Department Of Irony: Lawlessness On Law Day

( – promoted by buhdydharma )

cross posted from The Dream Antilles

Today, May 1, 2008, in addition to everything else is Law Day in the United States:

Fifty years ago President Eisenhower proclaimed the first Law Day a “day of national dedication to the principle of government under law.” The ABA [the American Bar Association] invites you to celebrate this enduring principle during the 50th anniversary of Law Day.

Law Day 2008 will explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society.

The Rule of Law.  How interesting that the Bush Administration would today inform us that one of the functions of law is to keep certain laws secret from the public.  Don’t bang your head on the desk.  You read that properly.  On Law Day the Bush Administration announced that it could enact laws and keep them a secret from you.  That’s in your very own best interest, of course.

Join me in the Irony Corner.  

Today’s New York Times reports that El Presidente doesn’t have to tell Congress about its legal arguments about torture, and El Presidente doesn’t have to tell the citizenry what Executive Orders, what laws he’s enacted:

In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.

The decision, announced at a Senate hearing where Democrats sharply criticized the administration’s secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy’s panel.

In other words, members of Congress, according to the Administration, might not be shown all of the legal opinions El Presidente relies upon to justify torture, some of them might just have to be kept secret from Congress.

But that’s not the ironic part, that the Government thinks the Senate and House cannot be told the legal arguments for its policies even though the Senators and House Members have security clearances.  No.  Later in the story is the part channeled directly from Bizarro world.  Here it is:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.

This is May 1, not April Fool’s Day.  Elwood is not kidding.  In other words, those Executive Orders you can read in the Federal Register that tell you what the law is, well, they might not be the law after all, because El Presidente can ignore or modify existing executive orders and then — this is the most bizarre part–  not tell you or anybody else outside the Government about it.

That’s called “secret laws,” laws that are, well, secrets from us.

According to the Times, Senator Russ Feingold accused the administration of a “sinister trend” of promoting “secret law.”  Feingold said:

“It is a basic tenet of democracy that the people have a right to know the law,” Mr. Feingold said.

I bet you thought that was how things were supposed to go, that the people have the right to know the law.  That people are supposed to know exactly what the law is.  What a radical concept.  According to Bushco, that would be simply w.r.o.n.g.:

Mr. Elwood, deputy assistant attorney general for the Office of Legal Counsel, disputed that declining to make legal opinions public created improper “secret law.” He said some legal opinions had to be kept from public release, at least for a time, because they deal with classified programs or to ensure that government lawyers can give confidential legal advice.

Ditto Executive orders.

According to the Times, Senator Sheldon Whitehouse disagreed, pointing out that the administration’s legal stance would let it secretly operate programs that are at odds with public executive orders that appeared to be in force:

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration’s contention that it can selectively modify executive orders “turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret.”

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department’s view that the president has the power to change executive orders.

Mr. Whitehouse said, “There’s an important piece missing from that, which is not telling anybody and running a program that’s completely different from the executive order.”

Of course, the “legal opinions” from the 1980’s and from 1987 aren’t printed in today’s Times, nor have they been identified elsewhere, so we cannot read them and marvel at their brilliance.  I can hardly imagine what these opinions, written during the tenure of that great Constitutionalist, Sainted Ronald Reagan actually say.

El Presidente’s response to these criticisms?

Asked about those remarks, a spokesman for the Justice Department, Brian Roehrkasse, said the president would “generally” publicly modify or revoke an executive order before directing actions that conflicted with it.

“With respect to classified programs, however,” Mr. Roehrkasse added, publicly changing an executive order might “not be in the interest of the country’s national security.” In such cases, he said, the Congressional Intelligence Committees or their leaders would be informed.

Isn’t this a wonderful way for El Presidente to mark Law Day, the day that is supposed to “explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society.”  Que ironia.