Today’s Must Read

You know those secret legal opinions by the Justice Department that tell the administration how far it can go without breaking the law? After all the hullabaloo over John Yoo’s five year-old torture authorization memo, Attorney General Michael Mukasey assured Congress that the Justice Department really was working on releasing other memos. But he made no promises.

And yesterday, during a hearing on secret law held by Sen. Russ Feingold (D-WI) before the Senate Judiciary Committee, an official from the Office of Legal Counsel promised that the Department would allow members of the intelligence committees to see them — but lawmakers won’t be able to keep paper or electronic copies. The Department says that it’s thinking really hard about whether the Senate Judiciary Committee can see them as well. For some reason, Feingold and his peers didn’t seem satisfied.

The man who was the top classification official until January of this year appeared at the hearing and testified that the Department’s decision to mark Yoo’s torture memo “secret” and keep it classified for years after it was withdrawn showed “either profound ignorance of or deep contempt for” classification rules.

But as Donald Rumsfeld put it, there are known unknowns and unknown unknowns. And with this group, it’s always a toss-up which is more worrying:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration’s legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force….

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration’s contention that it can selectively modify executive orders “turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret.”

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department’s view that the president has the power to change executive orders.

Mr. Whitehouse said, “There’s an important piece missing from that, which is not telling anybody and running a program that’s completely different from the executive order.”

Only seven more months of the Bush administration to go, and plenty more to find out.