OrinKerr.com

David Addington, the New Paradigm, and the Hamdan Case

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.