Sen. Whitehouse Reveals Secret DoJ Legal Memos: Bush Determines What Is Constitutional.

Finally a lawmaker starts digging into the legal opinions that Bush altered. And that is starting with EO 12333.

Thinkprogress:

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.

On a side note: Interesting catch:


Executive Order 12333 in 1981

1.4 THE INTELLIGENCE COMMUNITY


(a) Collection of information needed by the President, the
National Security Council, the Secretaries of State and Defense,
and other Executive Branch officials for the performance of their
duties and responsibilities;

Now Executive Order 13355

Sec. 6. Technical Corrections. Executive Order 12333 is further amended as follows:

(c) Subsection 1.4(a) is amended by, after ``needed by the President'', inserting ``and, in the performance of Executive functions, the Vice President