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from TruthOut Website
On December 18th, Colin Powell, the former Secretary of State, joined other prominent Washington figures at FedEx Field, the Redskins' stadium, in a skybox belonging to the team's owner.
During the game, between the Redskins and the Dallas Cowboys, Powell spoke of a recent report in the Times which revealed that President Bush, in his pursuit of terrorists, had secretly authorized the National Security Agency to eavesdrop on American citizens without first obtaining a warrant from the Foreign Intelligence Surveillance Court, as required by federal law.
This requirement, which was instituted by Congress in 1978, after the Watergate scandal, was designed to protect civil liberties and curb abuses of executive power, such as Nixon's secret monitoring of political opponents and the F.B.I.'s eavesdropping on Martin Luther King, Jr.
Nixon had claimed that as President he had the "inherent authority" to spy on people his Administration deemed enemies, such as the anti-Vietnam War activist Daniel Ellsberg.
Both Nixon and the institution of the Presidency had paid a high
price for this assumption. But, according to the Times, since 2002 the legal
checks that Congress constructed to insure that no President would repeat
Nixon's actions had been secretly ignored.
Powell was referring to David S. Addington, Vice-President Cheney's chief of staff and his longtime principal legal adviser. Powell's office says that he does not recall making the statement.
But his former top aide, Lawrence
Wilkerson, confirms that he and Powell shared this opinion of Addington.
Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside. A former high-ranking Administration lawyer who worked extensively on national-security issues said that the Administration's legal positions were, to a remarkable degree, "all Addington."
Another lawyer, Richard L. Shiffrin, who until 2003 was the
Pentagon's deputy general counsel for intelligence, said that Addington was
"an unopposable force."
Terror suspects would be tried in a system of military commissions, in Guantánamo Bay, Cuba, devised by the executive branch. The Administration designated these suspects not as criminals or as prisoners of war but as "illegal enemy combatants," whose treatment would be ultimately decided by the President.
By emphasizing interrogation over due process, the government intended to preempt future attacks before they materialized.
In November, 2001, Cheney said of the military commissions,
Yet, almost five years later, this improvised military model, which Addington was instrumental in creating, has achieved very limited results. Not a single terror suspect has been tried before a military commission.
Only ten of the more than seven hundred men who have been imprisoned at Guantánamo have been formally charged with any wrongdoing. Earlier this month, three detainees committed suicide in the camp. Germany and Denmark, along with the European Union and the United Nations Commission on Human Rights, have called for the prison to be closed, accusing the United States of violating internationally accepted standards for humane treatment and due process. The New Paradigm has also come under serious challenge from the judicial branch.
Two years ago, in Rasul v. Bush, the Supreme Court ruled
against the Administration's contention that the Guantánamo prisoners were
beyond the reach of the U.S. court system and could not challenge their
detention. And this week the Court is expected to deliver a decision in Hamdan v. Rumsfeld, a case that questions the legality of the military
commissions.
Scott Horton, a professor at Columbia Law School, and the head of the New York Bar Association's International Law committee, said that Addington and a small group of Administration lawyers who share his views had attempted to,
The historian Arthur Schlesinger, Jr., who defined Nixon as the extreme example of Presidential overreaching in his book "The Imperial Presidency" (1973), said he believes that Bush,
As for the Administration's legal defense of torture, which Addington played a central role in formulating, Schlesinger said,
Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisers had,
Richard A. Epstein, a prominent libertarian law professor at the University of Chicago, said,
He warned of an impending,
The former high-ranking lawyer for the Administration, who worked closely with Addington, and who shares his political conservatism, said that, in the aftermath of September 11th,
He noted,
Although the lawyer supported the President, he felt that his Administration had been led astray.
He has left almost no public paper
trail, and he does not speak to the press or allow photographs to be taken
for news stories. (He declined repeated requests to be interviewed for this
article.)
He is a hawk on defense issues,
but he has never served in the military.
Addington's talent for bureaucratic infighting is such that some of his supporters tend to invoke, with admiration, metaphors involving knives.
Juleanna Glover Weiss, Cheney's former press secretary, said,
Bradford Berenson, a former White House lawyer, said,
People who have sparred with him agree.
