In the movie Animal House Faber College's shifty Dean Wormer invokes many a sleazy tactic in his quest to expel and revoke the charter of the Delta house fraternity, most famously "Double Secret Probation", a "little known codicil" in the school constitution giving the Dean unlimited power.
Though at first glance Barack Obama may seem most unlike
Dean Wormer (a very Cheney-esque character) some of his emerging executive
practices, David Swanson showed in a must-read piece in Counterpunch
might make Dean Wormer blush in their hocus pocus invocation of executive
powers to subtly increase government secrecy (beyond Bush era levels) and
undermine accountability.
Counterpunch reports
At best, Congress writes a law at the careful instruction of the president, reversing the appropriate relationship between legislators and an executive. Once a law is created by Congress, it can be altered with a signing statement, a practice Bush engaged in with great frequency and Obama used in the same manner, but less frequently, for the first five months of his presidency, after having campaigned against it.
It would be reassuring to imagine that once a law, or a portion of a law, makes it onto the books without being signing statemented, it is then safely and securely a law. Alas, this is not the case. The president can ask the OLC to write a memo, publicly or in secret, declaring blatant violation of a law to be legal. Or a president can simply violate the law without a word of justification. It is to these two alternatives that President Obama began resorting just as his use of signing statements began to face objections from Congress and the public. From day one he also made laws with executive orders.
Obama has created a modified version of the simply-commit-crimes approach by arguing that he can silently rely on previous signing statements by himself or Bush without repeating anything in a new signing statement. This means that the series of events runs as follows: Congress passes a law; the president undoes it with a signing statement; Congress passes the same law again; the president silently considers the law meaningless; Congress erroneously assumes the new law is law.
But, what happens if Congress passes a law and no previous signing statement or other decree has dealt with it. What can a president do (other than veto the bill or sign and obey it)? Obama has chosen to ask the OLC to write memos. Remember, this is the same office that claimed the power to legalize aggressive wars and torture in secret memos that were (are) treated as law. President Obama has publicly forbidden the prosecution of these crimes, and has kept the Justice Department's own report on the matter secret for another year.
Obama has created other new techniques as well, such as undoing our laws banning torture by declaring his own ability to ban, and therefore un-ban, torture. Meanwhile he's forbidden the prosecution for torture of anyone in the federal government except those who may have strayed from the sadistic formulae of the secret memos, thereby strengthening their importance. He's also perfected the approach of announcing one's illegal powers in important speeches, including claiming the power to launch illegal wars in a Nobel Peace Prize acceptance speech, and tossing out habeas corpus in front of the U.S. Constitution at the National Archives.
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