Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
Nat Hentoff writes of a new rationale the Bush administration is using to justify virtually unlimited authority to rewrite the law without ever telling anyone:
At this very Senate hearing, John R. Elwood, the Office of Legal Counsel's deputy assistant attorney general, provided a startling example of the Bush administration's justification for the imperious essence of secret law. As reported in the May 1 New York Times, Elwood "disclosed a previously unpublicized method to cloak government activities."The Bush administration believes, he said, "that the president could ignore or modify existing executive orders that he and other presidents have issued without disclosing the new interpretation."
Hentoff calls this "secret law" and correctly notes that it has long been the sort of thing done by communist governments, not ours.
Since 9/11, the president often says that his actions are based on legal opinions from the Justice Department, particularly from its Office of Legal Counsel. Another witness before the Senate subcommittee on the Constitution was Dawn Johnsen, former head of the Office of Legal Counsel.Concerning secret interpretations of not only executive orders but also of laws, she said the central question is:
"May the Office of Legal Counsel issue binding opinions that in essence tell the president and the executive branch that they need not comply with existing laws - and then not share those opinions, and that legal reasoning, with Congress or the American people? ... This combination - the claimed authority not to comply with the law and to do so secretly - is a terrible abuse of powers, without limits and without checks.
"It clearly is antithetical to our constitutional democracy."
He also says this is a question that we must ask of the candidates for president. Will they continue this practice or repudiate it?
Comments
Every time I think it can't get any worse...
It would be interesting for someone to compile a list of all the executive powers Old King George had, which the Founders found so objectionable, and compare them to the powers currently exercised by the US President.
Posted by: WScott | May 15, 2008 9:46 AM
The OLC has sunk to such remarkable lows in this Administration; it just kills former staffers (for example, Marty Lederman) to see it, and I don't blame them. The very agency that is supposed to be faithfully committed to the rule of law seems to have no idea what that means.
Of course what we're talking about here (Executive interpretations that are binding (are they?) within the Executive branch but not disclosed) isn't the rule of law at all. Frankly, in all my years of studying and teaching the Constitution, I'm not sure what to call it. "Secret law" is probably as good as anything, but I don't think it captures the essence of what's going on here. The notion of a "law" being secret seems incomprehensible to me. It isn't really law at all if no one (outside of, presumably, the President and a few staffers) knows what it is. The law is a set of rules that exists to establish norms of conduct; "secret law" doesn't do that. So I'm looking for a label for it, and anything that includes the term "law" in the sense I've described won't fit the bill.
Ideas?
Posted by: Dan | May 15, 2008 10:08 AM
How about "despotism"?
Posted by: Dunc | May 15, 2008 10:18 AM
Can we please impeach now?
Posted by: J-Dog | May 15, 2008 10:35 AM
I'd have to go with "rule by decree."
That pretty much covers the idea that "The law is what I say it is."
SJ
Posted by: longstreet63 | May 15, 2008 10:38 AM
Isn't World Net Daily a conservative site. How did Nat manage to infiltrate?
Posted by: sanford sklanksy | May 15, 2008 10:42 AM
J-Dog - Nope. Wiat till he's out of office, then arrest him. He'll have no executive protection and it won't hand the WH to Mayor McChees - :) DJ
Posted by: DingoJack | May 15, 2008 10:43 AM
Sanford Skanksy - He's worked there for some time, Ed reported on in a while back - DJ
Posted by: DingoJack | May 15, 2008 10:47 AM
Snford - 1st Feb 2008, to be exact, is when Ed report it. Cheers DJ
Posted by: DingoJack | May 15, 2008 10:54 AM
I think that now that we have got our own Star Chamber and rule by decree, Godwin's law has ceased to apply. They are what they do.
Posted by: kehrsam | May 15, 2008 11:04 AM
Posted by: Bill Poser | May 15, 2008 11:41 AM
We're all on double secret probation now.
Posted by: QrazyQat | May 15, 2008 12:44 PM
When I was a senior in high school many years ago, my history class taught about the "evils of Russia and the communist state", and how the good old USA is morally and ethically superior because we have the Constitution and such abuses could NEVER happen here.
Fast forward to the Bush administration, secret laws, torture, removal of .Habeas corpus.
Posted by: RAM | May 15, 2008 12:45 PM
Every time I think it can't get any worse...