Another reason for Addington's singular role after September 11th is that he offered legal certitude at a moment of great political and legal confusion, in an Administration in which neither the President, the Vice-President, the Secretary of Defense, the Secretary of State, nor the national-security adviser was a lawyer. (In the Clinton Administration, all these posts, except for the Vice-Presidency, were held by lawyers at some point.)
Neither the Attorney General, John Ashcroft, nor the White House counsel, Alberto Gonzales, had anything like Addington's familiarity with national-security law. Moreover, Ashcroft's relations with the White House were strained, and he was left out of the inner circle that decided the most radical legal strategies in the war on terror.
Gonzales had more influence, because of his longtime ties to the President, but, as an Administration lawyer put it,
Participants in meetings in the White House counsel's office, in the days immediately after September 11th, have described Gonzales sitting in a wingback chair, asking questions, while Addington sat directly across from him and held forth.
Bruce Fein said that the Bush legal team was strikingly unsophisticated.
Conventional wisdom holds that September 11th changed everything, including the thinking of Cheney and Addington. Brent Scowcroft, the former national-security adviser, has said of Cheney that he barely recognizes the reasonable politician he knew in the past.
But a close look at the twenty-year collaboration between Cheney and Addington suggests that in fact their ideology has not changed much. It seems clear that Addington was able to promote vast executive powers after September 11th in part because he and Cheney had been laying the political groundwork for years.
Addington's admirers see him as a selfless patriot, a workaholic defender of a purist interpretation of Presidential power - the necessary answer to threatening times.
In 1983, Steve Berry, a Republican lawyer and lobbyist in Washington, hired Addington to work with him as the legislative counsel to the House Intelligence Committee; he has been a career patron and close friend ever since.
He said,
Berry added that Addington is acutely aware of the legal tensions between liberty and security.
But, he said, they concluded that a "strong national security and defense" was the first priority, and that "without a strong defense, there's not much expectation or hope of having other freedoms."
He said that there is no better defender of the country than Addington:
Berry has a daughter who works in New York City, and he said that when he thinks of her safety he appreciates the efforts that Addington has made to strengthen the country's security.
He said,
Berry said of his friend,
He noted that Addington refuses to let Berry treat him to a hamburger because it might raise issues of influence-buying - instead, they split the check. Addington, he went on, has a dazzling ability to recall the past twenty-five years' worth of intelligence and national-security legislation.
For many years, he kept a vast collection of legal documents in a library in his modest brick-and-clapboard home, in Alexandria, Virginia. One evening several years ago, lightning struck a nearby power line and the house caught fire; much of the archive burned. The fire started at around nine in the evening, and Addington, typically, was still in his office.
His wife, Cynthia, and their three daughters were fine, but the loss of his extraordinary collection of papers and political memorabilia, Berry said,
Though few people doubt Addington's knowledge of national-security law, even his admirers question his political instincts.
Even Berry offered a gentle criticism:
Addington has been a hawk on national defense since he was a teen-ager. Leonard Napolitano, an engineer who was one of Addington's close childhood friends, and whose political leanings are more like those of his sister, Janet Napolitano, the Democratic governor of Arizona, joked,
The Addingtons were a traditional Catholic military family. They moved frequently; David's father, Jerry, an electrical engineer in the Army, was assigned to a variety of posts, including Saudi Arabia and Washington, D.C., where he worked with the Joint Chiefs of Staff.
As a teen-ager, Addington told a friend that he hoped to live in Washington himself when he grew up. Jerry Addington, a 1940 graduate of West Point who won a Bronze Star during the Second World War, also served in Korea and at the North American Air Defense Command, in Colorado; he reached the rank of brigadier general before he retired, in 1970, when David was thirteen.
David attended public high school in Albuquerque, New Mexico, and his father began a second career, teaching middle-school math. His mother, Eleanore, was a housewife; the family lived in a ranch house in a middle-class subdivision.
She still lives there; Jerry died in 1994.
She was reluctant to say more.
Socially, Napolitano recalled, he and Addington were "the brains, or nerds." Addington stood out for wearing black socks with shorts. He and his friends were not particularly athletic, and they liked to play poker all night on weekends, stopping early in the morning for breakfast.
