L’etat, c’est moi:

After the release of the information about the CIA destroying interrogation tapes after all sorts of Congressional leaders in the know that such things existed (short answer: they knew such tortures were illegal and that the CIA and the people involved could be prosecuted, and with the tapes destroyed, who can tell who was responsible and for what?) and the people in the know told them not to – but never announced that the tapes existed – the feeling in some circles, including me, is that if those bozos can play mumbledefrack with the law, there’s a compelling case to open up your mouth and not let them get away with it.

What members who find themselves in the position Harman says she’s in — and the position that Dick Durbin, Carl Levin, and others found themselves in regarding the 2002 NIE — need to realize is that on some level acquiescence in these kind of abuses winds up legitimizing them. A member who believes he or she is in possession of evidence of crimes being committed and covered-up through illegitmate classification ought to seriously consider civil disobedience: calling a press conference, stating the facts, and accepting responsibility for the consequences. The White House could, of course, then turn around and seek to prosecute a member for violating classification laws, and the member could argue justification and we’d have it out. That’s a tough call to make, clearly. But our political leaders have responsibilities to the country and to the constitution and I’ve never seen a candidate for office say something like “I’m the one who likes to abdicate responsibility, decline to make the tough calls, and then when someone else gets to the bottom of things try to make sure that my ass was covered.”

Bush and Gonzales and other kept saying – oh, all these shady things we do, they’re all being carefully vetted and the right people are keeping an eye on what we’re doing to your civil liberties and making sure everything’s ok. No, you can’t see their orders on how things are to be done because they’re super-secret, but just Trust Us, everything’s OK. Would we lie to you?

Well, yeah. Yeah, they would.

Senator Sheldon Whitehouse, who had the right to see some of these DOJ orders, summarized them as follows:

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.

In other words, Bush gets to make the rules for himself, and nobody else has any say in the matter.

Read this item and this longer one to get a full idea of what’s involved. Please, go look.

I quote Senator Whitehouse:

In a nutshell, these three Bush administration legal propositions boil down to this:

1. 1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”
   2. “I get to determine what my own powers are.”
   3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

I don’t know about you, but that scars the hell out of me. More Whitehouse:

We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that “l’etat c’est moi” and “The King can do no wrong.” Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the “supreme leader.” Imagine a general counsel to a major U.S. corporation telling his board of directors, “in this company the counsel’s office is bound by the CEO’s legal determinations.” The board ought to throw that lawyer out – it’s malpractice, probably even unethical.

Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- “The United States Department of Justice.” Think of the heroes who have served there, and the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how that all makes you feel.

Then think about this statement:

The Department of Justice is bound by the President’s legal determinations.

If you don’t feel a difference from what you were feeling a moment ago, well, congratulations – there is probably a job for you in the Bush administration.

The mind shudders.