Government in Secret
The Yoo memo is just one example of Bush’s hidden laws.
The Bush administration recently announced it will allow select members of Congress to read Justice Department legal opinions about the CIA’s controversial detainee interrogation program that have been hidden from Congress until now. But as the administration allows a glimpse of this secret law — and it is law — we are left wondering what other laws it is still keeping under lock and key.
It’s a given in our democracy that laws should be a matter of public record. But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.
Perhaps the most notorious example is the recently released 2003 Justice Department memorandum on torture written by John Yoo. The memorandum was, for a nine-month period in 2003, the law that the administration followed when it came to matters of torture. And that law was essentially a declaration that the administration could ignore the laws passed by Congress.
The content of the memo was deeply troubling, but just as troubling was the fact that this legal opinion was classified and its content kept secret for years. As we now know, the memo should never have been classified because it contains no information that could compromise national security if released. In a Senate hearing that I chaired April 30, the top official in charge of classification policy from 2002 to 2007 testified that classification of this memo showed “either profound ignorance of or deep contempt for” the standards for classification.
The memos on torture policy that have been released or leaked hint at a much bigger body of law about which we know virtually nothing. The Yoo memo was filled with references to other Justice Department memos that have yet to see the light of day, on subjects including the government’s ability to detain U.S. citizens without congressional authorization and the government’s ability to bypass the 4th Amendment in domestic military operations.
Another body of secret law involves the Foreign Intelligence Surveillance Act (FISA). In 1978, Congress created the special FISA court to review the government’s requests for wiretaps in intelligence investigations, which is — and should be — done behind closed doors. But with changes in technology and with this administration’s efforts to expand its surveillance powers, the court today is doing more than just reviewing warrant applications. It is issuing important interpretations of FISA that have effectively made new law.
These interpretations deeply affect Americans’ privacy rights, and yet Americans don’t know about them because they are not allowed to see them. Very few members of Congress have been allowed to see them either. When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is.
The code of secrecy also extends to yet another body of law: changes to executive orders. The administration takes the position that a president can “waive” or “modify” a published executive order without any public notice — simply by not following it. It’s every president’s prerogative to change an executive order, but doing so without public notice works a secret change in the law. And, because the published order stays on the books, Congress and the public have no idea that it’s no longer in effect. We don’t know how many of these covert changes have been made by this administration or, for that matter, by past administrations.
No one questions the need for the government to protect information about intelligence sources and methods, troop movements or weapons systems. But there’s a big difference between withholding information about military or intelligence operations from the public and withholding the law that governs the executive branch. Keeping the law secret doesn’t enhance national security, but it does give the government free rein to operate without oversight or accountability. Even the congressional intelligence committees, which are supposed to oversee the intelligence community, have been denied access to some of these legal opinions.
Congress should pass legislation to require the administration to alert Congress when the law created by Justice Department opinions ignores or even violates the laws passed by Congress, and to require public notice when it is waiving or modifying a published executive order. Congress and the public shouldn’t have to wonder whether the executive branch is following the laws that are on the books or some other, secret law.
Sen. Russ Feingold (D-Wis.) is a member of the Senate Intelligence and Judiciary committees.
Copyright 2008 Los Angeles Times
Didn’t the founding fathers intend that ALL senators defend the constitution the way Feingold does ?
Feingold is one of the few senators that does not enable the administrative branch to abuse the constitution.
Questions arise as to what the Bush administration will do with these documents before they are out of office? They obviously don’t want anyone to see them because it will only prove criminal intent for which they could be prosecuted. So will they destroy everything, and claim it was because of some malfunction?? The malfunction, however, is obviously our own corrupt government — not the equipment with which they work.
Makes you wonder what was in the ‘missing’ e-mails in runup to war.
keep your powder dry, these bums will not leave office 20 Jan 09 without a fight
NancyH: They are already destroying records. “lost” e-mails, fire in Cheney’s office, teleco immunity that makes it impossible to find out what, who, or why they have been illegally spying on ALL Americans.
Kudos to Russ.
