Justice Department says legal opinion on Executive orders is classified
John Byrne
Published: Wednesday March 12, 2008

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Refuses to provide legal opinions on executive power

The Bush Administration's Justice Department's Office of Legal Counsel is refusing to turn over a document providing its analysis of Bush's justification for executive orders.

Responding to a Freedom of Information Act request from the Federation of American Scientists, the office said the document was "classified."

Steven Aftergood, who writes the Secrecy News blog for the Federation, requested the legal opinion after a Democratic senator referenced it on the Senate floor.

Sen. Sheldon Whitehouse (D-RI), the freshman senator who ousted Sen. Lincoln Chafee (R-RI) in 2006, said he'd reviewed three documents that outlined Justice Department opinions.

"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," Whitehouse said in a Dec. 7, 2007 floor statement. "This is an administration that hates answering to an American court, that wants to grade its own exams, 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 secret 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," he continued.

Whitehouse gave two examples from the documents he read:

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.

In other words, the president can decide whether his own interpretation of the law is lawful.

"We requested a copy of that seemingly innocuous, if questionable, opinion under the Freedom of Information Act," Aftergood wrote at Secrecy News. "But the request was denied."

Aftergood only requested the documents relating to executive orders, not those directly related to the Foreign Intelligence Surveillance Act.

Aftergood's request, along with the Office of Legal Counsel's response, can be read in PDF format here.