a friend sent a raft of links my way the other night. the
accompanying message made it clear he was pretty upset with the
things he'd discovered. as i read through the linked articles, i
started feeling uneasy myself.
>>For Immediate Release
Office of the Press Secretary
July 17, 2007
Executive Order: Blocking Property of Certain Persons Who Threaten
Stabilization Efforts in Iraq
... Section 1. (a) Except to the extent provided in section 203(b)
(1), (3), and (4) of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)), or
in regulations, orders, directives, or licenses that may be issued
pursuant to this order, and notwithstanding any contract entered into
or any license or permit granted prior to the date of this order, all
property and interests in property of the following persons, that are
in the United States, that hereafter come within the United States,
or that are or hereafter come within the possession or control of
United States persons, are blocked and may not be transferred, paid,
exported, withdrawn, or otherwise dealt in: any person determined by
the Secretary of the Treasury, in consultation with the Secretary of
State and the Secretary of Defense,
(i) to have committed, or to pose a significant risk of committing,
an act or acts of violence that have the purpose or effect of:
(A) threatening the peace or stability of Iraq or the Government of
Iraq; or
(B) undermining efforts to promote economic reconstruction and
political reform in Iraq or to provide humanitarian assistance to the
Iraqi people;
(ii) to have materially assisted, sponsored, or provided financial,
material, logistical, or technical support for, or goods or services
in support of, such an act or acts of violence or any person whose
property and interests in property are blocked pursuant to this
order; or
(iii) to be owned or controlled by, or to have acted or purported to
act for or on behalf of, directly or indirectly, any person whose
property and interests in property are blocked pursuant to this order.<<
http://dneiwert.blogspot.com/2007/07/are-we-there-yet.html
dave neiwert blogs:
>>It's that B clause that concerns me -- and should concern all of
us who blog, comment, organize, write letters, and otherwise exercise
our rights to agitate against this unholy war. "Undermining the
efforts" is a term that can be defined very, very broadly. And since
those of us opposing this war have been told repeatedly, from the
beginning, that our efforts to change our fellow citizens' minds were
in fact treasonous acts that undermined the war effort, emboldened
America's enemies, and harmed our troops, it's not unreasonable to
believe that those warnings are now being backed up by official
action. "At risk of committing significant acts of violence" is more
overbroad weasel-speak: How many of us have said things that could be
construed (at least by the certifiable paranoids in the White House)
as a threat of violence against the Bush Administration?<<
i'm tempted to say that neiwert is a bit paranoid himself. one could
argue that this executive order is directed at extra-national parties
who attempt to interfere directly in iraq. however, neiwert is
correct in pointing out that the language is broad enough to make
pretty much anyone's life a living hell, should the powers that be so
decree. if that's not enough to give one pause...
>>Bush administration officials unveiled a bold new assertion of
executive authority yesterday in the dispute over the firing of nine
U.S. attorneys, saying that the Justice Department will never be
allowed to pursue contempt charges initiated by Congress against
White House officials once the president has invoked executive
privilege.
The position presents serious legal and political obstacles for
congressional Democrats, who have begun laying the groundwork for
contempt proceedings against current and former White House officials
in order to pry loose information about the dismissals....
But administration officials argued yesterday that Congress has no
power to force a U.S. attorney to pursue contempt charges in cases,
such as the prosecutor firings, in which the president has declared
that testimony or documents are protected from release by executive
privilege. Officials pointed to a Justice Department legal opinion
during the Reagan administration, which made the same argument in a
case that was never resolved by the courts.<<
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/19/
AR2007071902625.html
but the grasping doesn't end with claims of executive privilege. a
strange, twisted concept of the executive branch's powers, called the
unitary executive theory, has been creeping into public discussion
recently. i first encountered it a couple of years ago in a New York
Review of Books article. according to that writer, the unitary
executive theory is based partly on the presidential oath of office.
the oath, in case you are wondering, gives no hint of bestowing para-
constitutional powers on the president, but there's more to it than
that:
>>Here, finally, is a very good example of the much misunderstood
and misapplied concept of the unitary executive.