One thing that has always bothered me: Schrub’s first act as preznit was to seal the presidential records of his dear ol’ dad. His very FIRST act. There is something in those presidential records that we need very much to know. Just because he wants to keep it secret tells me there is a smoking gun in there somewhere.
Gawd, I don’t know how much longer I can take all this stuff!
I wonder if Vegas is giving odds on who will be president January 21st. What are the odds that W will still be there? I’d like to place a bet because the odds should be astronomically high right?
Rebel Farmer says:
“Gawd, I don’t know how much longer I can take all this stuff!”
I wonder about that too for myself and some of the rest of us. The answer, of course, is we can and will “take it” until we elect something else. Russ Feingold is one example of the Democrats we need and ought to be able to find more of. So is Obama, by the way.
No to Obama (see above)…
Let’s be creative! Why not have a MOCK TRIAL of the criminal Bush administration! If enough people participate, or if we had these trials all over the U.S. (I live in Boston, we could have mock trials everywhere in the U.S.) - if enough people participated, we could get media coverage, and make the case our media and Democrats refuse to make - we could WAKE PEOPLE UP! Let’s just do it!! Where and when, I’ll be there!!
DD: What makes you think that this election won’t be stolen/rigged like the last 4? I’m not convinced that there will even be an election, let alone an inauguration in January. I’m not will “to take” it by waiting for November. Another election cycle is not going to change anything. As long as impeachment is “off the table” our Constitution and our democracy is dead. The dimms are not the answer. Candidate integrity is. Russ just happens to have a “D” behind his name. That letter is not what gave him the integrity that he has.
Russ Feingold,
One of the people in congress I would not want to sweep way as I feel about most. The abuses of this administration have been so crass, illegal and undermining of the very basis and tenets of the rule of law, the basis for morals and ethics preached to other nations in the world by United States.
The United States is viewed by the rest of the world as a nation of hypocrites, it is no small development in the rise of power, wealth and influence of the US in world affairs. People who write here represent a small number of people rightfully sickened by this development. The belief many of us who fought for and believed in the ideals of this fledgling democracy have been trampled upon.
We feel abused to be considered part of this travesty, so many of us believed this experiment could work and were proud of the the roll the USA played in world affairs. This has been swept under foot by the lawless, rude, executive branch of American goverment, that for all intents and purposes unfortunately represents everyone.
This political race is as hotly contended as it is because the American people want this country to be restored to the place of respect it was once held. Barak is the hope of many that respect and rule of law will once again be restored it is one of the reasons he will be elected.
Feingold and a few others in congress represent that place like Kucinich, Ron Paul, Chriss Dodd, and others. Unlike Clinton and to his credit Obama displays a higher level of decency that Americans want to see once again. Clinton will not be elected because she and her husband showed themselves to be liars and opportunists they are, power at any cost. Their credo, victory at any price regardless of who falls. For those who talk about experience let us be reminded of the experience of George W. Bush and the results of his presidency.
Thank you Mr. feingold.
Rebel Farmer:
What in the world happened to your post: “Gawd, I don’t know how much longer I can take all this stuff!” ?
We either elect our way out of what we have loathed so much, or we wring our hands and accept defeat. As for Feingold not being a real “dimm”, him being some sort of integrity-man hero who isn’t a dirty dumb “D”—–NONSENSE!
Feingold is an actual Democrat and there are plenty more coming from where he comes from. We just need to find and elect them. Obama may even be a long-term magnet to attract them.
it is a basic tenet of the Anglo-Saxon legal tradition that there is no law without its publication. a once proud nation.
Russ, my trust and faith in the US government to do the right thing and justice prevail is gone. Whatever these cretins are up to, it is not the people’s interest and never was to begin with. The 1st 8 months of bush’s administration was probably just a quiet placement of key loyalists throughout the dept of justice to overthrow the justice system. The story of 911 is BS, pure and steaming. The only power I have is to buy precious metals, which I already have with what I can afford, and wait for the other jack boot of this administration to drop on America’s throat. The military will be turned loose on the people of the US when that 2nd jack boot (economic) drops, the 1st jack boot was 911.
