Shall, Part Two?

by emptywheel

Back in June, I pointed out that, in case of disputes over the EO guiding classification, the head of the Information Security Oversight Office can ask the Attorney General to rule on the dispute.

This morning, when I read the famous Executive Order that Cheney claims to have exempted himself from, I noticed a key paragraph:

The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight Office, shall render an interpretation of this order with respect to any question arising in the course of its administration. [my emphasis]

You see, I'm no lawyer, but I have written enough pretty hardcore business and government documents to know there's a crucial difference between "shall" and "should." Shall is mandatory, with legal umph. Should is kind of wishy-washy, if you feel like it, ought to. So I was wondering when the Democrats were going to point out to Alberto Gonzales that he shall provide a response to Bill Leonard's request for a ruling on whether or not Cheney is, indeed, exempt from this Executive Order.

AFAIK, AGAG never got around to ruling on the dispute before he got out of Dodge (though I'm happy to be corrected if I'm wrong). Which means the dispute remains at DOJ, just waiting for some resolution, right there for a new Attorney General to resolve it.

And Bill Leonard, who valiantly tried to make Cheney follow Bush's own law, has just the month of December before his resignation goes into effect to try to get an answer to his dispute with Cheney. Curiously, none of the Senators asked Mukasey in his nomination hearings whether he might get around to answering Bill Leonard's question. Though I think I--and several other folks who hang around these parts--think that might have been the intent of this question from Sheldon Whitehouse.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

It sure seems like, if Mukasey were asked whether he thought Bush could make Cheney into a Fourth Branch in order to exempt him from normal classification laws, he might answer that Bush would have to modify his executive order requiring Cheney to abide by the same requirements for revealing how much classifying he's doing that other agencies have to.

I'm just saying...

Comments

[sojourner]

Maybe I am reaching, but there is a glaring thought that jumped up and slapped me in the face.

"The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight Office, shall render an interpretation of this order with respect to any question arising in the course of its administration."

Maybe that was why Cheney was going through such silly gyrations to set himself apart as the 4th branch of government -- if he succeeded, then regardless of what AGAG or anyone else could say, nothing would apply to him. He would not be subject to "the course of its adminstration." AGAG must have either a)chosen to ignore the request under review, or b) decided that the rules did not apply to Cheney as they are stated so there was no sense in rendering an opinion.

These people are all nut jobs...

[bmaz]

Leonard might as well go ahead and draft the followup letter with the new question the AG SHALL answer; "Is it legal for the President to issue a new order changing Cheney's status retroactively in light of the fact that Cheney's actions were, at the time committed, putative criminal acts?"

[emptywheel]

bmaz

Yeah, that's probably about right.

[justobserving]

http://www.truthout.org/docs_2006/111607A.shtml

this is good reading. McKay wrote a really long law review journal story about the attorney firing.

snip

In an upcoming issue of the Seattle University Law Review, Mckay said the firing of at least two US attorneys, David Iglesias of New Mexico, and Carol Lam of San Diego, appears to demonstrate Gonzales and top DOJ officials may have obstructed justice by interfering with public corruption cases and ongoing criminal investigations Iglesias and Lam had been involved in at the time of their dismissals.

Fired Attorneys Build Case Against Gonzales
By Jason Leopold
t r u t h o u t | Report

Friday 16 November 2007

John McKay, the former US attorney for the Western District of Washington, pieced together thousands of pages of internal Justice Department (DOJ) emails released earlier this year, reviewed public documents and pored through hundreds of pages of sworn testimony his former boss, Alberto Gonzales, gave to Congress about the firings of at least nine US attorneys last year.

McKay said evidence in the public record demonstrates the former attorney general and his underlings may well have obstructed justice.

McKay was one of the nine US attorneys fired in December 2006 for reasons that appear to be politically motivated.

In an upcoming issue of the Seattle University Law Review, Mckay said the firing of at least two US attorneys, David Iglesias of New Mexico, and Carol Lam of San Diego, appears to demonstrate Gonzales and top DOJ officials may have obstructed justice by interfering with public corruption cases and ongoing criminal investigations Iglesias and Lam had been involved in at the time of their dismissals.

[Ishmael]

There is a concept of statutory interpretation in administrative law that sometimes "shall" DOES mean "may" - an analysis is done based on the task or duty required and the parties performing it or requesting it, and the court determines whether the "shall" in the statute is a "mandatory" shall, meaning the task MUST be done, or a "directive" shall, which means do your best - usually it is used when a court wants to avoid the consequences of a failure to act resulting in a loss of jurisdiction - not that I think the great Unitary executive needs no stinkin' legal theory to tell an Agency Head to go Cheney himself, but there is always some legal basis to make a bull**** stalling argument on.

[BlueStateRedhead]

Epu'ed from Boston below.

I can be there. Can you clarify?--As before, put a link below if you're interested in get-together events associated with this.

I can only attend the afternoon session. Would be happy to loiter if such is a-breweing or as phred says, abrewsking. I look forward to meeting EW et al. How shall we identify ourselves?

[emptywheel]

BlueState

Why don't you email me your cell# at emptywheel at gmail dot com?

You can certainly introduce yourself--I look forward to meeting you. And while I probably can't do brewskies immediately after, I hope there are enough brewskies for me to catch up with you later.

[Kagro X]

bmaz: Leonard's gone.

[Kagro X]

bmaz: Leonard's gone.

[emptywheel]

Kagro

Not till the end of the year.

[Kagro X]

Place your bets about how he's spending his last couple weeks?

[Kagro X]

I mean, I don't know Bill Leonard or Michael Mukasey. But have you ever tried to get someone to return an important phone call between November 15th and January 2nd?

[phred]

BlueStateRedhead -- just left you a reply on the Boston thread below... See you tomorrow :)

[bmaz]

Kagro X - Man, I don't know; Leonard struck me as the dusty, dedicated librarian/civil service kind of guy that just might be in his office actually trying to do his job until 4:59.59 of his last day. You know, the rare type that actually thinks that is what they are supposed to do. Admittedly, I have the scant evidence of watching and evaluating him during his time in front of Congress and the same news reports we have all seen; so I may be full of it. On the other hand, it is extremely hard to find anything truly admirable anywhere near the Bush Administration and we should never forget that when evaluating what is reasonable......

[Kagro X]

One can hope, of course. But if there's no one on the other end of the phone (as is usually the case in DC between November and January, and again during August), that stick-to-it-iveness doesn't get you much.

I'm thinking Mukasey holds his breath until January and then says, "Well, nobody's asked me lately."

[bmaz]

OK. I also did not factor in the holiday void bit; you are dead on the money with that. Lawyers, judges and courts don't do diddly shit between Thanksgiving and about January 4 either; so I guess I don't have standing to rail about that.

[Jodi]

Hey, Dick Cheney can hold his breath longer than anyone else in Government. His pacemaker just slows down his heart rate to near stopping, and he will just stare down anyone that is trying to make him do something.

He will never blink, never give way, never, never, never!

Bottom line. No changes!