It would be interesting for someone to compile a list of all the executive powers Old King George had, which the Founders found so objectionable, and compare them to the powers currently exercised by the US President
Federalist Paper 70 deals with this exact issue and the debate at the time about how much power the Executive should have and the balance between not being able to get anything done and giving too much power. The debate must have been interesting judging from the Federalist Papers. I would say for sure that the vast majority back then would puke now if they saw how much we resemble what they hated. It makes you wonder why they had to die for freedom just for us to piss it away.
Posted by: King of Ireland | May 15, 2008 1:03 PM
>> Isn't World Net Daily a conservative site. How did Nat manage to infiltrate? >>
Sanford, just because WorldNetDaily is conservative doesn't mean that they love Bush. There is ALWAYS plenty of things critical of the current Republican establishment on that site. The truth is that Bush is not a true conservative. This article is proof of that. In this respect, he is closer to a dictator than a true chief executive because he uses authority in an arbitrary fashion. I agree with Ed that the current candidates need to be asked some hard questions on whether they intend to conduct their affairs the same way should they end up in office. I suspect that all three of the current candidates are more than willing to do exactly what Bush has been doing - and that is the reason that I refuse to vote for any of them.
Posted by: mroberts | May 15, 2008 3:06 PM
mroberts i am curious
McCain I believe to be a pawn for the Rep party, so I'll agree.
HRC already admitted, forgot where, don't care, that she will do anything to get in office, translates to me anything for power, so i agree
Obama i have not seen any proof of this, could you explain why you feel this way?
Posted by: mmeasor | May 15, 2008 4:12 PM
Sorry, mroberts, but Bush is a conservative. He was nominated by the conservatives, all conservatives voted for him in 2000 and 2004, he has been supported by the conservatives ever since, he is still being supported by the conservatives. Maybe you see yourself as conservative and have your own set of criteria of what a conservative is, but do not say "Bush is not a true conservative." Bush is conservative - he is not liberal, he is not moderate, he is not radical. That leaves him as conservative.
Posted by: BC | May 15, 2008 4:18 PM
"The truth is that Bush is not a true conservative"
This all sounds strangely like Animal Farm to me... except even those pigs kept the list out in the open when they were ammending it...
Posted by: kodiak | May 15, 2008 4:28 PM
bah, it managed to mangle part of my comment since i used an html-like expression, so here's the corrected version:
"The truth is that Bush is not a true conservative"
The "no true scotsman" fallacy in action! Please read up on that before you jump in with it again... 'cause he ran and was elected as a conservative with narry a peep from anyone in the party. 8 years later you can't turn around and say he's not.
Posted by: kodiak | May 15, 2008 4:35 PM
Secret laws? This all sounds horribly familiar.
Oh, I know. Charles Stross' "The Atrocity Archives", which mentions in the story section 3 of the Official secrets act, which, unlike the other 2, is so secret you aren't allowed to tell anyone about it, and you aren't supposed to know about it unless you have signed it.
Real life is as bad as fiction.
Posted by: guthrie | May 15, 2008 5:09 PM
Conservatism is traditionally in favor of limiting government. That's the reason some say Bush isn't a true conservative. Look into the difference between paleoconservatives and neoconservatives if you want to know more.
Posted by: zy | May 15, 2008 5:10 PM
I suspect that all three of the current candidates are more than willing to do exactly what Bush has been doing...
Based on what evidence?
Posted by: Raging Bee | May 15, 2008 5:44 PM
Sorry, zy, you don't get off by redefining conservatism. Bush is conservative through and through. What you get from Bush is what you get from any conservative. 'Nuff said.
Posted by: BC | May 15, 2008 5:45 PM
zy nailed it on the issue of whether or not Bush is a conservative. He does not favor limited government and has expanded government power (and spending) tremendously since he has been in office. Even his conservative social values are questionable because he only seems to bring them out around election time. Bush is NOT a true conservative. The real definition for Bush would probably more fittingly be neoconservative because he is so big-government in his views.