It would be really neat if I was wrong but given the track record of congress’ impotence since Jan 2007 and seeming utter lack of understanding, capability or interest in serving the people’s interest…my statistical probability of being wrong is very low….like my hope for America, as I once believed it stood for. All I see are war criminals with unfettered power diligently seeking to overthrow the system of government and justice the US once had.
I think that the notion of ’secret’ laws based on national security should be revisited. Further, it strikes me as unconstitutional that the Executive Branch is allowed to create law in the first place. I thought that was under the provence of the Legislative Branch.
They want to put the 10 commandments in government buildings, then they want to say that the one about killing people is optional. Then they don’t want to put the Sermon the Mount in government buildings because those are the teachings of Jesus and that is, what, too controversial? Going around saying stuff like “blessed are the peacemakers” just doesn’t go over too good in the Pentagon.
Hold on a damn second - since when can anyone other than Congress pass a law? Since when can, say, a sick, twisted moron President “hire” a cult member with a degree who can then write whatever the hell he/she wants - and it’s a f**king law?
This is still The United States of America, right? RIGHT?
What happened to this: “The fact that a proposal cannot become a law without consideration and approval by both Houses of Congress is an outstanding virtue of our bicameral legislative system.”
Yet, according to Sen RF, the President could tell a minion to write an opinion that states, maybe, all black people can be pulled over and beaten without probable cause - and it’s suddenly the law of the f**king land?
Since. F**king. When.?
I find it curious that whenever a concrete suggestion is made on here it is completely ignored! Instead, you opt to prove how intelligent you are with righteous anger, but no actions to actually change anything. It’s fine to be angry but it really does have to be backed up with actions. I suspect people read and post without reading the other posts!
By these laws being created and held in secrecy, we have no way to determine which came first, kind of like the chicken or the egg question. There’s nothing keeping them from creating “laws” after the fact to cover their criminal actions.
SCREW YOO!
Rich Griffin: Your idea of mock trials is not a bad one… though I doubt you’d get anything more than a couple of lines in the “news briefs” on page 24 of the local rag. This has been done a few times before, with little notice. Here’s some examples:
http://www.youtube.com/watch?v=CJqkrIwgRuM
http://tinyurl.com/5tvt9y
http://tinyurl.com/5wkdu4
Rich also said: I suspect people read and post without reading the other posts!
I would agree with that assertion as well. More often than not, posts are not well thought out and full of logic holes. Either that, they are based purely on emotional response. Regardless, even simplistic debate is better than no debate.
elmysterio said: “More often than not, posts are not well thought out and full of logic holes. Either that, they are based purely on emotional response.”
Logic holes? You can’t beat the screaming fanatics on the other side with logic. You have to scream louder than they do. Much LOUDER !!!!! A**H***
!!!
As much as I respect Mr. Feingold (The Senator)’s position on this and many other issues, I lost respect for Mr. Feingold (The Man) when when he chose not to run for president. He knows as well as anyone (more than most, actually) the grave situation we’re in and is on the very short list of those who might effectively have the ability to something positive about it. That he chose to put personal convenience above civic duty makes the above just empty rhetoric.
“I study war so that my sons may study politics and science and that their sons may study art and music.” ~John Adams
Elitist bastard that he was, Adams was at least a true statesman. The same cannot be said of Russ Feingold.
The only problem I have with Mr. Feingold’s article is that it seems to end with the point that if an administration is going to ignore a law he wants to know about it(?).
I concur with RRM, Frank (and others); what about - the law is the law (as in Congress writing the law), is the law. Period.
Unfortunately, I’m left feeling that this is more fiddling while Rome burns!
Well, here is some information.
http://www.heritage.org/Research/GovernmentReform/Test032201.cfm
http://www.heritage.org/Research/LegalIssues/LM2.cfm
Those EO’s/PD’s published in the Federal Register (not all of the are) can be contested by Congress, but if they do not, it becomes law within 30 days. The last one contested was when Clinton was in office.
In 2000 Ron Paul drafted legislation over Clintons abuses.
