Editore"s Note
Tilting at Windmills

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July 11, 2009
By: Hilzoy

His Word Was Law

I was out and about last night, so I didn't get to write about the IG report (pdf). Luckily, other people covered the role of John Yoo in all this; besides Steve, publius and Anonymous Liberal are particularly good on this point. I want to focus on another bit.

To set the stage: Comey and Goldsmith have been read into the surveillance program, and have discovered that Yoo's memos are both legally flawed and factually inaccurate, and that some parts of the program are probably illegal. The programs need to be reauthorized by the President, and normally he does so after the Department of Justice certifies that they are legal. By now, Ashcroft is in the hospital, and Comey and Goldsmith refuse to provide this certification. For this reason, Bush sends Alberto Gonzales and Andrew Card to the hospital to try to get Ashcroft to sign off on the reauthorization, which he refuses to do. So:

"On the morning of March 11, 2004, with the Presidential authorization set to expire, the President signed a new authorization for the PSP. [Ed. note: the Presidential Surveillance Programs.] In a departure from the past practice of having the Attorney General certify the authorization as to form and legality, the March 11 authorization was certified by White House counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President's exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 authorization. (...)

At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President's determinations."

'The President had made an interpretation of law'. Think about that. President Bush is not a lawyer. He has no expertise on this matter. Commanding the DoJ to accept his word about what the law is is as crazy as commanding the Environmental Protection Agency to accept his determination that some power plant does not, in fact, pollute, or commanding the FDA to accept his determination that some drug is safe. (Or, alternately, to take his word for it that that power plant or drug is not a "power plant" or "drug" within the meaning of the relevant statutes, and thus that they don't need to make any determinations about it.)

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

This would be less awful had the President recognized any obligation to inform the Congress about his novel interpretation of the law. In that case, they could have weighed in on the matter, and passed a new law. More importantly, the President's actions would have been open to public scrutiny: if he said "the law means what I say it does!", and Congress passed a new law that was absolutely unequivocal, he could of course "interpret" that law as well, but it would be clear to the public what he was doing.

The fact that he was acting in secret prevented that. President Bush was asserting a completely novel power, and no one outside the Executive Branch knew. That should terrify us.

Luckily, some people in his administration had principles. Comey and Goldsmith threatened to resign. Mueller refused to let the FBI participate without DoJ approval, and threatened to resign if he were ordered to participate anyways. The President met separately with Comey and Mueller, and suddenly
everything changed:

"On the morning of March 12, 2004, Comey decided not to direct the FBI to cease cooperating with the NSA in conjunction with the program. Comey's decision is documented in a one page memorandum from Goldsmith to Comey in which Goldsmith explained that the President, as Commander in Chief and Chief Executive with the Constitutional Duty to "take care that the laws are faithfully executed", made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of Attorney General."

On March 16 Comey advised the President that some activities under the PSP were illegal and should be scrapped or changed. On March 17, the President did so.

It's hard not to conclude that Comey, Goldsmith, and/or Mueller cut a deal with the President. They were willing to resign rather than accept the President's "interpretation" of the law one day; the next, they did a complete about face, quickly followed up with their opinions about which aspects of the programs were illegal, and those aspects were immediately brought into line with their interpretation of the law.

But I think it's profoundly dangerous to have, on the record, a statement that the President's interpretation of the law is binding on the Executive Branch. The President does have an obligation to "take care that the laws are faithfully executed". I can imagine cases in which a President with no legal training might go against the DoJ and still fulfill that obligation (e.g., if the DoJ were wholly corrupt.) This is not one of them.

The fact that the President was willing to defy the Department of Justice on a question on which he had no expertise shows that he was not taking his obligation seriously. Going along with the idea that even in a case like this, he has the authority not just to set policy but to decide what the law is, and to do so in secret, without allowing for any checks and balances, is antithetical to our system of government.

I'm glad Comey, Goldsmith, and Mueller managed to stop those parts of the PSP that they believed were illegal. But they should not have played along with the fiction that the President gets to say what the law is. In our system, the President is not a dictator, and public servants should not pretend that he is.

Hilzoy 12:45 PM Permalink | Trackbacks | Comments (17)

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So March 2004 is the actual date of the "Watergate break-in" -- the smoking gun of the treasonous activities and attitudes of George Bush and Dick Cheney.

Pity we look forward as barack wants, or 'walk on by" as the gin-swillin' Nooners would have it.

I guess criminality has become status quo in order to run this "democratic" government these days, what with all the terrorists and havein' tuh protect the corporations and such...

Posted by: neill on July 11, 2009 at 1:14 PM | PERMALINK

This idea of secret laws is at the root of Bush's entire criminal enterprise. I have wondered for years now why this is not brought into focus more in the news, and why it has not been subject to the derision it deserves. This idea that the president can make secret laws that only he and his conspirators know about is an indescribable affront to the American people, the Congress and the Constitution of the United States.

Posted by: Capt Kirk on July 11, 2009 at 1:15 PM | PERMALINK

Bush's "co-equal" (did anyone ever explain that to him?) Legislative branch would not have resisted any of this, either. Think about that for a moment. Bush's handlers set things up the way they did just for the hell of it, because they could. Because the concept of "Democracy" to them is "get away with whatever you can get away with."

Obama's doing a fairly good job following in his footsteps, to my horror, but he's got a ways to go yet. Of course, Obama is a lawyer, and one supposedly well-versed in the Constitution.

Posted by: zhak on July 11, 2009 at 1:19 PM | PERMALINK

Nixon was ahead of his time. I think it fairly inarguable that were Nixon and CREEP to do their thing today, they would have no problem remaining in office - and not a single Republican in Congress woud do anything but call Democratic investigations "partisan witch hunts," and obstruct any effort to impeach.

