Another day, another civics lesson. Today, boys and girls, we return to the whole question of executive authority...

This all arose from yet another discussion at America's Debate relating, this time, to the Plame investigation and whether or not Scooter Libby's testimony will have any impact on the Oval Office - or, indeed, the upcoming Congressional election. One of the defenses put forward for the actions of the Bush administration is that the President is clearly allowed to disclose classified information. And, as one participant put it, "is also authorized to give that authority to others. If the order came from the President, no wrong-doing is possible, by definition."

On reading this, one is compelled to ask, "By whose definition?" Indeed, that's exactly what I did:

"Stop throwing the Constitution in my face. It's just a goddamned piece of paper!"
George W Bush, November, 2005
First, this whole "license to declassify" was created in Executive Order 13293, issued by President Bush on March 25, 2003. I think at least some might have a problem with a president issuing an order that says "I can do whatever I damned well please", then proceeding to do whatever they damned well please. This tends to be known as "autocracy". I realize, of course, that that is the way this administration has been operating since Day One, but does a president have the legal right to make the law up as s/he goes along??

Second, even if we accept Executive Order 13293 as the epitome of righteous lawmaking from the Oval Office (which it so clearly is not), it still would not give the president leave to declassify the NIE or anything else that he did not personally classify in the first place.

The three-year-old Executive Order specifies that declassification can only be effected by "the original classification authority". In other words, only the National Intelligence Board or the Director of Central Intelligence, as "the original classification authority", can declassify a National Intelligence Estimate. Period.

If the President or the Vice President or anyone else wanted to declassify the NIE, a specific request for declassification would have had to have been made. If a specific request had been made for this document, under the Mandatory Declassification Review provisions of the Executive Order, review of declassification of the NIE is required to be made by the originating agency. There is no claim that this was done and no record of it having been done. Otherwise, classified information can only be declassified when the conditions set at the time of the classification are met. For National Intelligence Estimates, that would be twenty-five years after they are issued.

If what Libby says is true, President Bush broke the law (even his own) and endangered national security and he should be censured, impeached, tried, found guilty, and imprisoned. Admittedly, this is relatively trivial compared to some of the other crimes of President Bush and his handlers, but the American people should rejoice at any opportunity to put this man where he belongs: out of office and behind bars.

Of course, no salient argument goes unpunished. This was one response:


And my response to that:

Ah, power. Power, power, power. We've been hearing a lot about that for the past five years. What, one wonders, ever became of the attendant Duties and Responsibilities of our servant, the Executive?

I was also wondering when the great neocon invention, "the unitary executive", was going to rear its ugly head in this debate. The notion that "all power in the Executive branch is derived directly from the power of the Presidency" is just wrong. I won't even bother arguing that all power in the Executive is derived directly from the people - we seem to have moved well past the point when we remembered that the President works for us - and we "delegate" power to him. But the executive branch is not "simply a delegation of the President's powers to others". It is the delegation of the Government's power - to others within that Government.

The unitary executive theory is just that: a theory, not a law. Sorta like intelligent design, only shakier. Except, in this case, the opposing point of view - that of checks and balances among the branches of government and of a limited, indeed weak, Executive - is not another theory, it is the law. While the usurpation of power embodied by the unitary theory is in danger of becoming the prevailing paradigm, especially under this administration, there is yet hope that the intent of the Founders will again be in the ascendant - perhaps because of this administration. Well, I can dream, can't I?

But let's forget about neocon fantasies (and my libertarian dreams) for a moment and concentrate on something real. The Constitution of the United States of America was established to define the branches of government and secure the rights of the states and their citizens. In doing so, its authors sought to limit the powers of federal government - especially those of the Executive. When certain powers are secured in that document, it is those powers and those powers alone that are conceded. There is no clause that implies that "any other powers not delegated to the United States by the Constitution are reserved to the President". Indeed, it's quite the opposite. Those powers are "reserved to the States respectively, or to the people".

Within the federal government, powers (or what should be the lack thereof) that are not delegated have their limitations defined in the United States Code - of which, more in a moment. But, from the outset, presidential power was never intended to be unilateral or unchecked. The Constitution states - rather plainly - that it is the duty and the responsibility - the Power, in fact - of the Legislature:


There are no qualifications there. There's no "all Laws except those made by the President". More pertinently, there's no "all other Powers... or in any Department or Officer thereof except those claimed by the President". The power to regulate "power" in the federal government is vested in Congress.