mmeasor, I don't trust Obama for several reasons. Number one, who is this guy? He came out of nowhere and I don't even understand how he became the candidate of choice. His track record is limited, so there is little to go on with him other than what he says - and politicians typically say anything to get elected. Most people I have asked can't even list ten concise reasons why he would be an excellent president. My biggest issue with him is that he is not a republican (note the little "r"), but a socialist. He has a bill in Congress right now that would give the UN significant powers over the United States and would have a major impact on the ability of the American people to rule themselves. He also has been very forthright about his desire to implement universal healthcare. If you study up on socialism, you find that it requires the centralization of power. For instance, when you have socialized healthcare, it is not managed by the people's representatives, but by a separate bureacracy set up as part of the universal healthcare legislation. That bureaucracy would in some part be accountable to Congress, but they would still largely be allowed to operate independently and be able to make decisions about the healthcare of the people over which we will have little say or recourse. How are we a freer people under such a system? A socialist mindset is generally comfortable with centralized, arbitrary power. Because of this, I don't believe that Obama will have too much of a problem governing using signing statements and "secret" laws like Bush. As a side note, Bush is socialist to some extent as well. The proof is in the massive expansions of government bureaucracy and spending that he has advocated. Our Founders, who were classical liberals, would never have supported what our government has become today because they believed correctly that it would endanger out liberty.
Posted by: mroberts | May 15, 2008 5:56 PM
WScott and KoI - you don't have to go to the Federalist Papers for a list - most of the abuses are right there in our old friend the Declaration of Independence...
Off the top of my head - While troops are not quartered among us, they have certainly be protected from punishment for any murders. He has deprived us in many cases from trial by a jury. he has transported us beyond seas to be tried for pretended offenses. He has refused his assent to laws [something, something] necessary for the public good.
Posted by: GeekCyclist | May 15, 2008 6:11 PM
Posted by: Ex-drone | May 15, 2008 6:47 PM
I am distinctly uncomfortable with this!
Posted by: Mary | May 15, 2008 7:11 PM
If you impeach George, Cheney becomes President. Maybe we can stomach George for a little while longer?
Posted by: Mac | May 15, 2008 7:16 PM
If you impeach George, Cheney becomes President. Maybe we can stomach George for a little while longer?
Articles can be filed for both simultaneously.
Posted by: Fay Ray | May 15, 2008 10:09 PM
MrRoberts,
I don't understand where you are coming from. Are you a libertarian, and is that what you want from the government? (honest question, I don't know where you'd classify yourself and I find self-lables more enlightening than applied lables)
Secondly, if you study other countries with "socialized" health care you can see that when that one aspect of people's lives is ensured (i.e. access to basic medical care) they have more freedom (and more available funds, as well as assistance in times of need) than those in the USA who feel tied to their jobs by their health coverage (i.e. do not want to leave because they would lose their insurance). Governments are designed to help their constituents, and I don't see how supplying health care to those who need it at a reasonable cost (cheaper than now for certain!) harms a community and I can think of many ways that it helps.
It's true that all governments incorporate those schools of thought that they feel will work for them at a given time. I don't understand how incorporating (and aking your own) on small segment of one ideology thereby destroys democracy. It hasn't in other governments, and it wouldn't in the highly individualistic USofA.
Also, what bill does Obama have in congress that would allow the UN to take over rights and responsibilities from America? Have other countries implemented this measure? What as the impact on them been?
Posted by: kodiak | May 15, 2008 10:29 PM
I have to agree with mroberts on this. Bush is just not a conservative in the context of American politics.
Posted by: DuWayne | May 15, 2008 10:44 PM
BC:
Damn straight he's radical. How much more radical can you get than this?
Posted by: Pseudonym | May 15, 2008 11:00 PM
Mr. Roberts, your ideas are sadly derived from mis-information and RNC Propaganda.
"Bush ...does not favor limited government and has expanded government power (and spending) tremendously since he has been in office."
Just like Reagan! and even Bush I..
"Even his conservative social values are questionable because he only seems to bring them out around election time."
All of the Rs pay lip service to the fundie base, but none of the cheating, stealing, closet homo Rs really believe in any of that crap. They could not care less if gays got married, but only complain because the nut cases demand it.
"Bush is NOT a true conservative." Is that like "no true scotsman?".
"Number one, who is this guy? He came out of nowhere"
1988 1st black president law review at Harvard and graduates magna cum l..
1996 elected to state senate of Illinois. so that ten years in an elected position.
My biggest issue with him is that he is not a republican ... but a socialist." and a vampire!
"He has a bill in Congress right now that would give the UN significant powers over the United States and would have a major impact on the ability of the American people to rule themselves" - this is really false and a typical RNC lie.
