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June 25, 2007

Comments

I, too, would love to hear from Colin Powell.

I have to wonder about Addington, though, and your statement that he "maybe a damn good lawyer." To bend and stretch the Constitution and applicable laws to fit your client, in my opinion, makes one a part of the problem. In the final analysis, Addington needs to be held accountable for what has transpired, just like Cheney does.

My two cents' worth for the day... Great piece!

All this makes Blumenthal's recent article all the more credible. Someone's talking!

"To Whom It May Concern:

I'm against torture personally, but I'm damn good at lawyering my clients the 'ambiguous' space they need in order to torture others systematically. I'll even write the statements needed for others to sign, under their own names, including the President of the United States of America, in order to justify the Unitary Executive's inherent power of arbitrary action in superceding the Geneva Conventions.

Yours in Loyalty,


D. Addington
Lucifer, Beezelbub and Snatch, LLC"

If a lawyer defends a person knowingly performing illegal acts and continues the same with his lawyers knowledge, and the lawyer helps his client continue to break the law by parsing words and judge shopping to justify his client's illegalities, is that within the bounds of legal cannons? Thhe WH counsels are adding to the contempt many hold for lawyers. Worse, some have left the WH and are teaching! They shouldn't even be able to reproduce!

You know, I just can't shake the feeling that someone (Karl? Is that you?) is making a well-coordinated effort to throw the Shooter under the bus. An awful lot of people were willing to talk to the WaPo for this series, which strikes me as rather odd in an Administration that (supposedly) hates leaks. Couple that with the fact that Novak is saying that Bush will never pardon Libby, and you've got a recipe for a Vice-President who appears to be losing his hold on power. There are a number of people out there who could cause problems for him if they broke their silence. (The DC Madam, the guy he shot in the face, and Scooter Libby, to name a few.) We're getting awfully close to a big huge pile-on here.

Back in the summer of 2001 the San Francisco Mime Troupe traveled with a play called, I think, "1600 Transylvania Avenue". In it, Bush was portrayed as not having a clue. No surprise there. But in that play, the actor who played Cheney also played Barbara Bush. Who'da thunk then how prophetic that little piece of casting was.

Personally I get the feeling that there is a lot of endgame maneuvering going on here to constrain and handcuff the incoming Democratic Administration in 2009 - thus leaving the Cheney/Rove/Norquist Revolution in place and running. And setting up the Democratic President for a world-historical blamestorm.

Cranky

Has anyone else noticed the GAPING hole in Gelman's story -- a gaping hole known as Cheney's Chief of Staff I Lewis Libby?

Libby is not even MENTIONED in either of the first two installments....

I have the feeling that large chunks of Gelman's story are "Scooter revenge" for being left to hang out to dry....

"[addington]e doesn't have the experience to make wise judgments"

actually, it seems quite clear to me that addington's central deficiency is not experience

but

good judgment.

tautological it may be, but addington clearly does not have the judgment to make wise judgments.

you don't have to be an expert on torture to know

a)physical torture is not all that effective, something the israeli's have know for years, (and after all isn't the v-p a great friend of right wing israeli's?)

2)physical torture has a world-wide ban on it's use because doing so is to the benefit of all nations agreeing to the ban.


furthermore,

addington's notion (cf the comment about olsen) that he is just like any regular old courthouse lawyer representing a client (who happens to be the v-p) is more bunkum.

addington is not cheney's lawyer,

he is a legal adviser to the vice president of the united states.

an adviser operating at that level of government cannot a claim of "professional obligation to a client" to justify creating or supporting policy or law that will harm the nation.

addington owed cheney, and his country, a good argument, not obeisance.

all of these whispered "i really didn't think it was a good idea, but the devil made me do it" comments that are leaking into news reports

are just one extended verbal cover your ass effort,

undertaken because u.s. foreign policy (including torture) has become unpopular and has been demonstrated by events to be incompetent.

from my view, addington is a another of those perfect examples of the banality of evil:

"dude i'm sorry. it just seemed like a good idea at the time, that's all."

An ultimate cynicism is displayed in the reliance on ambiguity. None of the legal arguments is really meant to last. They're only enough to (1) keep the perpetrators out of court as long as possible, and then (2) once there, drag out the legal proceedings as long as possible, ie, until Cheney is out of office.

So what it amounts to is a sort of "kill 'em all and let God sort 'em out" philosophy of legal justification.

This is not an unsophisticated point of view. It's based on a deep understanding of the way all real-world process is, at heart, actuarial: a gamble on how long you can keep it up.

I disagree about Addington. Lawyers who respect the law tell their clients no. Happens all the time in the real world - it's never fun or pleasant and it can lose you that job, but lawyers do it so often it is unremarkable to say no.

Where Addington had "respect" involved his own personal liability issues. It is one thing to tell a CIA agent or military interrogator in an 'interpretative act' opinion that they can kidnap, murder (at least some deaths have occured as a result of these enhanced interrogation techniques - not that anyone will get life in prison for the torture death of cab drivers in Afghanistan because, after all, this is the Bush League version of the United States and the loyal Bushies are in charge of, and have been in charge of, Justice). It is quite another to run the risk of losing your own license or your own freedom by engaging in obstruction, perjury, misrepresenations to the court, etc. (IMO - that was probably the underlying issue in the Ashcroft/Comey v. Gonzales showdown at the hospital - FISA was looking to make the heads of FBI and DOJ responsible for the firewall breaches, but that's just a fwiw).