Their circle included some girls, until the boys found them,
When he and Addington were in high school, Napolitano said, the Vietnam War was in its final stages, and,
Addington's high-school history teacher, Irwin Hoffman, whom Napolitano recalled as wonderful, exacting, and "a flaming liberal," said that Addington felt strongly that America,
Hoffman, who is retired, added,
Addington graduated in 1974, the year that Nixon resigned. In the aftermath of Watergate, liberal Democratic reformers imposed tighter restraints on the President and reined in the C.I.A., whose excesses were critiqued in congressional hearings, led by Senator Frank Church and Representative Otis Pike, that exposed details of assassination plots, coup attempts, mind-control experiments, and domestic spying.
Congress passed a series of
measures aimed at reinvigorating the system of checks and balances,
including an expanded Freedom of Information Act and the Foreign
Intelligence Surveillance Act, the law requiring judicial review before
foreign suspects inside the country could be wiretapped. It also created the
House and Senate Intelligence Committees, which oversee all covert CIA
activities.
He went home and, according to Napolitano, worked in a Long John Silver's restaurant.
Addington went to Georgetown University, graduating summa cum laude, in
1978, from the school of foreign service; he went on to earn honors at Duke
Law School. After graduating, in 1981, he married Linda Werling, a graduate
student in pharmacology. The marriage ended in divorce. His current wife,
Cynthia, takes care of their three girls full-time.
A former top agency lawyer who later worked with Addington said that Addington strongly opposed the reform movements that followed Vietnam and Watergate.
These views were shared by Dick Cheney, who served as chief of staff in the Ford Administration.
Kenneth Adelman, who was a high-ranking Pentagon official under Ford, said that the fall of Saigon, in 1975, was,
Jane Harman, the ranking Democrat on the House Intelligence Committee, who has spent considerable time working with Cheney and Addington in recent years, believes that they are still fighting Watergate.
She said that in meetings Addington is always courtly and pleasant. But when it comes to accommodating
Congress "his answer is always no."
Further, Cheney explained, it was his express aim to restore the balance of power.
The President needed to be able to act as Alexander Hamilton had described it in the Federalist Papers, with,
He added,
At the CIA, where Addington spent two years, he focused on curtailing the ability of Congress to interfere in intelligence gathering.
After the Church and Pike hearings, legislators came up with hundreds of pages of oversight recommendations, he said.
Addington viewed the public airings of the C.I.A.'s covert activities as,
When Addington joined the C.I.A., it was directed by William J. Casey, who also regarded congressional constraints on the agency as impediments to be circumvented. His sentiment about congressional overseers was best captured during a hearing about covert actions in Central America, when he responded to tough questioning by muttering the word "assholes."
After Reagan's election in 1980, the executive branch was dominated by conservative Republicans, while the House was governed by liberal Democrats. The two parties fought intensely over Central America; the Reagan Administration was determined to overthrow the leftist Sandinista government in Nicaragua. Using their constitutional authority over appropriations, the Democrats in Congress forbade the CIA to spend federal funds to support the Contras, a rightist rebel group.
But Casey's attitude, as Berry recalled it, was,
Berry, then the staff director for the Republicans on the House Intelligence
Committee, asked Casey for help in fighting the Democrats. Soon afterward, Addington joined Berry on Capitol Hill.
Even within the Reagan Administration, the foreign funding was controversial. Secretary of State George Shultz had warned Reagan that he might be committing an impeachable offense. But, under Casey's guidance, the White House went ahead with the plan; Shultz, having expressed misgivings, was not told.
It was a bureaucratic tactic that Addington reprised after September 11th, when Powell was left out of key deliberations about the treatment of detainees. Lawrence Wilkerson, Powell's aide, said that he was aware of Addington's general strategy:
The Iran-Contra scandal substantially weakened Reagan's popularity and, eventually, seven people were convicted of seventeen felonies. Cheney, who was then a Republican congressman from Wyoming, worried that the scandal would further undercut Presidential authority. In late 1986, he became the ranking Republican on a House select committee that was investigating the scandal, and he commissioned a report on Reagan's support of the Contras.
Addington, who had become an expert in intelligence law, contributed legal research. The scholarly-sounding but politically outlandish Minority Report, released in 1987, argued that Congress - not the President - had overstepped its authority, by encroaching on the President's foreign-policy powers.