And all that noise about universal health care. Obama's plan does not go far enough. and so you hate medicare as well I guess?
Don't judge someone by what his fringe enemies say.
Posted by: Kevin | May 15, 2008 11:31 PM
Saying he will review Bush's executive orders and repeal unconstitiutional and unnecessary is the kind of thing that makes me feel that Obama would at least be a little different about this kind of thing. The fact that I've heard Obama and others connected with his campaign talk about wanting to increase transparency in the government multiple times makes me think it's not just BS to get elected.
As for the bill introduced into the Senate I'm assuming you mean the Global Poverty Act. I don't know much about it, but it just seems to be implementing a policy to try and reduce poverty that is consistent with UN goals. I'm not really seeing that it goes as far as you claim, though as I said I haven't had a chance to read up on this too much yet.
Posted by: mcmillan | May 15, 2008 11:39 PM
kodiak -
'cause he ran and was elected as a conservative with narry a peep from anyone in the party. 8 years later you can't turn around and say he's not.
First of all, narry a peep is a load. There were and consistently have been a lot of conservatives who have crowed loud and long that bush isn't a conservative. Second, he was not elected as a conservative, he was elected as a republican. If you want to use the conservative label, he was elected as a neoconservative.
BC -
Sorry, zy, you don't get off by redefining conservatism. Bush is conservative through and through. What you get from Bush is what you get from any conservative. 'Nuff said.
Actually, that's a load of horse shit. The bullshit that bush spews has absolutely nothing in common with anything that any conservative that I know believes in. Sure, he has the occasional traditional conservative position, but that is small comfort to conservatives who believe in keeping our noses out of other country's business, small government and fiscal responsibility. Bush has shown himself to be in polar opposition to the traditional conservative position on these. And there have been a lot of very conservative people out there who have raised serious objections, including such assholes as William F Buckley, along with countless military leaders who are not really all that liberal.
Posted by: DuWayne | May 15, 2008 11:58 PM
Well, I am not a conservative, so I only go by what the people who call themselves conservative say - and they said in 2000 and in 2004 that Bush is a conservative. I take them at their word. Just because Bush has been governing as a conservative, with a conservative Congress from Jan 2001 through Jan 2007, and it has been a monumental disaster does not mean that he's not conservative - it means that conservatism is an incompentent way to govern the United States.
Posted by: BC | May 16, 2008 1:13 AM
Well, I am not a conservative, so I only go by what the people who call themselves conservative say - and they said in 2000 and in 2004 that Bush is a conservative. I take them at their word. Just because Bush has been governing as a conservative, with a conservative Congress from Jan 2001 through Jan 2007, and it has been a monumental disaster does not mean that he's not conservative - it means that conservatism is an incompentent way to govern the United States. Another thing: the vocal opposition to Bush is not from conservatives. Those are the ones that are propping him up!
Posted by: BC | May 16, 2008 1:15 AM
"Coup d'etat" and "treason" spring to mind.
Posted by: Ed Darrell | May 16, 2008 3:05 AM
Let's see: is GWB a conservative? Hum .. let me think (tic toc) --- NOPE - he's a true blue 100% DICK-HEAD!!! Hey - shouldn't I win a prize for the right answer?
Posted by: ConcernedJoe | May 16, 2008 6:20 AM
Until the American conservatives come to a consensus as to what American conservatism is, the question "Is Bush a TRUE Conservative (TM)?" is pointless. Conservatism in America changed in 2004, when Bush was re-elected by almost wholly carrying the American conservative vote. If conservatives now want to change their minds again about what conservatism is, fine, but don't try to pull this crap that Bush wasn't a conservative. Almost all of the conservatives pulled the lever for him in '04, when they knew damn well what he was all about, and he didn't even face a half-serious challenge in the primaries.
Posted by: Shygetz | May 16, 2008 8:37 AM
mroberts -
But what about McCain's bill to allow puppy-kicking and baby-slapping? When you write a phrase like "would have a major impact on the ability of the American people to rule themselves" you better come up with some references. Otherwise everyone will know you're a lying hack.Posted by: Taz | May 16, 2008 9:17 AM
Yeah bush is not a "true" conservative. I'm guessing all the people voting for him in 2004 after he got us into 2 wars were all prissy liberal elites right? He's certainly conservative enough on one point just like every other conservative: He can't admit he was wrong.