Keep in mind that someone at CIA wanted to do something that made even Yoo and Addington flinch- convincingly make someone believe they were being buried alive. Who at CIA legal signed off on that as a request do you think? Levin -who co-sponsored the DTA piece of trash - won't hold down Rizzo's nomination. After all - Congress has been willing to go further, with the MCA, than Bush's lawyers.

Bush's lawyers have known that any real lawyer would look at the torture and the detention standards at GITMO and determine many to most of those at GITMO were "protected persons" (not enemy combatants) under the COnventions and that taking them out of country was a serious breach of the Conventions, even without the torture that is a breach of law and conventions anywhere. But Congress - with no real opposition from anyone in the Democratic party leadership (including the current Presidential candidates) fell all over itself to make the kangaroo tribunals conclusive on the right to torture, and create blackholes of no consequences so that anything that is said as a limitation on torture has no meaning bc there is no way to enforce the limits; no way to prevent the torture; no way to obtain release from the torture; no accountability for the torturers; and no sunshine in any of the process.

Of course Congress will confirm Rizzo. Whatever he's done - they've willingly done worse or uselessly refused to prevent the worst. The Cheney story is an interesting summary - but the real story is how Congress and the media framed the national acceptance of putting a Dick in charge and then looking the other way. Not just the Republicans - look at how McConnell puts a roadblock anywhere he wants as minority leader and realize how truly ineffective and uncaring Dem leadership was on all these points. Listen to any of them on a Sunday talk show - even today - and find the ones who are willing to talk about the innocent people we've abused or about the depravity it takes to torture the guilty and how they failed to stand up.

The lawyers who didn't do their job should never be praised as respecting the law. You don't put your client above the law. They didn't do that because they respected the law. They did it because Congress gave them the unfettered keys to the enforcement mechanisms against lawbreaking and they gleefully realized that meant that the only thing that stood between them and no-consequences kidnap and torture was - - them.

And despite minor bickering amongst themselves, they've all really held fast, from the Comeys praising the Presidential detentions of Padilla to the Yoos opining on the President's intent on crushing a child's testicles to the Addingtons, to the Joke-Without-A-Punchline Bellingers, to the Goldsmiths with the Article 49 memos, to the Clements who - asked about the torture revelations- seemed more interested in how they could have worked a pro-torture argument into their brief if the court was going to find out about the torture anyway - - they've all held fast to the concept of the Executive Branch being above the law, as long as they get a piece of paper from DOJ first that says they are above the law.

Excellent post, and Mary's comment really cuts to the heart here.

As I said in yesterday's Cheney thread, his judgment has proved disasterous over and over and over. The man simply cannot get it right. It is clear that someone powerful (I'd believe James Baker over Karl Rove) and/or several people within the Admin who understand just how dangerous Tricky Dick II is and care at least to some extent about the country have decided to make a move. Whatever their motives, we have to build on this.

It now behooves the Dems to start taking advantage of this cover and do what they should have been doing all along--condemn this power grab in no uncertain terms. Point out how dangerous and disasterous Cheney's moves have been for the country and its position in the world.

I'll try to elaborate more later, but I see a tripartite strategy emerging here, with plenty of roles for different prople to play:

(1) Build on the exposes about Cheney. Condemn what he has done. The point here is to (a) counter the illusion of his power, (b) make it clear that many people believe what he has done in our name is unacceptable as well as unconstitutional and (c) give him more fires that need to be put out. Then multiply this strategy so that Cheney and Rove have so much to try to control that it causes them to come unravelled, or at least less successful.

(2) Launch new points of attack, specifically legal challenges. These, as I said earlier, do not need to be successful in the conventional sense; it is very productive to force prosecutors and judges to have to take part in that is a deeply cynical farce. Vaclav Havel explains how they used this strategy in Eastern Europe in an essay called "The Power of the Powerless." If nothing else, you can give to the ACLU.

(3) Not only must these ideas be discredited, but we must thoroughly vet the next crop of candidates to root out any potential Cheney acolytes or front men (Giuliani, FThomposon). And finally, is it too much to hope for some serious courage from our Dem leaders? The Pres candidates? I think Nancy Pelosi is stronger than Harry Reid, but he can be pretty stubborn too. We have to keep up pressure on them to get stronger or be replaced.

Finally, my deepest fear is that the people who are getting this out are doing so to keep Cheney from being able to launch his attack on Iran, something they know would be disasterous for the country.

okay -- i love all this, this
interplay -- obviously -- and i
have linked EW copiously on my
two meager posts on the wa po's
angler series (having read them,
but done little else, in terms of
really thinking them through)
. . .

and so, i am faced with a choice:

it is a flawless day, here -- and
both the mountain bike, and the
tennis rackets, are calling my name.

loudly -- insistently -- in fact.

so -- sorry folks -- i'll choose
the outdoors today, for tomorrow, by
noon, we will have the team-libby reply
brief in hand, and i'll need to put
in some time on it. until then, my
abiding advice is: believe every word
EW writes. . . for a river runs through hers. . .

and the river, itself -- cut by the path of
the world's great flood
-- will catch this angler.

no doubt.

p e a c e


[with obvious apologies
to norman maclean. . .]