“consideration of some of the process reforms contained in such bills as H.R. 2655, the Separation of Powers Restoration Act, which was introduced in the last Congress by Representatives Ron Paul (R-TX) and Jack Metcalf (R-WA). H.R. 2655 would have required that all presidential directives specify the constitutional and statutory basis for any action incorporated in the directive or be void as to parties outside the executive branch. With few exceptions, most recent Presidents before Clinton did cite the font of their authority in their executive directives. President Clinton cited some authority in a majority of his directives, but others were vague or had no citation of authority at all. A faithful executive should not have a problem citing the authority for his actions, and this requirement would help citizens, lawyers, and the courts evaluate new directives. Although there may be some constitutional problems with the application of this requirement in some cases, it is worth further consideration and possible refinement.
H.R. 2655 also would have attempted to expand the number of parties with standing to challenge an arguably unlawful directive, including Members of Congress, state and local officials, and any aggrieved person. Because part of the standing doctrine is constitutional, a statute could not automatically confer standing on someone without a “particularized” injury in fact. Nevertheless, the provision would potentially expand the range and number of persons who could bring suit to challenge a questionable directive by removing any statutory impediments to suit.”
Unfortunately, it does not address the secrecy issue.
I imagine that Feingold must be drafting legislation he wishes to be Passed. With Bush having months left, and it being likely a Democrat will take control of the office next year, I suspect Republicans might be the greatest supporters of this legislation. The timing is curious.
It would be interesting if someone asked Obama or Hillary what EO’s or PD’s they would repeal once elected.
Russ, you failed to stand adequately to change things. You are a part of the timid Dim’s who fight with propaganda and not nuts. Bush can’t be beat with propaganda. Now you expect us to somehow overlook your timidity and failure to act with strength. Congress is a team sport. Congress failed, you failed. Go make oatmeal for a living Russ. You are too soft for an effective Congress.
yes, andersdl, Feingold is one of the few Senators…and Obama is not included in that select group.
Russ, I thought for sure that somewhere in the constitution it says that it’s the legislature that makes laws, not the executive. Some twit working for BushCo writing a memo does not create new law.
However, when those in the legislature (like you) just let this crap happen, and indeed, when you write an article like the above *calling* said twit’s memo “law”, the line gets kinda blurred.
Grow a pair, and impeach the sons of bitches. That’s what we elected you guys and gals to do.
JERRY RIGGED: They definitely “staffed” their justice department, all right… then they rewrite laws with “legal memos” and “legal opinions” and go about as if they could disable the very law of gravity; but there IS a gravity to these kinds of amoral decisions and its boomerang may travel slowly, but it will aim at sender, be assured.
“When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is.”
How shocking!
Please tell us how many Senators actually read the Patriot Act legislation before they voted on it. Wow….talk about “broad and controversial” changes to the original intent of our Constitution!
Congress has obviously surrendered its duty of “oversite” to the executive branch which is why I now see them as nothing more than parasites or blood-suckers who are draining money from the toils of their employers - “we the people”.
I understand the fear of a mock trial being buried on page 24. I say we owe it to ourselves to try anyway. I believe it would be worth it to get coverage on Newshour, Jon Stewart/Steve Colbert, Bill Moyers’ Journal, C-Span, and with enough people involved, it will get covered! Negativity gets us nowhere and keeps us helpless - I get this way not by them but by us!! Let’s just do it!
A book I’m reading as of now is happily call, Takeover, The Return of The Imperial Presidency and the Subversion of American Democracy by Charlie Savage. Yoo pop up quite a bit. So when the it is time to hang them there more then Bush and Cheney. Add Clinton into the mix as well. They all are scum. The next book I’m reading is The Complex, How The Military Invades Our Everyday Lives By Nick Turse. This book is downright scary. You might be supporting the current and future occupations without even knowing it.
I find it interesting that so many think Bush will declare martial law and hold on to power. I really doubt it. To be president whether you are a good one or the bastard we have now is a grueling job. We see the negative effects of 8 years on Bush. As far as he is concerned I’m sure it’s MISSION ACCOMPLISHED.
“One thing that has always bothered me: Schrub’s first act as preznit was to seal the presidential records of his dear ol’ dad. His very FIRST act.”
We are really involved in an epic struggle to deny george bush his FOURTH term, and that is the gist of it.