Further, the unitary executive theory holds that all three branches of government have the power to interpret the Constitution. This is nonsense. Only the courts can do that - and only through the legal process:


Again, no qualifications. But this is why there's been so much talk of "judicial activism" of late - not because the judiciary threatens the Legislature (contrary to what PR would have us believe, Congress can easily enact new laws to overrule the Supreme Court should they feel the Justices have overstepped their bounds), but because they challenge the authority of the "unitary executive".

It is worth noting that every time the unrestrained power of the executive has been at issue in a court decision - every time - the courts have ruled against the executive. The unitary executive theory not only lacks Constitutional foundation, it lacks any legal precedent to support it.

The bottom line here is the question of why this country was born in the first place. Was the Constitution written in reaction to some weak little commune that needed a strong authority figure or in reaction to an unfair and capricious tyrant with too much individual power? What, exactly, were the Founders seeking to change? The means by which an autocrat could rule by decree? I don't think so.

Prior to the American Revolution, a sentiment like "if the head of state decides to declassify something, then it is declassified" would make perfect sense. Post revolution - and according to the US Code, that is simply not true. President Bush can issue all the Executive Orders he wants but they cannot violate the law. He could issue Executive Order 13398 stating that the President has the right to seize anyone wearing a yellow necktie and run them through with a scimitar. Guess what? Abduction and murder would still be illegal - even for President Bush. The same can be argued for Executive Order 13292 (and a host of others). Presidential decrees - especially those that extend well beyond the bounds of "expressing how things are going to get done" - are not de facto legal, constitutional, or just. Something isn't a law because the President says it's a law. The point is that legislation already exists relating to classified information - and the President cannot simply revise it at will.

The CIA is a peculiar organization, to say the least. It was constituted by Congress, reports to Congress, and is overseen by Congress, yet is directed by the National Security Council, falls vaguely within the Department of State, advises the President, and is semi-autonomous. With such a murky agency (especially one with such an apparently infinite brief), one would think that the Legislature would be very cautious in defining its oversight - particularly in relation to handling classified materials. One would be right. They were.

The law relating to National Security can be found in the United States Code Title 50 Chapter 15. The CIA, as defined in the Code, is an investigative agency authorized and overseen by Congress. The purpose of National Security legislation, as stated in the Code, is "the establishment [by Congress] of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security". Note the word "integrated". The law doesn't mean "integrated within the executive branch" any more than "the Government" means "the President". It is Congress - specifically the Select Committee on Intelligence and the Committee on Foreign Relations of the Senate and the Permanent Select Committee on Intelligence and the Committee on International Relations of the House of Representatives - through whom the Director of Central Intelligence must, for example, certify the handling of all classified material. Further,


That's pretty clear. Presumably, as the DCI is merely a presidential "delegate", the President himself has the same obligation to Congress. (In fact, this is the case - see below.) Regardless, the argument that the President is the DCI is specious. The President has the responsibility, granted by Congress, to appoint the DCI with their advice and consent. This does not make the DCI a surrogate President - it makes him or her a civil servant answerable to the Legislature.

But let's look at the Code in relation to classified materials. The first section of Subchapter III - Accountability for Intelligence Activities is entitled "General Congressional oversight provisions" and it specifies that it is up to "the House of Representatives and the Senate" to "establish, by rule or resolution of such House, procedures to protect from unauthorized disclosure all classified information, and all information relating to intelligence sources and methods" about which they are to be kept "kept fully and currently informed". I don't see the word "President" in there anywhere. [Okay, the President is mentioned in the statute. He is also obliged - by law - to keep Congress "fully and currently informed" of all intelligence activities. This is yet another example of the Executive being subordinate to Congress - specifically in relation to national security and intelligence.] Nowhere in the United States Code is the authority to "establish... procedures to protect from unauthorized disclosure all classified information" abrogated to the President. Executive Order 13292, of itself, is unlawful. But even were we to accept such an order as valid, it still doesn't give President Bush license to declassify material over which another branch of the federal government has oversight. The power of the Legislature has not been "delegated" to the Executive - except, it would seem, by order of the current executive. It's good to be the king, eh?

Specifically in relation to the Plame case, Subchapter IV - Protection of Certain National Security Information has a few interesting things to say, especially in § 421: "Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources":


"Whoever", lest there be any confusion, refers to anyone. It's not "whoever apart from the President". Nowhere in this subchapter (or anywhere else in the US Code) is the President or anyone else exempted from the law. But maybe this statute is the reason for "Scooter" Libby to suddenly become so talkative...