The President, the report said, had been driven by,
The Minority Report sanctioned the President's actions to a surprising degree, considering the number of criminal charges that resulted from the scandal. The report also defended the legality of ignoring congressional intelligence oversight, arguing that,
And it condemned "legislative hostage taking," noting that
In his December interview with reporters, Cheney proudly cited this document.
Addington and Cheney became a formidable team, but it was soon clear that Addington would not join Cheney as a politician.
Adelman recalled Addington's personality as "dour," adding that,
But, he added,
He went on,
In 1989, President George H. W. Bush appointed Cheney Secretary of Defense. Cheney hired Addington first as his special assistant and, later, as the Pentagon's general counsel. At the Pentagon, Addington became widely known as Cheney's gatekeeper - a stickler for process who controlled the flow of documents to his boss.
Using a red felt-tipped pen, he covered his
colleagues' memos with comments before returning them for rewrites. His
editing invariably made arguments sharper, smarter, and more firm in their
defense of Cheney's executive powers, a former military official who worked
with him said.
A former colleague recalled that, after attending a demonstration by Special Forces officers, he mocked the CIA, which was constrained by oversight laws.
(After September 11th, the Pentagon greatly expanded its covert intelligence operations; these programs have less congressional oversight than those of the CIA)
Cheney, throughout his tenure as Defense Secretary, shared with Addington a pessimistic view of the Soviet Union.
Both remained skeptical of Gorbachev long after the State Department, the national-security adviser, and the CIA had concluded that he was a reformer.
They immersed themselves in "continuity of government exercises" -
studying with unusual intensity how the government might survive a nuclear
attack. According to "Rise of the Vulcans," a history of the period by James
Mann, Cheney, more than once, spent the night in an underground bunker.
Once Cheney became Vice-President, Addington helped oversee the transition, setting up the most powerful Vice-Presidency in America's history. Addington's high-school friend Leonard Napolitano said Addington told him that he and Cheney were merging the Vice-President's office with the President's into a single "Executive Office," instead of having "two different camps."
Napolitano added,
Addington created a system to insure that virtually all important documents relating to national-security matters were seen by the Vice-President's office.
The former high-ranking Administration lawyer said that Addington regularly attended White House legal meetings with the CIA and the National Security Agency. He received copies of all National Security Council documents, including internal memos from the staff.
And, as a former top official in the Defense Department, he exerted influence over the legal office at the Pentagon, helping his protégé William J. Haynes secure the position of general counsel.
A former national-security lawyer, speaking of the Pentagon's legal office, said,
In the days after September 11th, a half-dozen White House lawyers had heated discussions about how to frame the Administration's legal response to the attacks.
Bradford Berenson, one of the participants, recalled how "raw" feelings were at the time:
Berry said that Addington felt this keenly.
Almost immediately, other Administration lawyers noticed that Addington dominated the internal debates. His assumption, shared by other hard-line lawyers in the White House counsel's office and in the Justice Department's Office of Legal Counsel, was that the criminal-justice system was insufficient to handle the threat from terrorism.
The matter was settled without debate, Berenson recalled:
Richard Shiffrin, the former Pentagon lawyer, said that during a tense White House meeting held in the Situation Room just a few days after September 11th,
The details of the discussion are classified, Shiffrin said, but he left with the impression that Addington,
Another participant recalled,
He added that Addington's manner in meetings was "very insistent and very loud."
Yet another participant said that, whenever he cautioned against executive-branch overreaching, Addington would respond brusquely,
Some of the protests from Democrats about the Administration's legal arguments and some of the declarations of high principle from Republicans are mere partisan gestures.
Both sides have changed their views about the need for a strong President, depending on whether they were in power.
Lincoln infamously suspended habeas-corpus rights during the Civil War, locking up thousands of Confederate sympathizers without due process, and Franklin D. Roosevelt interned more than a hundred thousand innocent Japanese-Americans.
Bush's defenders frequently cite the example of Lincoln as a justification for placing national security above the rule of law. But Schlesinger, in his book "War and the American Presidency" (2004), points out that Lincoln never,
The Bush White House, he
told me, has seized on these historical aberrations and turned them into a
doctrine of Presidential prerogative.