Really, read this simple article:
http://en.wikipedia.org/wiki/No_true_Scotsman
Posted by: Coriolis | May 16, 2008 10:03 AM
I'm quite happy with the notion that President Bush is no conservative. He's not in favour of balancing the budget, reducing the number of laws, or any one of a number of other Conservative shibboleths. Unfortunately by this measure, Bush never was a conservative. Neither was Reagan. Neither was Nixon (although he came closer). Neither was Bush I. But when it comes to reducing the number of laws on the books, Bill Clinton managed it. Since World War II, the worst Democratic president has been as good at balancing the budget as the best Republican. Economic growth has consistently been better under Democratic presidents than Republican ones. I could go on.
But to sum up, it's true that Bush is a Republican president but he isn't a conservative. But that's because the Republicans have not been the party of conservatism in my lifetime (I was born shortly after Reagan was elected). The conservative party since the Reagan Revolution has been the Democratic party. So for so-called "Conservatives" to claim that Bush is no true conservative rings hollow unless they are going to support the DLC candidates.
Posted by: Francis | May 16, 2008 10:46 AM
I wonder about Obama's willingness to pursue action against the Bush administration should he become president. Less than a year ago, he opined that Bush hadn't done anything that rose to the level of an impeachable offense.
Link
There are a few good arguments against impeachment, but the idea that grave and intentional breaches of Constitutional authority have not been committed is not one of them. The most cogent argument is the political reality that it would be impossible to get a conviction in the Senate, which would create the talking point that Bush & Dick were "found innocent" forever afterward.
Posted by: Pieter B | May 16, 2008 11:09 AM
Dan: Its rule by fiat and decree. Its monarchy, plain and simple; the idea that one persons opinion can dictate the lives of everyone else in society.
Posted by: Julian | May 16, 2008 5:45 PM
oops; that should be "person's"
Posted by: Julian | May 16, 2008 5:46 PM
Bush is a conservative, it's you folks who claim he isn't that don't understand the nature of U.S. politics, though it'd be better to say that you willfully ignore it for the sake of your own self-identification.
Beyond academia, the actual definitions of "conservative" and "liberal" don't matter. To the vast majority of people who tag themselves with those labels (and libertarians, for that matter) it's nothing more than a team name. Might as well call ourselves the Blues and Greens. He's a conservative because he's part of the conservative party, and no matter how far he strays from what the "conservatives" have claimed their values to be for the last half-century, his party won't abandon him. He has strayed very far from those values, as you folks have kindly pointed out, and yet, aside for a handful of academics, the conservatives have stayed fanatically loyal to him.
The same thing goes for liberals. When Clinton was bombing Serbia and Iraq, and sending soldiers into Somalia, liberals in the United States had no problem with the idea of being militarily active overseas, whereas conservatives decried it as arrogant and wasteful. The proper response to Shrub's Iraq War is that they wanted it long before September 11th, pushed the nation into it through deception and fear-mongering, mishandled the planning, mismanaged the execution, and mis-administered the aftermath. Yet many liberals have taken the tack that intervention in itself is hubristic and amoral(the same stance conservatives took under Clinton). This has more to do with the political affiliations of Bush than with the act itself. Hillary is a perfect example of this double-thinking in her continual denunciations of Bush combined with her continued assurances that she'd be just as tough, or tougher even, foreign policy wise. No one calls her on this, of course, because the majority of the populace thinks this way. If my party does it, then its right. Reagan is an even earlier example; calling him a fiscal conservative when his admin saw such great waste in military spending and such lax tax enforcement is positively laughable.
One could also argue his conservativeness from his policy choices, the suggestion of all of which can be found easily in the writings of politically conservative academics, but that'd take forever. Heck, the writings and decisions of Scalia and Bork alone provide a wealth of justifying arguments for a despotic executive.
Posted by: Julian | May 16, 2008 6:18 PM
Julian:
Not being American, I fully admit that I don't understand the nature of US politics. However, I know how every other English-speaking country in the world uses the term "conservative", and something of what the word has historically meant in the US.
But I guess you're right. Bush is a conservative in the sense that conservatives vote for him because they think the other party is worse.
Posted by: Pseudonym | May 18, 2008 9:50 PM