Just in time for today’s Hamdan decision, the New Yorker has put Jane Mayer’s article on David Addington online. Addington is the chief architect of the Administration’s legal strategy in the GWOT, and the piece talks about Addington and how he came to dominate the Administration’s legal response to the 9/11 attacks. The article is not without its perspective — we’re talking the New Yorker here — but it has some interesting tidbits from folks who worked with Addington in the Administration. For example:
[A] former high-ranking lawyer for the Administration, who worked closely with Addington, and who shares his political conservatism, said that, in the aftermath of September 11th, “Addington was more like Cheney’s agent than like a lawyer. A lawyer sometimes says no.” He noted, “Addington never said, ‘There is a line you can’t cross.’” Although the lawyer supported the President, he felt that his Administration had been led astray. “George W. Bush has been damaged by incredibly bad legal advice,” he said.
Hat tip: Anderson.
The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts — and in particular, the Supreme Court — to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?
I imagine there isn’t one answer to this; “the Administration” is a “they,” not an “it.” Still, it’s an interesting question that the Mayer article touches on but I don’t think entirely answers.
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Speaking as one astonished and appalled by the account of Addington’s machinations — several of the government lawyers cut out of the decision-making process (or driven out of government service) are brilliant legal minds and were dedicated public servants — I have to think this was something like a crusade of the righteous.
Moreover, not only are Addington & Co. evidently convinced of their own infallibility, I suspect they counted on the old adage (attributed to Mr. Dooley) that the Supreme Court follows the election returns. I leave as a exercise for the reader to decide who authored those returns, at any rate for 2000.
I wonder what else Jack Goldsmith thinks of Addington?
I think that this falls into the category of “What the hell do you expect an administration to do?”
Isn’t it obvious that when you are talking about national security and waging war, and there are colorable legal arguments that can be made to support what you think are necessary actions to protect your country, you take them?
And to take the fact that there were dissenting views in the administration (Dissenting views among lawyers about what the law permits: SHOCKING!) and bathe it in a nefarious light is ridiculous.
I’m paraphrasing here, but government lawyers are acting ethically where they are making arguments that are colorable under existing law, and/or are arguing for an extension, modification, or reversal of existing law. (And if anyone wants to take a short walk down memory lane, this administration didn’t invent the argument that the president has inherent authority: “”The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes . . . and that the President may, as has been done, delegate this authority to the Attorney General . . . . It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.” Deputy Attorney General Jamie Gorelick testifying before the Senate Intelligence Committee on July 14, 1994.”)
Even if every thing that Ms. Mayer said about Mr. Addington is true, at most this administration’s legal framework has overreached. Anybody out there who has practiced law who hasn’t made a legal argument that over-reached? Please raise your hand. (And as to the fact that Mr. Addington is a “ruthless” “powerful” and “aggressive public official,” I say, again, SHOCKING that you find people like that working in the White House; I’m sure that he is the first one and that steps have been taken to ensure nobody like that ever works there again).
I think that people who find themselves “astonished and appalled by the account of Addington’s machinations” are ignorant of the history of the type of decisions that both parties have made in the White House in times of war, and have had the luxury of not being responsible for the security of our country. These are excruciating decisions and ANY administration deserves the benefit of the doubt – where there are defensible arguments to support its actions – that the actions they took were taken with the nation’s best interests in mind. Whether you agree with them or not.
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MJ’s paean to David Addington glibly ignores the fundamental thesis of the Mayer profile: that Addington’s supposedly “defensible” and “colorable” theories long predated the attacks of 9/11. It is hardly an “excruciating” decision to arrogate unlimited power to the Executive when you’ve been itching for decades for an excuse to do so.
It also makes your supposedly “excruciating” decision a whole lot less excruciating if you simply cut out of the loop any Executive branch attorney, no matter how senior, whose views might prove an obstacle. So please spare Orin’s readers the implication that Addington & Co. reached their legal conclusions only after careful, thorough consideration of contrary arguments.
Finally, in case anyone is duped by MJ’s citation to the Gorelick testimony, by all means stroll a little further down memory lane to recall exactly what is so extreme about the current Administration’s legal claims. (Hint: “inherent authority” in the absence of a duly enacted statute — the context of Gorelick’s statement — is narrower than the Addington doctrine roundly rejected in Hamdan. Those who cannot learn from Youngstown are doomed, it seems, to have it repeated.)
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