The memo's broad definition of the enemy went beyond that of Congress, which, on September 14th, had passed legislation authorizing the President to use military force against "nations, organizations, or persons" directly linked to the attacks.
The memo was written by John Yoo, a lawyer in the Office of Legal Counsel who worked closely with Addington, and said, in part,
The memo acknowledged that Article I of the Constitution gives Congress the power to declare war, but argued that it was a misreading to assume that the article gives Congress the lead role in making war. Instead, the memo said,
It concluded,
Another memo sanctioned torture when the President deems it necessary; yet another claimed that there were virtually no valid legal prohibitions against the inhumane treatment of foreign prisoners held by the CIA outside the U.S. Most of these decisions, according to many Administration officials who were involved in the process, were made in secrecy, and the customary interagency debate and vetting procedures were sidestepped.
Addington either drafted the memos himself or advised those who were drafting them.
On November 13, 2001, an executive order setting up the military commissions was issued under Bush's signature. The decision stunned Powell; the national-security adviser, Condoleezza Rice; the highest-ranking lawyer at the C.I.A.; and many judge advocate generals, or JAGs, the top lawyers in the military services.
None of them had been consulted.
Michael Chertoff, the head of the Justice Department's criminal division, who had argued for trying terror suspects in the U.S. courts, was also bypassed. And the order surprised John Bellinger III, the National Security Council legal adviser and deputy White House counsel, who had been formally asked to help create a legal method for trying foreign terror suspects.
According to multiple
sources, Addington secretly usurped the process. He and a few hand-picked
associates, including Bradford Berenson and Timothy Flanigan, a lawyer in
the White House counsel's office, wrote the executive order creating the
commissions. Moreover, Addington did not show drafts of the order to Powell
or Rice, who, the senior Administration lawyer said, was incensed when she
learned about her exclusion.
The commissions could try any foreign person the President or his representatives deemed to have "engaged in" or "abetted" or "conspired to commit" terrorism, without offering the right to seek an appeal from anyone but the President or the Secretary of Defense. Detainees would be treated "humanely," and would be given "full and fair trials," the order said.
Yet the order continued that,
The death penalty, for example, could be imposed even if there was a split verdict. Moreover, in December, 2001, the Department of Defense circulated internal memos suggesting that, in the commission system, defendants would have only limited rights to confront their accusers, see all the evidence against them, or be present during their trials.
There would be no right to remain silent, and hearsay
evidence would be admissible, as would evidence obtained through physical
coercion. Guilt did not need to be proved beyond a reasonable doubt. The
order firmly established that terrorism would henceforth be approached on a
war footing, endowing the President with enhanced powers.
Roosevelt was later criticized for creating a sham process. Moreover, while he used military commissions to try a handful of suspects who had already admitted their guilt, the Bush White House was proposing expanding the process to cover thousands of "enemy combatants."
It was also ignoring the Uniform Code of Military Justice,
which, having codified procedures for courts-martial in 1951, had rendered Quirin out of date.
Concerns about civil liberties and human rights, and anger over Vietnam and Watergate, he said, had turned public opinion against a strong executive branch:
Rear Admiral Donald Guter, who was the Navy's chief JAG until June, 2002, said that he and the other JAGs, who were experts in the laws of war, tried unsuccessfully to amend parts of the military-commission plan when they learned of it, days before the order was formally signed by the President.
In a 2004 report in the Times, Guter said that when he and the other JAGs told Haynes that they needed more information, Haynes replied,
At the Defense Department, Shiffrin, the deputy general counsel for intelligence, and a career lawyer rather than a political appointee, was taken aback when Haynes showed him the order. Earlier in Shiffrin's career, at the Justice Department, his office had been in the same room where the Nazi defendants were tried, and he had become interested in the case, which he said he regarded as "one of the worst Supreme Court cases ever."
He recalled informing Haynes that he was skeptical of the Administration's invocation of Quirin.
Marine Major Dan Mori, the uniformed lawyer who has been assigned to defend David Hicks, one of the ten terror suspects in Guantánamo who have been charged, said of the commissions,
Mori said that the charges against the detainees reflected a profound legal confusion.
Under federal criminal statutes, for example, conspiring to commit terrorist acts is a crime. But, as the Nuremburg trials that followed the Second World War established, under the laws of war it is not, since all soldiers could be charged with conspiring to fight for their side.