It is rather sad to look at the early-to-mid 1970s, with no meaningful campaign finance control, illegal break-ins, the Vietnam War and the lies surrounding it, and hateful, raving mad Nixon and his Vice-Crook Agnew as the "good old days" of politics and governance in America.

Posted by: zeitgeist on July 11, 2009 at 1:23 PM | PERMALINK

This horror story is why we must focus not on changing persons, but on changing (or enforcing) law and maintaining oversight. Sure, Obama is better than Bush, but if we think electing a good person will solve all our problems, we're screwing ourselves. Anyone who can get elected President will be no shrinking violet and will have great faith in his or her judgment, abilities and integrity. But people are people and power is power. It's time to find out what really happened; only that way can we work to prevent it from happening again.

Posted by: jrw on July 11, 2009 at 1:31 PM | PERMALINK

If Nixon's actions weren't sufficient, we now have the Shrub Doctrine on the Executive Branch's power to make and interpret laws. If anyone still believes that the GOP is the party of law and its enforcement, they are dumber than a sack of hammers. These acts of the Shrub administration MUST be thoroughly investigated and prosecuted to the extent possible. To do otherwise will ensure a future license to further consolidate powers of the monarch-president with zero consequence. Because it’s a damn certainty that a GOP president will try again and the Donkey party will roll over and play dead.

Posted by: Chopin on July 11, 2009 at 1:36 PM | PERMALINK

Hilzoy points out that President Bush is not a lawyer. That is true. However, in fairness to Mr. Bush, let's not forget that in 1970 he applied for admission to the University of Texas School of Law. So he did have some experience in the field of law.

Posted by: carpenter ant on July 11, 2009 at 2:00 PM | PERMALINK

Bush had much experience with the law from signing death warrants as Texas governor.

Posted by: Capt Kirk on July 11, 2009 at 2:31 PM | PERMALINK

This country is comprised of two types of people- those who believe that GW Bush Big Lied this nation into unleashing war, and those that don't.

Those who do are possessed of the simple understanding that there was no crime Bush was incapable of committing while president. Those who don't are fools, servile cultists, or collaborationists within a corrupt democratic party establishment who today invoke "national security" as a cloak to cover up his crimes.

Posted by: JL on July 11, 2009 at 2:34 PM | PERMALINK

These kinds of things are going to continue to be an issue until one or more Constitutional amendments are passed to explicitly define and forbid them.

Posted by: alan on July 11, 2009 at 3:42 PM | PERMALINK

"L'état cest moi." Louis XIV

Posted by: Liam J on July 11, 2009 at 3:57 PM | PERMALINK
Hilzoy: "But [Comey, Goldsmith, and Mueller] should not have played along with the fiction that the President gets to say what the law is. In our system, the President is not a dictator, and public servants should not pretend that he is."

With all due respect, that's a value judgment offered in 20 / 20 hindsight, and one that's far easier said now than could have been done back then. One must consider their actions within the contemporaneous context of the times.

Need I remind you what happened to CIA NOC operative Valerie Plame some nine months earlier, when Ambassador Joe Wilson pointedly strayed off the Bush reservation with truth in hand?

Cause and effect, man. There was and remains a discernable track record of vindictive behavior over real or perceived slights on the part of the president and vice president.

And prior to the Bush administration's collective emasculation in the wake of Hurricane Katrina in September 2005, one could not simply choose to embarrass the bosses publicly, without any expectation of subsequent personal or professional retaliation against either the transgressor or the transgressor's family.

Posted by: Donald from Hawaii on July 11, 2009 at 4:01 PM | PERMALINK

He is above the law. What does it matter if he broke it (the law)? Yes, there are two groups comprising this country. Those who are accountable for their actions and those who can torture and murder with impunity. Bush falls into the second category. If this news were new, other than being from yet another source, perhaps it would mean something. Yet, because of the complete lack of justice, it is moot.

Posted by: Hazy on July 11, 2009 at 4:18 PM | PERMALINK

I cannot in a million years believe that W can tie his own shoes much less take initiative in this area. I keep thinking of Mel Brooks as Governor William J. Lepetomane in Blazing Saddles. And there is Hedy, I mean Hedley, Lamarr, I mean Dick Cheney telling him "A sheriff! But law and order is the last thing I want. Wait a minute... maybe I could turn this thing into my advantage" or something similar.

Posted by: ComradeAnon on July 11, 2009 at 5:37 PM | PERMALINK

Maybe I think small, or maybe it's because I'm not an American, but to me the equally sad thing in all of this is that John Ashcroft emerged - flawed as he was - as a hero. Because he refused to do something he must have known Bush wanted him to do, knowing he could have probably blamed it on his medication later if he need a get-out-of-jail-free card, just because he knew it was wrong on a scale he likely wouldn't be able to defend later, he looks like a good guy.

But he wasn't. The man we loved to call "Asscraft" and a variety of other insulting names was a spineless vacillator who went along with nearly everything The Emperor asked. He only looks good now because the rest were so much worse.

Whatever happened to the America where a man's word was his bond - where you could pay (or elect) somebody to perform a service and then not have to secretly watch him through binoculars to see if he is stealing from you or cheating you? Did it ever really exist, or is such a system simply not possible today?

Posted by: Mark on July 11, 2009 at 6:00 PM | PERMALINK

"...then laws have no meaning and we might as well have a monarchy." Hilzoy
I think you mean "dictatorship".
Even Louis XIV could only go so far; most monarchs were limited by some form of parliament/diet/council. Even the Byzantine Emperor had to consider the reactions of the population of Contantinople. The only monarchies that might meet your description are medieval Russia and China, both are best described as oriental despotisms (complete personal rule by the monarch).

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Posted by: Aimee on July 15, 2009 at 4:40 PM | PERMALINK
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