Frank Probst...I was wondering the same thing if Rove had been involved at all in this? Maybe those emails are heating things up a bit too much for him these days? Time will tell.

pluk, good point, about that gaping hole. Cheney's Cheney dicking them over..he's learned from the master? This series so far reveals that Ole Deadyee Dick certainly has many enemies in high places these days. Will his control freak paranoia get the best of him? Wonder if this madman is down in his bunker scribbling notes fast and furious over the articles asking for staffers to look into people/things the way he did with Mr. Wilson's article, Kristof's article, and "the wife"? I don't doubt for a minute that he's plotting his revenge response. You know how obsessed he is with what is said and written about him and the administration in the media. I say look to FAux News, the WSJ, the Moonie Times, Novak, Bill Kristol and the Kagan brothers, and the Drugdico-(Politico) Cheney wing of the media for the first hints of his retaliation and pushback.

Frank and My Too Sense: Someone over at FDL suggested that this has Poppy's fingerprints on it. Trying to keep Chimpy out of trouble (and Shooter getting the blame) when it hits the fan ...

And Scotter, the right hand of Cheney, is really just the greatest guy in the world. He wouldn't hurt a fly. He loves his kids and Mary the Witch's kids.

Thank GOD that he, at least, is going to jail. May they all go to jail!

kaleidescope, you've set an image here...
"...the actor who played Cheney also played Barbara Bush"
.
I see Babs hovering over the child at a small table... g....e....o.... ....s...h, ah, that's a good boy. That's all you'll ever need to do, now go find some frogs.

Mary

My point is Addington has told Cheney no, but on issues that don't directly relate to the unitary executive. On the UE, he is a fire-breather. On mundane issues like criminal investigations, he abides by the precedents in law. The distinction is critically important to remember, because it may well be useful someday.

Or to put it another way: the jury had enough evidence to convict just based on Addington's testimony and Libby's notes--a slam dunk. We may yet be in that situation again, and it will be useful to know the ways in which Addington can be useful as a witness.

p luk

The "gaping hole" is not absolute. Libby is named in the second story, and is described third person in the first (in the Bunker). Libby may be a source for this (I doubt it). But if this is a campaign, it's pretty clearly a campaign being waged by Josh Bolten, which makes sense.

The torture continues. And on a massive scale. Bush, Cheney, the whole cabal are guilty on the face of it. Rummy refused to look at the photographs. Prima facia - that is willfull blindness.

My question is: when will Bush, Cheney et al, become aware that to travel outside the U.S. could lead to arrest, conviction and life in prison? I am guessing about 12-24 months after leaving office they never leave the U.S. again.

Then we turn up the heat of U.S. law.

Frank Probst and 'my too sense' -- count me in! It is amazing to me that so much information is suddenly available about such dark doings. Cheney has played things so close to the vest, and, based on the information in the articles, has done some pretty dastardly things that don't fit with our "American Way."

Cheney may willingly be the fall guy for all the evils of this administration. Ostensibly, he does not care what people think. His health is an issue, and I believe I read where he needs a new pacemaker that will be installed soon. How can we prosecute the "Dark Dick of Death" if he is so sick?

On the other hand, maybe someone is deliberately throwing him under the bus. But again, how can we prosecute DDD if he is so sick and frail?

We all tend to play by the rules -- except for darker forces who think the rules do not apply to them. The darker forces rely on that.

As for our Democratic friends who are worried about reelection, yes, it is important to try to maintain the head counts, but I am suspecting that it might be more important to make a very firm statement that we do not tolerate the types of activities that this vice president and others have engaged in. I suspect there will be considerably more mileage to be gained than just accepting what is. The public at large is sick and tired of this administration, and we all become guilty by association. I want to believe in "truth, justice, and the American Way" again...

Absolutely, Sojourner. We want to know someone is out there fighting for what is right. They don't have to win all the time, but they have to be willing to step up and fight. This foolishness of not introducing a bill because they can't pass it, or because the president will veto it is absurd. America love an honest brawler, and our Dems need to step up and brawl. Raise some crap, make MSM take a look. If they can't step up and swing now, when can they? To do otherwise hands the country back to dishonest people willing to brawl.

Dismayed -- I, too, get dismayed because our so-called elected representatives spend the bulk of their time not representing us -- their constituents. Instead, they are worried, from the moment they are sworn into office, about getting reelected. They forget the job they are sent up there to do.

I suspect that a lot of the attitude we see from Republicans in Congress is due to the power of the purse strings. Rove and others in the party probably use the line: "Do it as we call it and we will see to it that you get reelected." Step off of the line, and we will trash you and elect someone else.

Individually, each of these people is regarded as a forthright person, who champions their district. That is why so many get returned to Congress -- the power of the incumbency. I just have to wonder what could be accomplished if they did not spend so much time running for reelection and worrying about the money...

What commitment is it to advocate for the rule of law except where it limits his client's room for maneuver? It's as if Addington were saying that he's always faithful to his wife when he's at home.

Addington is a relentless tool, inventive, knowledgeable and arrogant in advocating his client's interest. But he has taken his lawyerly detachment from the morality of his client's acts to the typical extremes of the Bush administration. Like Gonzales but unlike Comey, he draws no distinction between his client's interests and those he has as a member of the bar or his responsibilities as a senior government official. He has turned lawyering into tobacco lobbying.

His arguments for torture operate in a vacuum that ignores how they might be used against our own men and women. His arguments for limitless executive power are purely utilitarian; he would readily reverse them if an opponent in the White House tried to use them arguments against him.

Addington is a member of the bar and a public servant, not just a hack espousing whatever argument his client pays him to advocate. In his torture memos, for example, he used ambiguity as a tool of deception: To take power where it hadn't been authorized. To hide the identity of who authorized an action others would find politically, legally or morally reprehensible. To claim that those who acted did so with a pure heart so as to avoid, delay or win legal arguments they knew would follow. This captures Cheney's behavior in a nutshell: always by stealth or intimidation; like a white shark or a cell mate, he always attacks from the rear.

