When They Think No One Is Looking

It's official: George W. Bush considers that he is, as president of the United States, an absolute monarch with no checks on his power whatsoever:

This morning, Sen. Sheldon Whitehouse (D-RI) delivered an impassioned floor speech to help frame the debate over FISA reform. Using his privilege as a member of the Senate Intelligence Committee, Whitehouse said he has “spent hours poring over” secret opinions issued by the Department of Justice’s Office of Legal Counsel (OLC) — and he took notes.

Whitehouse is a lawyer, a former U.S. Attorney, a former legal counsel to Rhode Island’s Governor, and a former State Attorney General. He said he sought and received permission to have his notes declassified because he wanted to show the public “what the Bush administration does behind our backs when they think no one is looking.”

“To give you an example of what I read,” Whitehouse said on the Senate floor, “I have gotten three legal propositions from these secret OLC opinions declassified. Here they are, as accurately as my note-taking could reproduce them from the classified documents”:

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.

Emptywheel has posted the complete transcript of Sen. Whitehouse's speech.

At least one senator is doing his job, which as Libby points out, is good news:

Until now, the unitary executive theory has remained unexplained, since the White House has kept the rulings from public scrutiny under state's secrets. But Sheldon Whitehouse took the time to pore through OLC rulings and discovered what was hidden in that dismal piece of unread legislation, the so-called Protect America Act, that the Congress passed in August. ...

And the only reason Sen. Whitehouse had access to those rulings was because he's on the Senate Intelligence Committee. Apparently none of the other members of that committee thought it was incumbent upon them to find out "what the Bush Administration does behind our backs when they think no one is looking." No doubt it comes as a huge shock to Bush and Cheney that even one senator had the guts to do so.

More blogger reaction:

The Heretik: "Executive Disorder Syndrome? The disease currently pandemic in the White House is exacerbated by all to certain sycophants repeating the same inane syllables over and over again. Article Two, Article Two, Article Two. ..."

A Tiny Revolution:

Whitehouse concludes:

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.

There is, of course, little reason for Whitehouse to be optimistic this will happen. Still, it's a surprise to see even one senator demonstrating he cares about these issues, and explaining them in a way normal humans can understand. Hopefully the Senate's mental-destructo-rays will have obliterated his brain before too long and we won't have this kind of trouble anymore.

TPMmuckraker:

Those three principles, [Whitehouse] said, boiled down 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.”

Andrew Sullivan: "Every time you think you're hallucinating about the powers this president has accrued to himself, you come across a reality more surreal[.]"