Rolling in the Deep State
by digby
Marcy Wheeler has an important piece up at Salon on an issue which all of you who think that “oversight” is the answer to our dilemmas about unconstitutional spying and surveillance:
A presidential order that governs the bulk of the NSA’s spying (and a good deal of other agencies’ spying), Executive Order 12333 has gotten a lot of attention lately. In July, a former State Department official, John Napier Tye, laid out how the order can be abused to permit the government to spy on Americans’ communications collected overseas. More recently, coverage of documents obtained under an ACLU FOIA have introduced new people to the order.
In addition to describing the structure of the intelligence community and prohibiting assassinations, the EO lays out some limits on the spying intelligence agencies can do on Americans.
But there’s something missing from this recent discussion. Indeed, it is missing even from the government’s response to ACLU’s FOIA, even though it probably shouldn’t be.
On December 7, 2007, Senator Sheldon Whitehouse took to the Senate floor to read out language he got declassified from DOJ Office of Legal Counsel opinions that had authorized President Bush’s illegal wiretap program. “An executive order cannot limit a President,” Whitehouse read from his declassified language. ”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.”
In short, if the President does something (or orders something done) that is prohibited by his own Executive Order, no biggie. He can do that if he wants. Without even changing the language in the order!
This is the common understanding of this tremendously powerful document which governs a huge amount of our intelligence gathering. In other words, if the president does it it’s not illegal.
This is, to say the least, problematic. Even if you have full trust in your president whether it be Obama or Bush or Saint Ronald Reagan, there will always be someone new in the office someday who is not the angel your preferred president is. And then what?
This has been one of the guiding legal documents of the Deep State for many, many years. And it might as well be written on kleenex.
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