I think it is very interesting how the Supremes voted 5-4 a bunch of times recently. At one point I read a review of Alito indicating his views were more idelogical than Bork's (You know signing statements and other trapings of the unitary executive. ) Scalia comes out an thinks Jack Bauer can do no wrong. Roberts with his federalist dodges and stealth history.

I wonder if these guys already have a get out of jail card.

also, does anybody wonder what interesting stuff the NSA program dug out. Can you spell B-L-A-C-K-M-A-I-L. You know politicians of both parties, judges, reports, and news media owners. I am sure a lot of these people are pissed and looking for a way for a coup-de-grace but as we say about Russert, Cheney owns em.

oh, I forgot the part where Cheney is vetting Appointments of all types especially the judges.

Jack Balkin asks the $64,000 question: why is Shrub so submissive? The sharp criticisms of Cheney's views of his own power and the Sherman-to-the-sea destruction he has wrought on the federal government are valid and overdue. Robert Kuttner raised them long ago.

But what is it in Bush that makes him cave to ALL of Cheney's demands. The WaPoo's protest to the contrary, Bush's are not the actions of a Moriarty-like mastermind; nor do they reflect the frequent agreement of like-minded peers. Cheney is overwhelmingly dominant, though all his authority is personal. Shrub is abjectly submissive, though his authority is formally, constitutionally and historically paramount. Why?

Did you ever wonder who was boffing Jeff Gannon? Someone in the WH was.

ABA Model Rule 8.4

It is professional misconduct for a lawyer to:

(a)violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b)commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c)engage in conduct involving dishonesty, fraud, deceit ore misrepresentation;

(d)engage in conduct that is prejudicial to the administration of justice;

(e)state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

DR-7-102
(a) In his representation of a client, a lawyer shall not:

(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

DR 8-101(A)(1)
A lawyer who holds public office shall not use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.

ABA Model Rule 8.2

(a) A lawyers shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a candidate for or appointment to legal office.

ABA Standard 4-3.7

(a)It is defense counsel’s duty to advise a client to comply with the law, but counsel may advise concerning the meaning, scope, and validity of the law.

(b)Defense counsel should not counsel a client in or knowingly assist a client to engage in conduct which defense counsel knows to be illegal or fraudulent but defense counsel may discuss the legal consequences of any proposed course of conduct with a client.

(c)Defense counsel should not agree in advance of the commission of a crime that he or she will serve as counsel for the defendant, except as part of a bona fide effort to determine the validity, scope, meaning, or application of the law, or where the defense is incident to a general retainer for legal services to a person or enterprise engaged in legitimate activity.

3rd Restatement of the Law: The Law Governing Lawyers

§110 Frivolous Advocacy

(1) A lawyer may not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.

§118 Falsifying or Destroying Evidence

(1)A lawyer may not falsify documents or other evidence.

(2)A lawyer may not destroy or obstruct another party’s access to documentary or other evidence when doing so would assist a client to do so.

§8 Lawyer Criminal Offenses

The Traditional and appropriate activities of a lawyer in representing a client in accordance with the requirements of the applicable lawyer code are relevant factors for the tribunal in assessing the propriety of the lawyer’s conduct under the criminal law. In other respects, a lawyer is guilty of an offense for an act committed in the course of representing a client to the same extent and on the same basis as would a nonlawyer acting similarly.

§30 Lawyer’s Liability to a Third Person for Conduct on Behalf of a Client

(1)For improper conduct while representing a client, a lawyer is subject to professional discipline as stated in §5, to civil liability as stated in Chapter 4, and to prosecution as provided in Criminal Law (see § 7).

§26 Lawyer’s Actual Authority

A lawyer’s act is considered to be that of a client in dealing with third persons when:

(1) the client has expressly or impliedly authorized the act;

(3) the client ratifies the act.

§12 Duty of a Lawyer Subject to Supervision

For purposes of professional discipline,

(1)A lawyer must conform to the requirements of an applicable lawyer code even if the lawyer acted at the direction of another lawyer or other person.

(2)A lawyer under the direct supervisory authority of another lawyer does not violate an applicable lawyer code by acting in accordance with the supervisory lawyer’s direction based on a reasonable resolution of an arguable question of professional duty.

§82 Client Crime or Fraud

The attorney-client privilege does not apply to a communication occurring when a client:

(a)consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to so, or

(b)regardless of the client’s purposes at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud.

§93 Client Crime or Fraud

Work-product immunity does not apply to materials prepared when a client consults a lawyer for the purposes, later accomplished, of obtaining assistance to engage in a crime or fraud or to aid a third person to do so or uses the materials for such a purpose.

While they aren't all-knowing Jack Baur super-geniuses they think they are, I again have to caution that the assumption I see in the traditional media and many liberal blogs that Cheney & Company + Bush are finished, on the run, on the defensive is not a good one. It looks to me as if they are (1) ignoring all criticism (2) certainly ignoring all attempts at investigation and oversight (3) redoubling their efforts in a last burst of "reality creation".

Far from going on the defensive they are preparing for one last Battle of the Bulge style offensive in an attempt to do so much damage it can't be undone.

Cranky

EW - I don't think you are following my point. Addington has not told Cheney no, except where Adddington might face personal liability. IMO, that was really at the heart of why Comey/Ashcroft/Mueller got religion as well - they were looking at a FISA court ready to issue contempt charges to the signators of the FISA applications.

