Damn, I love me some Sheldon Whitehouse. He, like, actually knows the law. And he, like, is willing to actually read the stuff he is exercising oversight over.

Which is why this speech he gave today is so important (link to speech; here’s a link to video). Apparently, Whitehouse actually read the OLC opinions that justified the warrantless wiretap program and continue to justify the Administration’s wiretap authority today. Then, Whitehouse got the key concepts of some of those opinions declassified. Here’s his description of what he found.

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program. As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on. 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. [my emphasis]

I noticed Whitehouse sniffing around the question of Executive Orders before. I thought (okay, hoped, really) that he was sniffing around 13292, which governs classification and declassification, including whether the Vice President can unilaterally declassify the identity of a CIA NOC. But it turns out he was sniffing around EO 12333, which governs Intelligence Activities (and though it’s not central to this discussion, here’s an amendment Bush made in 2004 to set up DNI).

Here’s what–according to Whitehouse, who after all ought to know–Bush believes about whether or not he has to follow EO 12333, an Executive Order signed by Saint Reagan.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever. The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says. But what does this administration say about executive orders? 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. “Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.” So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing. That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.

I’ll put the rest of the excerpt of Whitehouse’s speech below. But for now, I want to discuss this.

Obviously, the implications of this OLC opinion go far beyond the warrantless wiretapping of Americans. While it appears that Whitehouse wasn’t primarily interested in EO 13292, presumably the OLC opinion governs all Executive Orders. So in other words, the President can declassify at will (well, he could do that anyway). Or more importantly, he could authorize his Vice President to refuse to tell us about his classification and declassification guidelines (as Dick did to ISOO–I’m betting this opinion is why AGAG refused to rule on the ISOO/Dick dispute), and he can unilaterally declassify anything and leak it to Judy Miller or some other hack journalist.

But here’s the other key point (and one of the reasons I like the way Whitehouse works). He specifically asked Michael Mukasey about EOs before Mukasey was approved.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order? ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. “Of course the President can’t violate his own EOs! He would need to change them first!”

And now the AG is on record as thinking this whole state of affairs stinks.

Here’s Whitehouse’s speech in it’s entirety. And here’s a link to a copy at his website.