And, furthermore...

more from the same story. It's a loooong story. Fascinating.

The New Yorker: Fact:

"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 “a legitimate frustration with abuses of power and irresolution by the legislative branch.” 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 “the President has the Constitutional and statutory authority to withhold notifying Congress of covert actions under rare conditions.” And it condemned “legislative hostage taking,” noting that “Congress must realize . . . that the power of the purse does not make it supreme” in matters of war. In his December interview with reporters, Cheney proudly cited this document. “If you want reference to an obscure text, go look at the minority views that were filed in the Iran-Contra committee, the Iran-Contra report, in about 1987,” he said. “Part of the argument was whether the President had the authority to do what was done in the Reagan years.”

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, “unlike with Dick, I never saw much of a sense of humor. Cheney can be witty and funny. David is sober. I didn’t see him at social events much.” But, he added, “Dick wasn’t looking for friends at work. He was looking for performance. And David delivers. He’s efficient and dedicated. He’s a doer.” He went on, “Cheney’s not a lawyer, so he would defer to David on the law.”

[ . . . ]

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: “There were thousands of bereaved American families. Everyone was expecting additional attacks. The only planes in the air were military. At a moment like that, there’s an intense focus on responsibility and accountability. Preventing another attack should always be within the law. But if you have to err on the side of being too aggressive or not aggressive enough, you’d err by being too aggressive.”

Berry said that Addington felt this keenly. “I’ve talked to David about this a little. Psychologically, it’s really taxing to read every day not about one or two but about a dozen, or two dozen, legitimate reports about efforts to take out U.S. citizens. . . . There’s a little bit of a bunker mentality that set in among some of the national-security-policy officials after 9/11.”

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: “There was a consensus that we had to move from retribution and punishment to preëmption and prevention. Only a warfare model allows that approach.”

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 “all of us felt under a great deal of pressure to be willing to consider even the most extraordinary proposals. The C.I.A., the N.S.C., the State Department, the Pentagon, and the Justice Department all had people there. Addington was particularly strident. He’d sit, listen, and then say, ‘No, that’s not right.’ He was particularly doctrinaire and ideological. He didn’t recognize the wisdom of the other lawyers. He was always right. He didn’t listen. He knew the answers.” The details of the discussion are classified, Shiffrin said, but he left with the impression that Addington “doesn’t believe there should be co-equal branches.” Another participant recalled, “If you favored international law, you were in danger of being called ‘soft on terrorism’ by Addington.” 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, “There you go again, giving away the President’s power.”

[ . . . ]

On September 25th, the Office of Legal Counsel issued a memo declaring that the President had inherent constitutional authority to take whatever military action he deemed necessary, not just in response to the September 11th attacks but also in the prevention of any future attacks from terrorist groups, whether they were linked to Al Qaeda or not. 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 power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of the Commander-in-Chief is assigned solely to the President.” 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 is beyond question that the President has the plenary Constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001.” It concluded, “These decisions, under our Constitution, are for the President alone to make.”

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 C.I.A. 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. “Addington’s fingerprints were all over these policies,” said Wilkerson, who, as Powell’s top aide, later assembled for the Secretary a dossier of internal memos detailing the decision-making process.

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 order proclaimed a state of “extraordinary emergency,” and announced that the rules for the military commissions would be dictated by the Secretary of Defense, without review by Congress or the courts. 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 “it is not practicable” to apply “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” 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.

[ . . . ]

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. “But we were marginalized,” he said. “We were warning them that we had this long tradition of military justice, and we didn’t want to tarnish it. The treatment of detainees was a huge issue. They didn’t want to hear it.” 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, “No, you don’t.” (Haynes’s office offered no comment.)

[ . . . ]

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, “It was a political stunt. The Administration clearly didn’t know anything about military law or the laws of war. I think they were clueless that there even was a U.C.M.J. and a Manual for Courts-Martial! The fundamental problem is that the rules were constructed by people with a vested interest in conviction.”

Mori said that the charges against the detainees reflected a profound legal confusion. “A military commission can try only violations of the laws of war,” he said. “But the Administration’s lawyers didn’t understand this.” 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 “is the only thing there is in many cases at Guantánamo—guilt by association. So you’ve got this big problem.” He added, “I hope that nobody confuses military justice with these ‘military commissions.’ This is a political process, set up by the civilian leadership. It’s inept, incompetent, and improper.”

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. “Torture isn’t important to Addington as a scientific matter, good or bad, or whether it works or not,” the Administration lawyer, who is familiar with these debates, said. “It’s more about his philosophy of Presidential power. He thinks that if the President wants torture he should get torture. He always argued for ‘maximum flexibility.’ ”

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. “He wanted no changes,” the lawyer said. “He said the rules were good, right from the start.” Addington accused officials who were trying to reform the rules of “giving away the President’s prerogatives.”

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. “It shows again that Addington overreached,” he said.

[ . . . ]

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, “The way Addington works, he controls the flow of information very tightly.” 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. “He’s like Cheney,” O’Keefe said. “You can’t get anything out of him with a crowbar.” The Administration lawyer said, “He’s a bully, pure and simple.”

[ . . . ]

Last fall, Richard Shiffrin, the Pentagon lawyer who was left out of the Administration’s initial discussions of the military commissions, learned from the Times about the Administration’s decision to sanction warrantless domestic electronic surveillance by the National Security Agency. This was remarkable, because Shiffrin was the Pentagon lawyer in charge of supervising the N.S.A.’s legal advisers. “It was exceptional that I didn’t know about it—extraordinary,” Shiffrin said. “In the prior Administration, on anything involving N.S.A. legal issues I’d have been made aware. And I should have been in this one.”

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.”

Others are more critical. Fourteen prominent constitutional scholars, representing a range of political views, recently wrote an open letter to Congress, claiming that the N.S.A. surveillance program “appears on its face to violate existing law.” 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, “What makes this so sinister is that the members of this Administration have unchecked power. They don’t care if the wiretapping is legal or not.” But the former high-ranking Administration lawyer suggested that the situation is more serious than an intentional infraction of the law. “It’s not that they think they’re skirting the law,” he said. “They think that this is 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 “in a manner consistent with the President’s constitutional authority as Commander-in-Chief, including for the conduct of intelligence operations.”

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.

Earlier this month, the American Bar Association voted to investigate whether President Bush had exceeded his constitutional authority by reserving the right to ignore portions of laws that he has signed. Richard Epstein, the University of Chicago law professor, said, “What’s frightening to me is that this Administration is always willing to push the conventions to the limits—and beyond. With his signing statements, I think the President just goes too far. If you sign these things with a caveat, do the inferior officers follow the law or the caveat?”

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. “It’s part of the balancing process,” Fein said. “It’s about accountability. If you veto something, everyone knows where you stand. But this President wants to do it sotto voce. He wants to give the image that he’s accommodating on torture, and then reserves the right to torture anyway.”

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. “If you read the Federalist Papers, you can see how rich in history they are,” he said. “The Founders really understood the history of what people did with power, going back to Greek and Roman and Biblical times. Our political heritage is to be skeptical of executive power, because, in particular, there was skepticism of King George III. But Cheney and Addington are not students of history. If they were, they’d know that the Founding Fathers would be shocked by what they’ve done.”