As long as the advice only places others in harms way for violations of law, Addington is fine with it. Once, however, he faces the fact that HE might be forced to perjure or obstruct or mislead the courts, the fact that there is PERSONAL liability on the line brings out his "law lovin" side. It's why the FISA fight was an easy one for them - the OVP never signs off on applications. Nor does the President. DOJ is on the hook for that.

I'm not sure how criminal investigations are mundane, but the real separation line is where Addington is willing to put his money where his mouth is, or his personal liberty where his pen went, and go ahead and obstruct a criminal investigation in the name of the unilateral (as opposed, technically, to unitary - which is actually and technicallya theory that does not supplant the rule of law in the sense of the newer-genesis unilateral approach does). This is Addington's joy and blessing of being in the OVP. He doesn't have to be on the line for many of the investigations - the OVP has no authorization abilities. He forces someone else to be the one to toe the Exec's line in the onslaught of the investigations and he doesn't have to worry that much about perjury and obstruction. But when it comes down to relying on his own advice to the extent of being willing to be the one to face charges if he is wrong - then he's willing to say no. Brave boy.

Or to put it another way: the jury had enough evidence to convict just based on Addington's testimony and Libby's notes--a slam dunk. We may yet be in that situation again, and it will be useful to know the ways in which Addington can be useful as a witness.

Absolutely the way it works with all of them: if the alternative is to go to jail, they suddenly remember their deep seated love of the law. This is really one of the main reasons for all the secrecy - not so much to prevent having to argue with someone, but to stay out of the direct line of responsibility as much as possible. Addington may have done the drafting, but the AG, WHCounsel and DOJ's Office of Legal

JF when will Bush, Cheney et al, become aware that to travel outside the U.S. could lead to arrest
Never, because, realistically, as long as the US stays in its relative position of international econmic and military prominence, no country will have the nerve to snatch them up. If anyone had that nerve, Kissinger would have been taken into foreign custody long ago.

And I think the fact that there are crimes on the table answers Balkin's question. Bush made early decisions to go Cheney's way. That means that Bush signed off on orders and authorizations or otherwise approved illegal and criminal behavior. Despite how much everyone has tried to insulate him, Bush is much more in the direct line of criminal liability than Cheney - saying, "Cheney told me I could" is not really a recognized legal defense.

This is why Bush could let Rumsfeld go, but is so wedded to Gonzales and Cheney. They are his only firewalls left. Cheney is the only really effective bully on Bush's side and Bush knows it. He's hiding behind Cheney - plus, Cheney has the corporate side that is more and more responsible for making and shaping our law - in his pocket and Bush needs that to survive as well.

Bush is adrift at sea and he can't swim. Cheney and Gonzales are both his life preservers and his shark repellant. Bush is to Gonzales, what Cheney is to Bush. Bush knows what could happen without them.

IF - Bush had stood up at the beginning, instead of being beguiled by the fame and power aspects, then he would have irrevocably changed his interactions with Cheney and emerged as the actual President. Instead, he chose to follow the path being cleared by Cheney and now they are in the woods and Bush doesn't think he can do anything to get out of the woods except follow Dick. And for that matter, he probably can't.

Luckily for "cast adrift" boy, with Dems in charge of Congress you've got a plush-toy shark with a worn out squeaker that will waterlog and sink faster than Bush.

Addington will step down or rat out Cheney if he is forced to explain the various potential violations of professional conduct outlined above.

This isn't meaty but neither was the third rate break in. Forcing Addington out or flipping him could be the key to the smoking guns beyond anything Congress hopes to secure in their stonewalled investigations.

Congress has no one on the inside and Addington's alleged respect for the rule of law and numerous potential violations of professional conduct that could lead to his own criminal prosecution makes him a good candidate.

Mary

No, I don't think you're understanding my point.

Addington told Cheney and Libby that he could not be considered their lawyer in the case of a criminal investigation. Gonzales, faced with the same situation, did everything he could to help Bush and WH officials obstruct the investigation. That's what I'm talking about. Addington faced no risk if he were to advise Cheney and Libby directly (so your argument about personal risk falls down). Rather, he reluctantly recognized the precedent on this issue and abided by it.

As another exercise, you can compare Addington with Hannah, his counter part at OVP. Hannah tried his damndest to shade his testimony to help Libby. Addington did no such thing. He was--by far--one of the most loquacious witnesses at the trial.

To put it another way, Addington is lawful evil, Gonzales and Hannah are chaotic evil. We must understand the distinction, because it will help us break up this cabal.

What you don't seem to appreciate is that all of his actions here really do stem from a legal belief in the unitary executive. Once you believe in that, absolutely, as Addington does, then you will argue that any power stemming from the President really can be--must--remain outside the realm of specific regulations. That is the only reasonable way to understand a man who is at once a stickler for the law--even when it doesn't affect him personally--yet so intent on changing the law as it pertains to the UE.

One more point, Mary.

I see absolutely no evidence to argue that Addington's behavior comes out of the same motivation as Comey's and Mueller's, and I'd say there are more motivations involved with Ashcroft.

My point here is to recognize that these are complex humans, not cartoon characters as the left often treats them, and we're better off accounting for the differences (based on the evidence rather than gross assumptions) than just assuming all REpublican evil is the same Republican evil.

yrogo

Thanks for posting the ABA stuff. Honestly, though, I think Addington has complied with those rules (and Gonzales has not). Again, once you understand that he really does believe in the UE, and really does believe he is making a constitutional argument, then you'd be hard pressed to accuse him of violations of the ABA rules. Whereas, again, making the case for Gonzales is child's work.

