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," and
"The Department of Justice is bound by the President's legal determinations."
Or, as Whitehouse rephrased in a Dec. 7, 2007, Senate speech: "I don't have to follow my own rules, and I don't have to tell you when I'm breaking them. I get to determine what my own powers are. The Department of Justice doesn't tell me what the law is. I tell the Department of Justice what the law is."
The issue arose within the context of the Protect America Act, which expands government surveillance powers and gives telecom companies legal immunity for helping. Whitehouse called it "a second-rate piece of legislation passed in a stampede in August at the behest of the Bush administration."
He pointed out that the act does not prohibit spying on Americans overseas with the exception of an executive order that permits surveillance only of Americans whom the Attorney General determines to be "agents of a foreign power."
"In other words, the only thing standing between Americans traveling overseas and government wiretap is an executive order," Whitehouse said in an April 12 speech. "An order this president, under the first legal theory I cited, claims he has no legal obligation to obey."
Whitehouse, a former US Attorney, legal counsel to Rhode Island's governor, and Rhode Island Attorney General who took office in 2006, went on to point out that Marbury vs. Madison, written by Chief Justice John Marshall in 1803, established that it is "emphatically the province and duty of the judicial department to say what the law is."
Sources: "In FISA Speech, Whitehouse sharply criticizes Bush Administration's assertion of executive power," Sheldon Whitehouse, Dec. 7, 2007; "Down the Rabbit Hole," Marcy Wheeler, The Guardian (UK), Dec. 26, 2007.
9. SOLDIERS SPEAK OUT
Hearing soldiers recount their war experiences is the closest many people come to understanding the real horror, pain, and confusion of combat. One would think that might make compelling copy or powerful footage for a news outlet. But in March, when more than 300 veterans from the wars in Iraq and Afghanistan convened for four days of public testimony on the war, they were largely ignored by the media.
Winter Soldier was designed to give soldiers a public forum to air some of the atrocities they witnessed. Originally convened by Vietnam Vets Against the War in January 1971, more than 100 Vietnam veterans and 16 civilians described their war experiences, including rapes, torture, brutalities, and killing of non-combatants. The testimony was entered into the Congressional Record, filmed, and shown at the Cannes Film Festival.
Iraq Veterans Against the War hosted the 2008 reprise of the 1971 hearings. Aaron Glantz, writing in One World, recalled testimony from former Marine Cpl. Jason Washburn, who said, "his commanders encouraged lawless behavior. 'We were encouraged to bring 'drop weapons,' or shovels. In case we accidentally shot a civilian, we could drop the weapon on the body and pretend they were an insurgent.'<0x2009>"
An investigation by Chris Hedges and Laila Al-Arian in The Nation that included interviews with 50 Iraq war veterans also revealed an overwhelming lack of training and resources, and a general disregard for the traditional rules of war.
Though most major news outlets sent staff to cover New York's Fashion Week, few made it to Silver Spring, Md. for the Winter Soldier hearings.