Yet, Mori said, a charge of conspiracy,
Under attack from defense lawyers like Mori, the military commissions have been tied up in the courts almost since the order was issued. Bellinger and others fought to make the commissions fairer, so that they could withstand court challenges, and the Pentagon gradually softened its rules.
But Administration lawyers involved in the process said that Addington resisted at every turn. He insisted, for instance, on maintaining the admissibility of statements obtained through coercion, or even torture.
In meetings, he argued that officials in charge of the military commissions should be given maximum flexibility to decide whether to include such evidence.
Last month, Addington lost this internal battle. The Administration rescinded the provision allowing coerced testimony, after even the military officials overseeing the commissions supported the reform.
According to a senior Administration legal adviser who participated in discussions about the commissions, Addington remained opposed to the change.
President Bush has blamed the legal challenges for the delays in prosecuting Guantánamo detainees.
But many lawyers, even some inside the Administration, believe that the challenges were inevitable, considering the dubious constitutionality of the commissions. The Supreme Court's ruling in the Hamdan case is expected to establish whether the commissions meet basic standards of due process.
The Administration lawyer isn't sanguine about the outcome.
Meanwhile, Addington has fought tirelessly to stem reform of other controversial aspects of the New Paradigm, such as the detention and interrogation of terror suspects.
Last year, he and Cheney led an unsuccessful campaign to defeat an amendment, proposed by Senator John McCain, to ban the abusive treatment of detainees held by the military or the CIA
Government officials who have worked closely with Addington say he insists that legal flexibility is necessary, because of the iniquity of the enemy; moreover, he does not believe that the legal positions taken by the Bush Administration in the war on terror have damaged the country's international reputation.
In Addington's view, critics of
the Administration's aggressive legal policies are just political enemies of
the President.
Just a few months after the Guantánamo detention centers were established, members of the Administration began receiving reports that questioned whether all the prisoners there were really, as Secretary of Defense Donald Rumsfeld had labeled them, "the worst of the worst."
Guter said that the Pentagon had originally planned to screen the suspects individually on the battlefields in Afghanistan; such "Article 5 hearings" are a provision of the Geneva Conventions.
But the White House cancelled the hearings, which had been standard protocol during the previous fifty years, including in the first Gulf War. In a January 25, 2002, legal memorandum, Administration lawyers dismissed the Geneva Conventions as "obsolete," "quaint," and irrelevant to the war on terror. The memo was signed by Gonzales, but the Administration lawyer said he believed that "Addington and Flanigan were behind it."
The memo argued that all Taliban and Al Qaeda detainees were illegal enemy combatants, which eliminated,
Critics claim that the lack of a careful screening process led some innocent detainees to be imprisoned.
Guter, the Navy JAG, said that, before long, he and other military experts began to wonder whether the reason they weren't getting much useful intelligence from Guantánamo was that, as he puts it, "it wasn't there."
Guter, who was in the Pentagon on September 11th, said,
While the JAGs' questions about the treatment of detainees went largely unheeded, he said, the CIA was simultaneously raising similar concerns. In the summer of 2002, the agency had sent an Arabic-speaking analyst to Guantánamo to find out why more intelligence wasn't being collected, and, after interviewing several dozen prisoners, he had come back with bad news: more than half the detainees, he believed, didn't belong there.
He wrote a devastating classified report, which reached General John Gordon, the deputy national-security adviser for combatting terrorism. In a series of meetings at the White House, Gordon, Bellinger, and other officials warned Addington and Gonzales that potentially innocent people had been locked up in Guantánamo and would be indefinitely.
Addington's response, sources familiar with the meetings said, was,
A former Administration official said of Addington's response,
At the meeting, Gordon and Bellinger argued,
Addington and Gonzales dismissed this concern. The former Administration official recalled that Addington was,
The confrontation made clear, though, that Addington had been informed early that there were problems at Guantánamo.
Addington has proved deft at outmaneuvering his critics. Documents embarrassing to Addington's opponents have been leaked to the press, if not necessarily by him. A top-secret N.S.C. memo describing Powell's request to reconsider the suspension of the Geneva Conventions appeared in the Washington Times the day after it was circulated to the Secretary of Defense, the Attorney General, and the Vice-President; the article cited unnamed sources who accused Powell of "bowing to pressure from the political left."