Cheney had the goods on Bush before he was picked to become his running mate.

IMHO it's a combination of what I described yesterday, Cheney giving Bush the confidence he can really be Prez and the muscle to back him up (think the film "My Bodyguard") and he probably also has the goods on Bush and so can get him to toe the line when necessary. But don't underestimate the former. Remember when Cheney had a heart scare either before Bush took office or just after? Bush was described as ashen and terrified.

I don't think they are going down yet, at least not willingly, and I don't think they ever will willingly. But I do think we are approching a moment, between the Iraq mess, the threat of Cheney launching war with Iran and all the stuff coming out about Cheney, all of a sudden, as the Chinese say, a moment of maximum opportunity that can be turned to our advantage and maybe, jsut maybe, used to lever them either out or contained.

It appears that a major problem Liberals have is reconciling reality with those castles in the sky that they so like to build.

Addington did his job, tried to do it well, and was chaffed a bit when he didn't like it. Who can say that hasn't happened to them?

Liberals like to say "Torture doesn't work." It is a simplistic argument basically and only requires believing. They ignore the experience gained by the world's history. They even forget their own experience on the playground. After all isn't forgetting reality, a central part of believing?

And then of course there is the ever present hope that soon the emails will surface somehow comdemning Karl Rove to hell for all time, and that a traitor to the Adminstration will emerge that actually has the incriminating evidence to impeach someone, anyone in the Administration, and finally maybe most ridiculous of all, that their own elected Liberal Democratic Leaders in Congress will finally stop leading and just follow the Liberal bloggers. (They only follow the money like all Politicians.)

If believing starts to become difficult after a while, then maybe a little judicious thinking should be applied. Could help some.

ew,

Perfect. Lawful evil vs. chaotic evil. By the way, my D&D group is looking for a new DM. We play once a month in Houston.

LOL

mr. emptywheel finally "got" some of the personalities from the Libby trial when I translated it all into D&D speak. We got into an extended debate whether Fitz was a Paladin or a Ranger.

"Liberals like to say "Torture doesn't work." It is a simplistic argument basically and only requires believing. They ignore the experience gained by the world's history."

Please provide examples (with links) from history where torture "worked."

Boo @ 15:51

Don't bother asking. It's just feeding the resident troll. Unfortunately, our troll is from the group that thinks '24' is a documentary.

I think your discussion of D&D was colored by age old Rugby vs Ultimate discussion.

Possibly, BillE.

But mr. emptywheel never really played a part in that--he played rugby for about an hour before his skinny ass was beaten blue. So he's really, exclusively, an ultimate player (unless you count judo or crew). I'm the one with confusion about rugby and ultimate.

I'm horribly behind in all of my reading. I read this one and the big one on part one of Angler. I have a lingering question about Gonzales. Abu was part of the Texas mafia, how did he get dragged onto Cheney's team? In theory, you'd think Gonzales' role would be to protect Bush against being overtaken by Cheney. OTOH, is Abu just so dumb that he just allowed himself to become Cheney's puppet.

Also, my husband (a retired D&D player) says Fitz is definitely a Paladin. (I take great pride in having no idea what either a Ranger or Paladin is.)

i've finally figured out how to work impeachment into all of this.

first you have an impeachment trial for gonzales.

i'm a little leary of saying "slam dunk",

but the man has made quite a few blunders, from public lying to inappropriate political activity within the doj to incompetent decisions as the doj's chief administrator.

and quite a few enemies.


next, you have an impeachment trial for cheney.

this will be tougher, but the wapo series makes it MUCH easier by removing cheney's protective cover of secrecy.

people did not like cheney, but they did not know just why. now they have verse and capture on what can only be described as a political madman by american national standards of political conduct.

and a genuine threat to liberty in this country, as well as to this country's standing in world affairs.

more importantly, the congress has a road map to follow in collecting info on chaney's actions over the last six years.


having impeached and convicted (=removed) gonzales as attorney general,

and, most likely, impeached but not convicted cheney,

bush will be left as president with a de-fanged (or resigned) vice-president,

given help from bolton and rice we can hope that bush alone will be less likely to mess things up for the country for the remaining x months of his term.

i know, it's just a fantasy, but it felt good to type.

p.s. my speculations about who influenced this wapo series on cheney includes that old naval intelligence guy who's an assistant editor st wapo and who spent many years living among st the natives in the bush white house.

woodward would certainly know who to suggest wapo reporters interview

and he might be a conduit for white house insiders antagonistic to cheney.


"I think Addington has complied with those rules.”

Not exactly sure why you're concluding that. The point of posting the Model Rules was for you all to look at his “conduct” while representing Cheney. I’m not suggesting he’s on the hook for any goofy advice given or nutty constitutional argument made. Conduct. Any misconduct on his part subjects him to professional discipline, maybe civil liability, and possibly criminal prosecution. The model rules are broad and far reaching for a reason – to prevent lawyers from corrupting the process as well as to prevent clients from corrupting lawyers.

The first question is whether he violated model rules… so feel free to show us how “Addington has complied with those rules” based on what is known…now.


Before you get going, here's the relevant terminology under model rule 1.0

"Fraudulent" - conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose [intent]to decieve. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

"Knowingly" - actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

So go for it, any Professional Misconduct here?

1) Did he counsel Cheney in conduct that he knew was illegal or fraudulent DR-7-102, ABA Standard 4-3.7.

