Senator Sheldon Whitehouse on wiretapping: President is not king on matters of spying on Americans
On the Senate floor Friday, Senator Sheldon Whitehouse (D-RI) condemned President Bush's use of executive orders, and perceived manipulation of the Justice Department through slanted legal opinions, to achieve his ends on the surveillance of Americans abroad.
"Make no mistake," says Whitehouse of the Protect America Act, "the legislation we passed in August is significantly about spying on Americans -- a business this administration should not be allowed to get into except under the closest supervision."
"We have a plain and tested device for keeping tabs on the government when it's keeping tabs on Americans," continues Senator Whitehouse. "It is our Constitution."
A member of the Senate Intelligence Committee, Whitehouse was given access to classified documents outlining legal opinions rendered by the Bush Administration's Office of Legal Counsel, which Whitehouse says is engineered to give Bush the legal permission to unaccountably spy on Americans.
Three of the legal opinions, which have been declassified, are:
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.
Says Whitehouse in response, even though Executive Order 12333 limits surveillance of Americans to those the Attorney General has determined to be an "agent of a foreign power," this legal opinion offers a convenient loophole to waive that mandate, without permission or notification to any person or body.
"So unless Congress acts," says the Senator, "here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing."
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.
"Yes, thatís right," says Whitehouse. "The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are."
Whitehouse cites the 1803 Marbury v. Madison decision, setting the legal precedent that the judicial branch, not the executive, says what the law is, which contradicts any notion the President might have about his gauging of his own legal powers.
3) The Department of Justice is bound by the President's legal determinations.
"We are a nation of laws, not of men," says the Senator. "This nation was founded in rejection of the royalist principles that 'l'etat c'est moi' and 'The King can do no wrong.'"
Continues Whitehouse, "We are not some banana republic in which the officials all have to kowtow to the 'supreme leader.'"
Whitehouse condenses the three legal opinions from Bush's OLC to:
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," says the Senator, "this is where you end up."
Text of Senator Whitehouse's speech is available at his website, where a video is also available for download.