U.S. Constitution: Infected by Addington's Disease?

From our former conversation group, this gentleman is a minister who specializes now in arbitration....

Les Aaron






THE HIDDEN POWER
by JANE MAYER
The legal mind behind the White House’s war on terror.
Issue of 2006-07-03
Posted 2006-06-26



On December 18th, Colin Powell, the former Secretary of State, joined other prominent Washington figures at FedEx Field, the Redskins’ stadium, in a skybox belonging to the team’s owner. During the game, between the Redskins and the Dallas Cowboys, Powell spoke of a recent report in the Times which revealed that President Bush, in his pursuit of terrorists, had secretly authorized the National Security Agency to eavesdrop on American citizens without first obtaining a warrant from the Foreign Intelligence Surveillance Court, as required by federal law. This requirement, which was instituted by Congress in 1978, after the Watergate scandal, was designed to protect civil liberties and curb abuses of executive power, such as Nixon’s secret monitoring of political opponents and the F.B.I.’s eavesdropping on Martin Luther King, Jr. Nixon had claimed that as President he had the “inherent authority” to spy on people his Administration deemed enemies, such as the anti-Vietnam War activist Daniel Ellsberg. Both Nixon and the institution of the Presidency had paid a high price for this assumption. But, according to the Times, since 2002 the legal checks that Congress constructed to insure that no President would repeat Nixon’s actions had been secretly ignored.

According to someone who knows Powell, his comment about the article was terse. “It’s Addington,” he said. “He doesn’t care about the Constitution.” Powell was referring to David S. Addington, Vice-President Cheney’s chief of staff and his longtime principal legal adviser. Powell’s office says that he does not recall making the statement. But his former top aide, Lawrence Wilkerson, confirms that he and Powell shared this opinion of Addington.

Most Americans, even those who follow politics closely, have probably never heard of Addington. But current and former Administration officials say that he has played a central role in shaping the Administration’s legal strategy for the war on terror. Known as the New Paradigm, this strategy rests on a reading of the Constitution that few legal scholars share—namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside. A former high-ranking Administration lawyer who worked extensively on national-security issues said that the Administration’s legal positions were, to a remarkable degree, “all Addington.” Another lawyer, Richard L. Shiffrin, who until 2003 was the Pentagon’s deputy general counsel for intelligence, said that Addington was “an unopposable force.”

The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants’ rights, were deemed too cumbersome. Instead, the President authorized a system of detention and interrogation that operated outside the international standards for the treatment of prisoners of war established by the 1949 Geneva Conventions. Terror suspects would be tried in a system of military commissions, in Guantánamo Bay, Cuba, devised by the executive branch. The Administration designated these suspects not as criminals or as prisoners of war but as “illegal enemy combatants,” whose treatment would be ultimately decided by the President. By emphasizing interrogation over due process, the government intended to preëmpt future attacks before they materialized. In November, 2001, Cheney said of the military commissions, “We think it guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve.”

Yet, almost five years later, this improvised military model, which Addington was instrumental in creating, has achieved very limited results. Not a single terror suspect has been tried before a military commission. Only ten of the more than seven hundred men who have been imprisoned at Guantánamo have been formally charged with any wrongdoing. Earlier this month, three detainees committed suicide in the camp. Germany and Denmark, along with the European Union and the United Nations Commission on Human Rights, have called for the prison to be closed, accusing the United States of violating internationally accepted standards for humane treatment and due process. The New Paradigm has also come under serious challenge from the judicial branch. Two years ago, in Rasul v. Bush, the Supreme Court ruled against the Administration’s contention that the Guantánamo prisoners were beyond the reach of the U.S. court system and could not challenge their detention. And this week the Court is expected to deliver a decision in Hamdan v. Rumsfeld, a case that questions the legality of the military commissions.