“Congress should pass legislation to require the administration to alert Congress when the law created by Justice Department opinions ignores or even violates the laws passed by Congress…” Yes, and I’ve got a good title for the bill, “Catch-22″.
If this is the way things are, why even bother talking about the rule of law? It’s anarchy of the philosophy that the system is the enemy. Do whatever you can to beat it, and win the spoils for yourself and your kind.
(That’d be george HW bush)
Rich Griffin, I admire your frustration. Most who blog here are older people who have the time and still have the energy for frustration! I am doing it and I am making a film about all these interrelated issues. I submit the below to have you understand the different parts of the film I am working on . Its all related and complex.
The public rarely enjoins the true issues or the politicians the reasons are clear. Special interests and “free enterprise” capitalism it is what this country has devised as worth living and dying for. The basis for the consumer ideology is energy and its association with an auto centered economy closes the circle. It uses the media to direct the public flow of the so-called truth and we have a perfect example of it in this political campaign. It is why Exxon Mobile is out of control and the public is given platitudes rather than help.
The media is out of control this election has shown us just how far it has gone to dumb-down the public. The recent move by ABC to remove candidates from the debates was outrageous. They are trying to determine the fate of the country and the world being mouthpiece for special interests and the government and to silence dissent.
Media censure is unheard, the FCC should rule for the public but like the EPA its teeth are continually drawn. The media has no right to exclude any politician who is running for office as happened recently with the ABC debate. The only exclusion under the rules used by ABC should apply to a candidate not sitting in public office. The license of ABC would be lifted if the rules were changed but the congress, with the exception of a few pushes for more media conglomeration supported by special interests. I hope that someone picks up on this thought. We have seen the obsession by FOX and CNN, particularly in the form of Wolf Blitzer, and the FOX rabid journalists constantly referring to the Rev. Wright controversy.
Blitzer’s bias is clear. He is quick to use every possible negative he can against Obama from the Flag Pin to anything else he could get his mouth around. His support for Clinton has been clear and inappropriate, for CNN to call itself a “fair and balanced” news network. I quote Mr. Nichols: ” The media pretense of being a fly on the wall has often been preposterous. In the real world of politics — where power brokers and manipulators proceed with the cynical axiom that perception is reality — the fly on the wall is the wall. The political press corps is not observing reality as much as redefining it while obstructing outlooks and constraining public perceptions.”
As usual, few are able to see the stampede of the public sheep created by media. I support the change that Obama represents! He is intelligent and wants America once again to be looked upon as a great nation that it could still be and once was. The present “lack of experience” cry of Clinton is preposterous. Could anyone having been near the White house as long as Bush done as badly for the USA? There is experience! However, the discovery of a job approval rating for him at about 28% of the American people speaks volumes about experience. No one could have been as bad as the Bush team! There is experience!
A flight from entrenched American politics is necessary . . .it has ruined this country and made greed the single value of importance. The young people once again embrace hope as a result of the Obama campaign. The Hillary political group and entrenched politics have virtually destroyed America with its policies and exclusive power clubs. She has believed this form government is America.
Clinton recently morphed to the Obama populist message, it was called, “finding her voice” while at the beginning of her stump showing her Madeline Albright, bomb the children image. Can anyone truly think that change is unnecessary? I guess not since all the politicos have adopted his message including McCain? The mistakes that Obama may make as president cannot be greater than those of the past seven years. It is also necessary to give him a democratic congress to make certain that the programs that Americans want can be enacted.
Mr. Gore Vidal, has pointedly criticized mainstream media as one of the major problems, and what is wrong with the USA. The corporate media conglomerates control the message and that message is perversely distorted and panders to its advertising portfolio! Wolf Blitzer one of the glaring examples of this criticism and shows clearly those distorted ideas with his reporting, which is nothing more than partially factual opinion dictated by his bosses.
He is a person who has no right to shape public opinion far from being the “fly on the wall” he espouses to be. We must remember flies morph from maggots. He displays ignorance as a virtue for the entire world to see, an example of what is considered, by many in America to be news reporting. If Blitzer were billed as a CNN commentator, at least the public would not be hoodwinked to believe his reporting to be the truth, while it is lack of concern for accuracy, rectitude and fairness to be considered to be news rather than opinion.
