Addington's Methods

by emptywheel

Before I get too deep in the detail of today's installment of WaPo's series on Cheney, I'd like to remind you of a point I made in my Take Back America speech. While David Addington's theories on executive power are tremendously dangerous, Addington does believe in the rule of law. He admitted in his Libby trial testimony, for example, that the "Treated as Top Secret/SCI" stamp that OVP had used with all the evidence turned over to investigators was not covered by the Presidents EO on classification. And he described scolding Dan Bartlett after the White House exonerated Libby and Rove publicly in Fall 2003. Whereas Alberto Gonzales appears to blithely transgress all normal legal limits on behavior (as when he coached Monica Goodling's testimony), Addington respects those limits, so long as they don't clash with the power of the presidency.

Which is why this passage from the WaPo article is so telling:

Flanigan said that Addington's personal views leaned more toward Olson than against him, but that he beat back the proposal to grant detainees access to lawyers, "because that was the position of his client, the vice president."

The issue was whether enemy combatants could have a lawyer represent them. And on that issue, Addington appears to have suppressed his own judgment (which sounds like a pragmatic judgment on how best to retain presidential powers) in favor of Cheney's intractable stance.

The rest of the article describes how Addington repeatedly found ways to implement Cheney's theories. In the first installment, we saw how Addington provided people like James John Yoo and Alberto Gonzales finished interpretive memos that they could sign with their own name. Apparently, that practice extends to the President himself.

The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of" the Geneva Conventions. When Bush issued his public decision two weeks later, on Feb. 7, 2002, he adopted Addington's formula -- with all its room for maneuver -- verbatim.

The method, then, is that Addington writes all the legal arguments. The content, though, is just as instructive: ambiguity. David Addington has been preserving presidential power by repeatedly writing ambiguous memos so as to reserve the largest possible area of activity outside the rule of law. Most instructive is the description of the way to retain for the CIA the ability to torture detainees. Addington and Cheney made sure that the McCain anti-Torture bill carved out space for the CIA, reasserted US law, rather than international law, as primary, and in the end issued a signing statement reasserting the Unitary Executive.

Yet Cheney and Addington found a roundabout path to the exceptions they sought for the CIA, as allies in Congress made little-noticed adjustments to the bill.

The final measure confined only the Defense Department to the list of interrogation techniques specified in a new Army field manual. No techniques were specified for CIA officers, who were forbidden only in general terms to employ "cruel" or "inhuman" methods. Crucially, the new law said those words would be interpreted in light of U.S. constitutional law. That made a big difference to Cheney.

The Supreme Court has defined cruelty as an act that "shocks the conscience" under the circumstances. Addington suggested, according to another government lawyer, that harsh methods would be far less shocking under circumstances involving a mass-casualty terrorist threat. Cheney may have alluded to that advice in an interview with ABC's "Nightline" on Dec. 18, 2005, saying that "what shocks the conscience" is to some extent "in the eye of the beholder."

Eager to put detainee scandals behind them, Bush's advisers spent days composing a statement in which the president would declare support for the veto-proof bill on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney's lawyer intercepted the accompanying statement "and just literally takes his red pen all the way through it," according to an official with firsthand knowledge.

Addington substituted a single sentence. Bush, he wrote, would interpret the law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."

Cheney and his aides "didn't circumvent the process," one participant said. "They were just very effective in using it."

Two more points. This second installment provides some evidence for why some of the biggest fans of executive power are splitting from Cheney. The Administration ignored its close ally in Brad Berenson's advice about Justice Kennedy.

Berenson told colleagues that the court's swing voter would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard. Another former Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier. Addington accused Berenson of surrendering executive power on a fool's prophecy about an inscrutable court. Berenson accused Addington of "know-nothingness."

They similarly ignored John Yoo's advice about allowing the military--rather than just the CIA--to use torture.

Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be dangerous as a matter of policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently," Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed.

You're not going to retain the loyalty of your close allies when you ignore their advice--and it subsequently proves correct (as it did in both these cases).

Similarly, Cheney and Addington have forced some of their closest allies to defend impossible arguments, as they did with both Ted Olson and current Solicitor General Paul Clement.

When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."

It's probably worth keeping in mind that Cheney and Addington have forced Clement into a humiliating position.

Finally, though, there's the underlying guarantee of failure of the whole system. Sure, the article points out that Cheney, most notably with the Military Commissions Act, continues to win battles, largely by playing to the real weakness of Congress. But two things are leading to some significant defeats. The fact that Cheney is ignoring the advice of the pragmatists who actually share Cheney's goals (and this list includes even Addington). And the fact that at base, they're working from ignorance. Take this seminal statement from Addington:

 

David S. Addington, Cheney's general counsel, set the new legal agenda in a blunt memorandum shortly after the CIA delegation returned to Langley. Geneva's "strict limits on questioning of enemy prisoners," he wrote on Jan. 25, 2002, hobbled efforts "to quickly obtain information from captured terrorists."

I'd love to hear what Colin Powell has to say about this. Because this statement shows such a narrow appreciation from the issue--it considers torture only through the desire to acquire information (and does not reflect a lot of good evidence that shows torture actually doesn't help), rather than the larger view of whether it helps the larger effort, the goal to prevent terrorism.

David Addington may be a damn good lawyer. But it's not clear he has the experience to make wise  judgments about the use of torture. That may well lead to the failure of his objectives on presidential power. We need to make sure that it becomes a failure for the theory of presidential power.

 

Comments

[Sojourner]

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!

[SaltinWound]

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

[radiofreewill]

"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"

[nellieh]

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!

[Frank Probst]

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.

[kaleidescope]

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.

[Cranky Observer]

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

[p.lukasiak]

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....

[orionATL]

"[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."

[AmIDreaming]

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.

[Mary]

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.

[Mimikatz]

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.

[nolo]

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. . .]

[my too sense]

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.

[CCinNC]

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 ...

[NOBODY FROM NOWHERE]

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!

[njr]

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.

[emptywheel]

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.

[John Forde]

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.

[Sojourner]

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...

[Dismayed]

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.

[Sojourner]

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...

[earlofhuntingdon]

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.

[BillE]

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.

[BillE]

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