For years, Addington has carried a copy of the U.S. Constitution in his pocket; taped onto the back are photocopies of extra statutes that detail the legal procedures for Presidential succession in times of national emergency. Many constitutional experts, however, question his interpretation of the document, especially his views on Presidential power. Scott Horton, a professor at Columbia Law School, and the head of the New York Bar Association’s International Law committee, said that Addington and a small group of Administration lawyers who share his views had attempted to “overturn two centuries of jurisprudence defining the limits of the executive branch. They’ve made war a matter of dictatorial power.” The historian Arthur Schlesinger, Jr., who defined Nixon as the extreme example of Presidential overreaching in his book “The Imperial Presidency” (1973), said he believes that Bush “is more grandiose than Nixon.” As for the Administration’s legal defense of torture, which Addington played a central role in formulating, Schlesinger said, “No position taken has done more damage to the American reputation in the world—ever.”

Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisers had “staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. He’s said that there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance. If you used the President’s reasoning, you could shut down Congress for leaking too much. His war powers allow him to declare anyone an illegal combatant. All the world’s a battlefield—according to this view, he could kill someone in Lafayette Park if he wants! It’s got the sense of Louis XIV: ‘I am the State.’ ” Richard A. Epstein, a prominent libertarian law professor at the University of Chicago, said, “The President doesn’t have the power of a king, or even that of state governors. He’s subject to the laws of Congress! The Administration’s lawyers are nuts on this issue.” He warned of an impending “constitutional crisis,” because “their talk of the inherent power of the Presidency seems to be saying that the courts can’t stop them, and neither can Congress.”

The former high-ranking lawyer for the Administration, who worked closely with Addington, and who shares his political conservatism, said that, in the aftermath of September 11th, “Addington was more like Cheney’s agent than like a lawyer. A lawyer sometimes says no.” He noted, “Addington never said, ‘There is a line you can’t cross.’ ” Although the lawyer supported the President, he felt that his Administration had been led astray. “George W. Bush has been damaged by incredibly bad legal advice,” he said.



David Addington is a tall, bespectacled man of forty-nine, who has a thickening middle, a thatch of gray hair, and a trim gray beard, which gives him the look of a sea captain. He is extremely private; he keeps the door of his office locked at all times, colleagues say, because of the national-security documents in his files. He has left almost no public paper trail, and he does not speak to the press or allow photographs to be taken for news stories. (He declined repeated requests to be interviewed for this article.)

In many ways, his influence in Washington defies conventional patterns. Addington doesn’t serve the President directly. He has never run for elected office. Although he has been a government lawyer for his entire career, he has never worked in the Justice Department. He is a hawk on defense issues, but he has never served in the military.

There are various plausible explanations for Addington’s power, including the force of his intellect and his personality, and his closeness to Cheney, whose political views he clearly shares. Addington has been an ally of Cheney’s since the nineteen-eighties, and has been referred to as “Cheney’s Cheney,” or, less charitably, as “Cheney’s hit man.” Addington’s talent for bureaucratic infighting is such that some of his supporters tend to invoke, with admiration, metaphors involving knives. Juleanna Glover Weiss, Cheney’s former press secretary, said, “David is efficient, discreet, loyal, sublimely brilliant, and, as anyone who works with him knows, someone who, in a knife fight, you want covering your back.” Bradford Berenson, a former White House lawyer, said, “He’s powerful because people know he speaks for the Vice-President, and because he’s an extremely smart, creative, and aggressive public official. Some engage in bureaucratic infighting using slaps. Some use knives. David falls into the latter category. You could make the argument that there are some costs. It introduces a little fear into the policymaking process. Views might be more candidly expressed without that fear. But David is like the Marines. No better friend—no worse enemy.” People who have sparred with him agree. “He’s utterly ruthless,” Lawrence Wilkerson said. A former top national-security lawyer said, “He takes a political litmus test of everyone. If you’re not sufficiently ideological, he would cut the ground out from under you.”