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The people of the USA have been so ill informed as to what a change would really do and mean to this country and the change in leadership that is necessary, they have forgotten that no one could be worse than George Bush . . . No one, not even a dogcatcher, at least the dog catcher has compassion for
Animals!
The future leaders, Obama or McCain, should discuss the problems America and the world faces. The problem of public ignorance of the issues caused by the media is serious. In the heat of elections the media panders to voter ignorance. The emphasis, as we see on nightly, so-called news, is constant repetition of candidate’s miscues. The result of the media sensationalism becomes, the wrong problem and the wrong message at a crucial time in world history. The emphasis on having the politicians address a credible platform of ideas based on an American and global interaction in the world is critical.
There is not enough time left for civilization to focus on rubbish. The energy and environmental issues for example or food and health care are the problems the media should be focusing upon. But to use the Rev, Wright issue for one week, to try and hurt the candidacy of Obama is a travesty. The issues most pressing are once again avoided, those really important issues that must be put before the congress; the environment, continued funding of Iraq, energy issues, education, health care and so many others not dealt with, all impacting upon the economy, the failure of public dialog is outrageous!
The issue of this election will impact on the environment, economy and the future of the USA as no others. Still, if more than 50% of eligible voters cast their votes it will be a miracle, as a result of regressive US election laws and media obfuscation. It is compulsory for everyone to vote in Australia it should be so in the USA as well. Few of the candidates are really talking about the major points, even those who are the most erudite. The environment in association with the economy or health care and elections reform, to name some, are kept out of public dialog as a result of the nonsense punditry hours on end. The world looks at America and its “star struck reality” in wonder.
The political discussion rests on the complete lack of talking points in isolation, such as, Clinton’s health package or the nonsense gasoline tax rebate and it’s cost, rather than what is really at stake with energy issues, human survival. The candidates for the US presidency rarely talk about the complete interrelated package of the issues combined. Obama alludes to this deficiency in the media and public issues. When he asks for this to occur it lands on deaf ears because the media and special interests do not want this to occur.
The media reduces the public debate to its most simplistic level with pundits arguing about one inconsequential issue or another rather than the truly important issues of our time. The American people are kept from hearing and understanding the relationship of the entire package of issues, which a true leader must address and deal with for the very survival of America in the world within a global economy. The costs for the war would pay for every single need from health care to American infrastructure repair and education, as well as the alleviation of world hunger and energy research this is what is what is at stake.
The media deals with Rev. Wright and American Flag lapel pins instead.
The media keeps the public dumbed down for obvious reasons they represent the moneyed people. As a result the public becomes unable to talk about moving radically toward change and the related issues affecting their very life and the future. The issues of climate change, energy issues and the global economy not only American economy is the part of the mortgage crisis created by the “free market” system. All the other issues like people losing their homes as a result of Wall Street manipulation are tied to these fundamental problems. These is the first and major issue which affects all other issues and is completely related to the economic changes which must take place.
The media board rooms instruct their so-called journalists (news/opinion readers) to stay clear of those subjects that would attack advertising, consumption, tied together in the media collusion with special interests to maintain the consumer system killing the world. Media in collusion with government does not want the change that would result in the decline of their hundreds of millions of dollars in profits.
All environmental problems are in one way or another associated with the Western world’s consumption based lifestyle led by the USA. These issues are affected by consumer advertising much of it coming from the millions spent on advertising of irrelevant product and campaign advertising. The media should be dealing with true American and global issues in this campaign affecting the very basis of the so-called American Dream, fast becoming the global nightmare. This is what the next president of the USA must address!
Bush has many hidden lies and stories within his family life. His grandfathers association with Hilter, just one of far too many, but Bush is being lead, by a special sort of People, for thier own greedy desires, and it is time we learned those truths.
These American Heros once served us all in the Military, but were silenced like so many of Bush’s secrets. Now They are speaking out to expose those Lies and to help us understand what realy lies behind BUSH’s Great dreams of War.
“Loss of the Liberty ”
http://www.brasschecktv.com/page/18.html
The Israeli Attack on the USS Liberty