Another participant went on to point out that "Bush is the CEO of the Executive Branch", asking "Just who do you think appoints the DCI?" The correct answer is the president - with the advice and consent of Congress. The president is described above, more or less aptly, as the CEO of the Executive Branch. A CEO is an administrator, a bureaucrat - not a tyrant. As Bureaucrat-in-Chief, presidential appointments are responsiblities, not "delegations" of his own personal power. The president appoints the Chief Justice of the Supreme Court. Does that mean that he is merely delegating his supreme supreme judicial authority to some underling? National Security falls under the Legislative branch, not the Executive. The notion that Bush is the Uber-Director of the CIA is a nonsensical as the notion that he Uber-Justice of the Supreme Court or Uber-Head of the Federal Reserve or Uber-Führer of anything apart from his own damned office (which he does a rather pitiful job of managing). The president is a paper-pusher - and a paper-pusher operating on the advice and with the consent of Congress.

A third participant agreed that there are "a lot of the misunderstandings lately are about Presidential power and people attributing things to that office which are simply not there, and for good reason." For obscure reasons, this was answered with an unattributed quote describing the executive branch of the federal government:


It turns out that this is the definition to be found at whitehouse.gov. I suggested that, rather than quoting the Bush White House, it might've been better to quote the US Constitution:


There's nothing in there that makes any claims about the Executive "overseeing the various agencies and departments of the federal government". Why is that, one wonders? Maybe because it wasn't supposed to be in there. Maybe because it is not an absolute power conceded by the US Constitution to the short-term bureaucrat in the Oval Office. Maybe because the US Code clearly defines exactly how the various agencies and departments of the federal government operate and [i]who[/i] has the specific oversight responsibilities for each. When it come to national security, the oversight responsibilities belong - explicitly - to Congress. And no Executive Order in the world should be able to override the United States Code and the United States Constitution. That is tyranny. That is why we fought a revolution.

Why should I care so much about the liberties this administration keeps taking? Why spend one of my precious few days off researching the US Code? Why bang my head against the same brick wall over and over and over? Sometimes, I just wish I could get on with my own damned life. Oh, right - and that's why I care so much about the liberties this administration keeps taking.

Tags: americasdebate, political rant, source
humour: busy

So much of my time the past couple of days has been spent entangling myself in the illegal immigration issue at America's Debate that, rather than reiterating much of it here, I'm just gonna link:

The first entry: On Immigrant Rights and Employer Responsibility

The first response: On Relocation and "Guests"

The second entry: On National Security and Geography

The second response: On the Export of Labor and Other Straw Men

The final (?) response: On Corruption and Racism (with Bonus History Lesson)

I wouldn't have spent so much time on something so relatively trivial if I didn't think it was symptomatic of most of the problems confronting this country, at least on the domestic front: racism and crony capitalism which, combined, indicate dire prospects for "globalization". The entries may not be worth reading, but they were worth getting out of my system.  :)

Tags: americasdebate, political rant
humour: tired

Tonight was the third broadcast of America's Debate Radio. It seems to be doing fairly well as a caller-driven political talk show - though both adjaime and admike have been doing a great job at moderating, as well as providing some excellent original material. For example, this evening they aired an ad for CheneyHunt USA, which is hilarious.

The show goes out as a live stream every Wednesday at 9pm or one can subscribe to their Podcast. Each broadcast is archived, so you can actually hear yours truly rambling a bit on the first broadcast (and Sean being much more articulate) as well as struggling with having a terrible connection tonight. Yeah, well.

Tags: americasdebate, media, political diversion
humour: impressed

This was fun.

Tags: americasdebate, queerness
humour: impatient

Aargh. Someone at America's Debate decided to raise the whole question of the US as a fascist state again. So, naturally, I had to spend my entire evening putting in my two cents - or more like my $1.87. Oh, well - at least I had Daylight Savings Time on my side.

Tags: americasdebate, political rant
humour: tired

One of the reasons that I haven't really updated here in the last coupla days is that I've got myself enmeshed in the latest Legalization of Prostitution discussion at America's Debate. I made the mistake of equating marriage with prostitution and, geez, you'd think I had just stomped a dozen puppies to death. I haven't seen such outrage since the last time someone suggested that the Bush administration was maybe, perhaps, just a teensy bit fascistic.

Anyway, my lastest was this entry, running to some six thousand words and consuming a few hours - which has understandably cut down on my LJ time. I think I'm going to give it a rest.

Tags: americasdebate, political rant
humour: overextended