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.