Another reason for Addington’s singular role after September 11th is that he offered legal certitude at a moment of great political and legal confusion, in an Administration in which neither the President, the Vice-President, the Secretary of Defense, the Secretary of State, nor the national-security adviser was a lawyer. (In the Clinton Administration, all these posts, except for the Vice-Presidency, were held by lawyers at some point.) Neither the Attorney General, John Ashcroft, nor the White House counsel, Alberto Gonzales, had anything like Addington’s familiarity with national-security law. Moreover, Ashcroft’s relations with the White House were strained, and he was left out of the inner circle that decided the most radical legal strategies in the war on terror. Gonzales had more influence, because of his longtime ties to the President, but, as an Administration lawyer put it, “he was an empty suit. He was weak. And he doesn’t know shit about the Geneva Conventions.” Participants in meetings in the White House counsel’s office, in the days immediately after September 11th, have described Gonzales sitting in a wingback chair, asking questions, while Addington sat directly across from him and held forth. “Gonzales would call the meetings,” the former high-ranking lawyer recalled. “But Addington was always the force in the room.” Bruce Fein said that the Bush legal team was strikingly unsophisticated. “There is no one of legal stature, certainly no one like Bork, or Scalia, or Elliot Richardson, or Archibald Cox,” he said. “It’s frightening. No one knows the Constitution—certainly not Cheney.”

Conventional wisdom holds that September 11th changed everything, including the thinking of Cheney and Addington. Brent Scowcroft, the former national-security adviser, has said of Cheney that he barely recognizes the reasonable politician he knew in the past. But a close look at the twenty-year collaboration between Cheney and Addington suggests that in fact their ideology has not changed much. It seems clear that Addington was able to promote vast executive powers after September 11th in part because he and Cheney had been laying the political groundwork for years. “This preceded 9/11,” Fein, who has known both men professionally for decades, said. “I’m not saying that warrantless surveillance did. But the idea of reducing Congress to a cipher was already in play. It was Cheney and Addington’s political agenda.”

Addington’s admirers see him as a selfless patriot, a workaholic defender of a purist interpretation of Presidential power—the necessary answer to threatening times. In 1983, Steve Berry, a Republican lawyer and lobbyist in Washington, hired Addington to work with him as the legislative counsel to the House Intelligence Committee; he has been a career patron and close friend ever since. He said, “I know him well, and I know that if there’s a threat he will do everything in his power, within the law, to protect the United States.” Berry added that Addington is acutely aware of the legal tensions between liberty and security. “We fought ourselves every day about it,” he recalled. But, he said, they concluded that a “strong national security and defense” was the first priority, and that “without a strong defense, there’s not much expectation or hope of having other freedoms.” He said that there is no better defender of the country than Addington: “I’ve got a lot of respect for the guy. He’s probably the foremost expert on intelligence and national-security law in the nation right now.” Berry has a daughter who works in New York City, and he said that when he thinks of her safety he appreciates the efforts that Addington has made to strengthen the country’s security. He said, “For Dave, protecting America isn’t just a virtue. It’s a personal mission. I feel safer just knowing he’s where he is.”

Berry said of his friend, “He’s methodical, conscientious, analytical, and logical. And he’s as straight an arrow as they come.” He noted that Addington refuses to let Berry treat him to a hamburger because it might raise issues of influence-buying—instead, they split the check. Addington, he went on, has a dazzling ability to recall the past twenty-five years’ worth of intelligence and national-security legislation. For many years, he kept a vast collection of legal documents in a library in his modest brick-and-clapboard home, in Alexandria, Virginia. One evening several years ago, lightning struck a nearby power line and the house caught fire; much of the archive burned. The fire started at around nine in the evening, and Addington, typically, was still in his office. His wife, Cynthia, and their three daughters were fine, but the loss of his extraordinary collection of papers and political memorabilia, Berry said, “was very hard for him to accept. All you get in this work is memorabilia. There is no cash. But he’s the type of guy who gets psychic benefit from going to work every day, making a difference.”

Though few people doubt Addington’s knowledge of national-security law, even his admirers question his political instincts. “The only time I’ve seen him wrong is on his political judgment,” a former colleague said. “He has a tin ear for political issues. Sometimes the law says one thing, but you have to at least listen to the other side. He will cite case history, case after case. David doesn’t see why you have to compromise.” Even Berry offered a gentle criticism: “His political skills can be overshadowed by his pursuit of what he feels is legally correct.”



Addington has been a hawk on national defense since he was a teen-ager. Leonard





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