Harper's Magazine Online has a very interesting article out which is a speech given by newly elected Democratic Senator Sheldon Whitehouse of Rhode Island. In this speech, Senator Whitehouse discloses that he has read memos prepared by the Bush Administration's Department of Justice. Here basically is what he says the memos claim:
To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.
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.
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.
The Department of Justice is bound by the President’s legal determinations.
Later on in the speech, Senator Whitehouse puts forward in plain English that these propositions mean:
In a nutshell, these three Bush Administration legal propositions boil down to this:
“I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”
“I get to determine what my own powers are.”
“The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”
True conservatives are supposed to honor tradition and not seek radical change of governmental institutions. One of the most honored traditions in American jurisprudence is the concept of separation of powers. Senator Whitehouse in his speeech sets forth how that theory is supposed to work:
Our Constitution has as its most elemental provision the separation of governmental powers into three separate branches. When the government feels it necessary to spy on its own citizens, each branch has a role. The executive branch executes the laws, and conducts surveillance. The legislative branch sets the boundaries that protect Americans from improper government surveillance. The judicial branch oversees whether the government has followed the Constitution and the laws that protect U.S. citizens from violations of their privacy and their civil rights.
This concept was set forth in the Constitution as a check on the arbitraty exercise of governmental power. As Chief Justice John Marshall established in the opinion of Marbury v. Madison, it is the province and duty of the judicial branch of government to say what the law is and how, in the final analysis, the Constitution is to be interperted.
Since Bubble-Boy and the Duck Hunter don't like their power limited, however, they get other American institutions to do their dirty work for them. One of them is the Department of Justice. Another is the Pentagon. Another is the CIA. Still another is the Department of State. All of these institutions have been corrupted by this Administration, as, indeed, has the standing of America in the world.