2) Did he assist Cheney in conduct that he knew was illegal or fraudulent DR-7-102 DR-7-102, ABA Standard 4-3.7.

3) Did he knowlingly engage in illegal conduct DR-7-102.

4) Did he knowlingly engage in conduct contrary to a disciplinary rule DR-7-102.

5) Did he achieve an ability to influence improperly a government agency or official by means that violate models rule OR other law ABA MR 8.4 (e).

6) Did he use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for Cheney under circumstances where he knows that such action is not in the public interest DR 8-101(A)(1).

7) Did he use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for Cheney and it is obvious that such action is not in the public interest DR 8-101(A)(1).

8) Did he falsifiy documents or other evidence or destroy or obstruct another party’s access to documentary or other evidence when doing so would assist a client to do so. §118 3rd Rest.


Ok what if didn’t personally violate model rules of professional conduct? Is he still subject to professional discipline? Maybe...

1) if he personally attempted to violated model rules ABA MR 8.4 (a).

2) if he knowlingly assisted others to violate model rules ABA MR 8.4 (a).

3) if he induced another to violate model rules ABA MR 8.4 (a).

4) if he violated model rules through the acts of his subordinates ABA MR 8.4 (a).


So what if he did it doesn’t mean anything.
Well…If there is improper conduct while representing Cheney

1)He is subject to professional discipline as stated in §5, to civil liability as stated in Chapter 4, and to prosecution as provided in Criminal Law (see § 7 ) under §30. ) If the offense is committed in the course of representing a client to the same extent and on the same basis as would a nonlawyer acting similarly under §8.


yrogo,

your two postings are most educational for me.

thanks

yrogo - I understand the model rules and canons fairly well, and agree with EW here. I don't care for Addington's conduct any more than you do, but I think the missing element is intent. The picture is further clouded by the issue of "legality" in light of the fact that the action is on behalf of, and at the direction of, the Executive of the United States. None of this excuses Addington's conduct, but I think it is unlikely that he is subject to disciplinary action by a bar. Alberto Gonzales, as well as several others from the DOJ theo-cabal, now there you have some likely and deserving candidates.

mary (at 11:27)

i've read your comment three times now,

over the course of a day,

and all i can say in response is

you are right.

i especially like the last two parag's.

all that's happened in the bush administration is due largely to bush's lack of executive control

over advisers who love power

but, i suspect,

love the vestments of power even more:

limousines (o.k., suv's), body guards, red passports, white-house passes, mentions in the media, flying easy and fast, meetings with veep and potus, etc.

it's amazing the childish qualities that can predominate in "our leaders".


thanks

Bill Nelson appears to be the key to whether the Rizzo nomination will get out of committee. Hagel and Snowe are also on the committee.

EW - I understand what you think the dividing line is, but I don't agree that anything reflects that.

Addington told Cheney and Libby that he could not be considered their lawyer in the case of a criminal investigation.

That's because it is true. He could not represent them as their lawyer in the criminal investigation. If he had tried, he could likely lose his license and the Clinton counsel case law also made it very very very clear that if they discussed matters with him, in his position, they would not be privileged. If he refused to reveal based on a claim of privilege - despite the clear case law that he has no ability to make that claim, they could lose privilege AND he could be in contempt. So I don't think that proves anything about a deep seated respect for the law.

Gonzales, faced with the same situation, did everything he could to help Bush and WH officials obstruct the investigation. How? If you can prove that point, Fitzgerald needs to file an obstruction claim. I think you can assume it, but lots of luck proving it. And IIRC, Fitzgerald didn't even depose Gonzales, did he?

Addington faced no risk if he were to advise Cheney and Libby directly (so your argument about personal risk falls down). Yes, he did. If he advised them directly and covered it up AND it was discovered, he could lose his license and possibly face obstruction charges. If he advised them directly and didn't cover it up, based on the case law generated in Clinton's brouhaha's, then no privilege attaches - period. He'd have to spill it all and if it came out that he lied, he'd again be looking at possibly going to jail. It's all about his personal liability IMO.

To put it another way, Addington is lawful evil, Gonzales and Hannah are chaotic evil. We must understand the distinction, because it will help us break up this cabal.

I don't agree. There is nothing "lawful" about many to most of the things Addington pushed - but it is easy to push them from an insulated position where you have no liability. Where he quit pushing was when he was directly on the hook.

What you don't seem to appreciate is that all of his actions here really do stem from a legal belief in the unitary executive.

You're right there - I don't pretend to have insights into the heart and sole of Addington. OTOH, the "unitary executive" is an actual legal theory and it doesn't begin to support what he and others of his ilk have claimed. I actually agree with parts of the unitary executive theory for that matter (not all). Instead, Addington et al proposed a bifold - a unilateral executive theory and an all powerful Commander-in-Chief theory - neither of which are lawful or subjec to any legal scholarship or credibility.

Once you believe in that, absolutely, as Addington does, then you will argue that any power stemming from the President really can be--must--remain outside the realm of specific regulations. Again - you have the grounds to speculatate on his beliefs - not so much me.

That is the only reasonable way to understand a man who is at once a stickler for the law--even when it doesn't affect him personally--yet so intent on changing the law as it pertains to the UE.

I don't think so. I think the reasonable way is the one I went with - that his power grabs are constrained by the possiblity of personal liability more so than by ideology (he sure didn't file any amicus briefs for Clinton) and, for example, if he was "so sure" about his UE claim, he would have discarded the Clinton era cases on criminal advice by WH counsel and gone ahead and winged that one - but he didn't. Bc he doesn't really believe - he just uses for the power base IMO.

