed the courts with "loyal Bushies" (as the administration themselves refer to them) or because the Justice Department is so filled with them that no one will even let it get in front of a judge.  Either way, Congress doesn't seem like they want to take the administration on.

Speaking of the DOJ not letting things get in front of a judge, when Josh Bolten and Harriet Miers violated their subpoenas by refusing to testify in front of Congress, the Justice Department said they wouldn't prosecute. How nice of them. Bush also got away with using Executive Privilege to block other investigations, including letting Karl Rove violate his subpoena to testify. And of course, no challenge in the courts by Congress.

But we've also seen what happens when all of these protective mechanisms fail: Scooter Libby goes to prison. Funny story, the guy went to prison for lying to Federal Agents and blocking their investigation,  but as it turned out there really wasn't any need for him to lie.  Valerie Plame's identity as a CIA officer was not classified at the time it was made public, in fact Bush himself had secretly declassified it for the express purpose of making the information publicly available.

Of course, he didn't let Valerie know, but he's not required to. And then there's the fact that he ruined the career of an active undercover CIA officer working in the middle east and potentially put her life in danger just so he could get her husband, Joe Wilson back for making it public that Bush had completely misrepresented the whole Saddam/Niger/Yellowcake intel. But none of this is technically illegal, so it's really none of our concern. Besides, if there was really anything "bad" going on, Congress wouldn't stand for it, right?

The Democrats won a huge victory in 2006, taking control of both the House and the Senate. They did so largely by promising to force Bush into accepting timetables for withdrawal from Iraq in exchange for them giving him the money he needed to run the war. In fact one of the first things they did was to pass a landmark bill that gave Bush all the money he wanted contingent on withdrawal timetables.

Bush vetoed it and went on TV to say that the Democrats were hurting our soldiers by withholding money, and helping the terrorists by demanding timetables. That was the last time the Democrats did anything useful. They responded by giving the President all the money he wanted, but this time it was contingent on… nothing. They called it a "compromise". Earlier this year Dennis Kucinich's proposal to impeach Vice President Cheney hit the House floor. In a landslide, Democrats voted… against it.

So, let's take inventory here. We have a President who thinks he is the law, a Justice Department that has agreed with his assessment in writing, courts that are ineffective, prosecutors who only prosecute Democrats, and a Congress that starts investigations, drops them at the first sign of a roadblock and passes whatever bills the Administration wants them to while saving as much face with their constituents as possible.

What could possibly go wrong?

- One