The Vesting Clause of Article II states "The executive Power shall be
vested in a President of the United States of America" and the Take
Care Clause states that ""The President shall take care that the laws
be faithfully executed..."
In sum, Article II vests all executive power in the elected President
including the most basic executive power of enforcement of laws.
Consequently, proponents of the Unitary Executive theory would argue
that Congress may not deputize a portion of the Executive, say a US
Attorney, to act against the President in Constitutional separation
of powers matters such as assertions of executive privilege.
Congress' remedy is to go to the judiciary and have it determine if
Executive Privilege extends to these congressional demands for
information. If the President disobeys a judicial order to disclose
the information, then impeachment is the final remedy. In neither
case does Congress have the power to deputize the President's
subordinates to carry out the functions of the judiciary or Congress
itself.<<
that's from the comments section following this balkin.blogspot post:
>>Why the U.S. Attorney Will Not Prosecute Harriet Miers
Marty Lederman
A couple of weeks ago, I published a post explaining the different
methods Congress theoretically could use to enforce its subpoenas
against witnesses who assert executive privilege. As I noted, as far
as federal statutory law is concerned, contempt of Congress should be
treated the same way as any other federal crime -- federal
prosecutors would prosecute such offenses. In particular, the House
that has voted for contempt can certify that fact to the United
States Attorney for the District of Columbia, "whose duty it shall be
to bring the matter before the grand jury for its action." 2 U.S.C. 194.
As I explained, however, the problem with resort to this ordinary
course in these cases (e.g., Miers, Bolton) is that the (Acting)
Attorney General will almost certainly instruct the U.S. Attorney not
to prosecute the action, or even to present the case to the grand
jury, notwithstanding the "duty" imposed by statute:
How can the Attorney General issue such an order? Well, when a
similar crisis arose in the mid-1980's (relating to contempt against
EPA Administrator Anne Gorsuch), the Office of Legal Counsel issued
an Opinion concluding that the statute is unconstitutional to the
extent it requires a U.S. Attorney to prosecute a contempt action
where the noncompliance is based on the President's assertion of
executive privilege: In OLC's view, a U.S. Attorney thus "is not
required to refer a contempt citation in these circumstances to a
grand jury or otherwise to prosecute an Executive Branch official who
is carrying out the President's [executive privilege] instruction." 8
Op. O.L.C. 101, 102.<<
http://balkin.blogspot.com/2007/07/why-us-attorney-will-not-
prosecute.html
perhaps congress cannot coerce a member of the executive branch to
act contrary to the interests of the president. but that's nothing
compared to the following power claimed by the executive branch:
>>The National Security and Homeland Security Presidential Directive
(National Security Presidential Directive NSPD-51/Homeland Security
Presidential Directive HSPD-20), signed by United States President
George W. Bush on May 4, 2007, is a Presidential Directive which
specifies the procedures for continuity of the federal government in
the event of a "catastrophic emergency." Such an emergency is
construed as "any incident, regardless of location, that results in
extraordinary levels of mass casualties, damage, or disruption
severely affecting the U.S. population, infrastructure, environment,
economy, or government functions."...
The directive specifies that, following such an emergency, an
"Enduring Constitutional Government," comprising "a cooperative
effort among the executive, legislative, and judicial branches of the
Federal Government," coordinated by the President of the United
States, will take the place of the nation's regular government,
presumably without the oversight of Congress[1]. Conservative
activist Jerome Corsi and Marjorie Cohn of the National Lawyers Guild
have interpreted this as a break from Constitutional law in that the
three branches of government are equal, with no single branch
coordinating the others.<<
so, we have the extraordinary claim that one's possessions can be
seized for "undermining" the war effort in iraq, combined with
BushCo's ceaseless efforts to block congressional oversight of its
dealings, and finally a directive that states the executive can
assume control of all three branches of government in the event of a
crisis...
x