And the "stickler" issue so far as been items of personal liability, but even outside that - the same kind of authoritarian personality that will try to sell the concept of an all powerful CIC and unilateral executive will also be happy to impose the letter of the law on others.

JMO and I don't have the personal insight into Addington.

Up top, around 3rd paragraph, you mention James Yoo. Please tell me you mean John and that there isn't another Yoo.

Quote by: Boo Radley
"Please provide examples (with links) from history where torture "worked."

First let me say again Torture is terrible and only when it is necessary to prevent more terrible things should it be used.

I refer you to some well known examples:
The Spanish Inquisition - 99+ percent of the heretics confessed.
The KGB
The current Mexican Police
A few well noted in the papers Police Interrogations that resulted in Confessions that later were overturned for one reason or another.

I say this much, if you guys believe Addington violated no rules of professional conduct, there's not enough evidence of misconduct that would subject him to professional discipline by the bar, he committed no illegallity or fraud or assisted or counciled the same...then it's time to move on.

Can anyone specifically say why Addington is A-ok here? EW says he complied with the those rules and bmaz says it's too hard to prove and Gonzales is the best candidate.

Sure, Addington is dandy and going after Gonzales does more to remove Cheney's brains and muscle behind his operation. Right. Sorry to bring it up.

https://www.warandpiece.com/blogdirs/006341.html

A Hill staffer sends comment on the Post Cheney revelations:

It reaffirms what everyone knows – that Cheney ... has been running his own government for the past six years. It is not a coup because it has the blessing of a twice-elected President.

The fascinating thing is that, if you talk to any foreign policy conservative today, they absolutely believe that it is Condi Rice who is controlling the reins of power today and that the President is following her every dictate. Just take a look at what John Bolton has been saying – the President is being misguided by the State Department.

Here is one prediction for you: come January 20th, 2009, Mr. Addington will never again be able to leave U.S. soil. He will risk arrest for war crimes offenses and will not have the current diplomatic protections he enjoys today.

One might add the Vice President into that mix, but I suspect no government is willing to risk arrest a former constitutional officer of the United States.

Addington, on the other hand, will be a bureaucratic has been. ....

Marcy, Thank you for these posts. As a mere mortal, I am working hard to follow, understand and retain.

Mary and Marcy, Thank you for the willingness to engage each other here. It helps to educate me, challenging me to take different sides of the argument. Please keep doing this. I am sure I speak for others when I speak to the value of each argument.

And to all you other regulars, I read your comments as avidly as I read Marcy.

Great comment Boston 1775 and thanks to PJ Evans at 16:11.

This discussion on whether the OVP "is" or "is not" subject to Executive Orders on classification is silly.

32 CFR 2800 specifically applies to OVP: He is required to comply with the 32 CFR 2800, which does rely on Executive Orders, and relates to security requirements on OVP. Please read it. At the link under "ANON". Addington has no explanation why OVP blocked the auditors.

32 CFR 2800 has specific ministerial duties on OVP legal counsel. Addington has a motivation to say security guidelines do not apply: Addington, himself, and other OVP legal counsel have not fully complied wtih 32 CFR 2800.

Here's it all laid out: Visit here [Halsocan comment]

Thank you.

Boo Radley,

hey, add to that short list the

Tower of London.

English Kings sometimes like to be divine.
King Solomon who sometimes checked on baby's maternity.

Boo,

I just used simple commonly known historical references, making it easy for you.

There was an affidavit attached to a new petition for review, in the Odah matter, filed last week; the pdf is fifteen pages, the affidavit comprising the second half. The affidavit is authored by a uniformed participant in the combat status review panel process, and raises an issue regarding evidentiary standards abrogation at the CSRT; averedly both prosecution and defense were denied access to some materials. As a historical sidelight, the panel of DC Circuit which rebuffed Odah's last petition in February 2007 was Sentelle, Randolph, Rogers; Rogers writing a thorough dissent. It would be nice if congress would provide some increased traction for the two CSRT cases which the goverment lost on June 5, concerning who would be responsible for assigning the unlawful enemy combatant tag to both Khadr and Hamdan, though these latter two each took an original way to achieve a like outcome in that assignation process. It might be worthwhile knowing how far into such minutiae Addington's research goes, given these cases are mostly five years in process. Perhaps the contributor in the thread who depicted Addington's m.o. as pure actuary might suggest a way within Addington's own internal dialog, to assuage the impact of the stream of defeats and temporizing. My sense is too many constitutionally literate minds are balking at where Addington and Yoo and others' intentions were headed, as if the constitution were the imanence bolixing the works for proponents of habeasless torture as a surrogate for some originalist image of human worth. For the most part, persecution of minorities had tapered before the colonies became the US; and, to me, the constitution reflects that optimistic appreciation of where the Founders' teology was directing the growth of the then nascent republic, as if signing the document was a threshold demarcating a boundary overcome, thenceforth much work being required to eliminate the residue of regional repressions of the groups which had little voice in political processes.

the spanish inqusition as a sign of success ???

so, how did that whole "Spanish Empire" thingy work out ???

the KGB ???

how did that whole "Communist revolution" thingy work out ???

the current Mexican Police ???

oh yeah, Mexico is a beacon of peace and justice

hey shit stain, do you even understand what the word "Success" means ???

no wonder you're a loyal bushie

you got no fucking clue what success looks like

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