The Administration lawyer said,
Addington chastised a Justice Department official who showed a legal opinion on the treatment of detainees to the State Department. He repeatedly directed Gonzales, the White House counsel, to keep Bellinger, the N.S.C. lawyer, out of meetings about national-security issues.
"Lip-lock" is the word Addington's old Pentagon colleague Sean O'Keefe, now the chancellor of Louisiana State University, used to describe his discretion.
The Administration lawyer said,
Several talented top lawyers who
challenged Addington on important legal matters concerning the war on
terror, including Patrick Philbin, James Comey, and Jack Goldsmith, left the
Administration under stressful circumstances. Other reform-minded government
lawyers who clashed with Addington, including Bellinger and Matthew Waxman,
both of whom were at the N.S.C. during Bush's first term, have moved to the
State Department.
He hoped to reinstate the basic standards that are specified in the Geneva Conventions. This meant the prohibition of torture, overt acts of violence, and "outrages on personal dignity, in particular humiliating and degrading treatment." Although the Vice-President's office is not part of the military chain of command, last September Addington summoned Waxman to his office and berated him.
Waxman declined to comment on the incident, but a former
colleague in the Pentagon, in whom Waxman confided, said that Addington
accused Waxman of wanting to fight the war on terror his own way, rather
than the President's way. The Army Field Manual still hasn't been revised,
and, according to those involved, Addington and his protégé Haynes remain
the major obstacles.
This was remarkable, because Shiffrin was the Pentagon lawyer in charge of supervising the N.S.A.'s legal advisers.
Shortly after September 11th, Addington and Cheney, without alerting Shiffrin, held meetings with top N.S.A. lawyers in the Vice-President's office and told them that the President, as Commander-in-Chief, had the authority to override the FISA statutes and not seek warrants from the special court.
According to the Times, Addington and Cheney pushed the N.S.A. to engage in practices that the agency thought were illegal, such as the warrantless wiretapping of American suspects making domestic calls.
General
Michael Hayden, the former head of the N.S.A., who was recently confirmed as
director of the C.I.A., has denied being pressured. Shiffrin, however,
doubted that the N.S.A. lawyers were expert enough in Article II of the
Constitution, which defines the President's powers, to argue back. He
described the Administration's legal arguments on wiretapping as "close
calls."
The scholars noted that Bush had made no effort to amend the FISA law to suit national-security needs - he simply ignored it. The Republican legal activist Bruce Fein said,
But the former high-ranking Administration lawyer suggested that the situation is more serious than an intentional infraction of the law.
Fein suggested that the only way Congress will be able to reassert its power is by cutting off funds to the executive branch for programs that it thinks are illegal. But this approach has been tried, and here, too, Addington has had the last word.
John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagon's appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congress's effort to cut off funds.
When President Bush signed the appropriations bills into law, he appended "signing statements" asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary.
The signing statement for the 2005 budget, for instance, noted that the executive branch would "construe" the spending limit only,
According to the Boston Globe, Addington has been the "leading architect" of these signing statements, which have been added to more than seven hundred and fifty laws.
He reportedly scrutinizes every bill before President Bush signs it, searching for any language that might impinge on Presidential power. These wars of words are yet another battlefront between Addington and Congress, and some constitutional scholars find them troubling. Few of the signing statements were noticed until one of them was slipped into Bush's signing of the McCain amendment.
The language was legal boilerplate,
reserving the right to construe the legislation only as it was consistent
with the Constitution. But, considering that Cheney's office had waged, and
lost, a public fight to defeat the McCain amendment democratically - the
vote in the Senate was 90-9 - the signing statement seemed sneaky and
subversive.
Richard Epstein, the University of Chicago law professor, said,
Bruce Fein argues that Addington's signing statements are "unconstitutional as a strategy," because the Founding Fathers wanted Presidents to veto legislation openly if they thought the bills were unconstitutional.
Bush has not vetoed a single bill since taking office.
David Addington is a satisfactory lawyer, Fein said, but a less than satisfactory student of American history, which, for a public servant of his influence, matters more.
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