Who Is David Addington?

BLAKE ESKIN: Most people have never heard of David Addington. Why is he important enough to be the subject of such an in-depth piece?

JANE MAYER: Addington has been the single most influential legal thinker, according to other Administration lawyers, in shaping the Bush Administration’s legal response to the terrorist attacks of September 11, 2001. He has left almost no paper trail, and has avoided all public scrutiny—as far as I know, he’s granted no interviews to reporters, and he even avoids having his photo taken by the press. It seemed important to me to hold the creator of these policies accountable, so that the public could understand better who is behind them and how he thinks.


This is a fascinating read and it’s just a Q&A with the author of the story. The story itself is sadly not available online.

Isn’t he Bruce Willis’s charactor from that TV show he did with Cybil Shepard?

The character in Moonlighting was David Addison.

I know this world is killing you.
My aim is true.

Blame it on Cain.

I wanna know about the mystery dance!

Damn MSM won’t cover it. Are they scared?

A related story out of the AP today. Note Specter, a Republican, standing up to the administration. Nice to see someone with intestinal fortitude on either side these days.

WASHINGTON (June 27) – A bill becomes the rule of the land when Congress passes it and the president signs it into law, right?

Not necessarily, according to the White House. A law is not binding when a president issues a separate statement saying he reserves the right to revise, interpret or disregard it on national security and constitutional grounds.

That’s the argument a Bush administration official is expected to make Tuesday before the Senate Judiciary Committee, chaired by Arlen Specter, R-Pa., who has demanded a hearing on a practice he considers an example of the administration’s abuse of power.

“It’s a challenge to the plain language of the Constitution,” Specter said in an interview with The Associated Press. “I’m interested to hear from the administration just what research they’ve done to lead them to the conclusion that they can cherry-pick.”

Apparently, enough to challenge many more statutes passed by Congress than any other president, Specter’s committee says. The White House does not dispute that, but notes that Bush is hardly the first chief executive to issue them.

“Signing statements have long been issued by presidents, dating back to Andrew Jackson all the way through President Clinton,” White House spokeswoman Dana Perino said Monday.

Specter’s hearing is about more than the statements. He’s been compiling a list of White House practices he bluntly says could amount to abuse of executive power – from warrantless domestic wiretapping program to sending officials to hearings who refuse to answer lawmakers’ questions.

But the session also concerns countering any influence Bush’s signing statements may have on court decisions regarding the new laws. Courts can be expected to look to the legislature for intent, not the executive, said Sen. John Cornyn, R-Texas., a former state judge.

“There’s less here than meets the eye,” Cornyn said. “The president is entitled to express his opinion. It’s the courts that determine what the law is.”

But Specter and his allies maintain that Bush is doing an end-run around the veto process. In his presidency’s sixth year, Bush has yet to issue a single veto that could be overridden with a two-thirds majority in each house.

Instead, he has issued hundreds of signing statements invoking his right to interpret or ignore laws on everything from whistleblower protections to how Congress oversees the Patriot Act.

“It means that the administration does not feel bound to enforce many new laws which Congress has passed,” said David Golove, a New York University law professor who specializes in executive power issues. “This raises profound rule of law concerns. Do we have a functioning code of federal laws?”


I picked the New Yorker up last night and read this article today on the bus. Really good stuff.

The full article is online now.


Talk about your silver bullet explanation.

The Gitmo Fallout


July 17, 2006 issue - David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bowker was part of a Bush administration “working group” assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to “find the legal equivalent of outer space”—a “lawless” universe. As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

In January 2002, Bowker and other State Department lawyers pushed back. After seeing a Justice Department memo arguing that Qaeda and Taliban prisoners did not even deserve basic protections under the Geneva Conventions, they warned that the administration was inviting an enormous backlash, both from U.S. courts and foreign allies. It would also, they feared, jeopardize President George W. Bush’s plans to try such prisoners in specially created military courts. “Even those terrorists captured in Afghanistan … are entitled to the fundamental humane treatment standards of … the Geneva Conventions,” William Howard Taft IV, the State Department legal counselor and Bowker’s boss, wrote in a Jan. 23, 2002, memo obtained by NEWSWEEK. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions—known as Common Article 3—which “provides the minimal standards” of treatment that even “terrorists captured in Afghanistan” deserve.

But in his ruling, Justice Stevens took a much narrower view of the president’s wartime powers, rejecting the administration’s argument that military commissions of the kind Bush had created were covered by the resolution. Now other antiterror programs that the president has justified by invoking the same congressional resolution might be vulnerable to serious legal challenge. Some legal scholars and current and former administration officials believe the case could undermine the secret foreign detention centers and the NSA eavesdropping program, two cornerstones of the terror war. “This is an extremely damaging decision for presidential power,” says a former senior administration lawyer, who asked for anonymity owing to his intimate involvement in the legal wrangling over prisoner treatment. “And it was largely a self-inflicted wound.” The bitter irony: an administration determined to expand executive power may have caused a serious contraction.

Another possible side effect is that other countries, emboldened by the ruling, could use the case to justify efforts to bring war-crimes charges against CIA officers, U.S. service members and traveling government officials who had a hand in authorizing or carrying out harsh treatment of prisoners. Conceivably, those who violate provisions of Article 3—which mandate humane treatment for all captured prisoners—could also be criminally prosecuted by future administrations under a U.S. law known as the War Crimes Act. “This has opened up a can of worms,” says Sen. Lindsay Graham, a South Carolina Republican. “You could have a situation if we don’t bring some restraint where anybody who has done anything to an Al Qaeda suspect that’s harsh could be prosecuted.” Bowker says he and other State Department lawyers specifically warned about just such a scenario during the early debates. “The implications of this—for potentially being arrested and tried in other countries—is certainly a little scary,” says Ted Olson, the former solicitor general.

The court decision’s possible effects have set off an intense debate within the administration over how to respond. One camp, headed by national-security adviser Stephen Hadley and Secretary of State Condoleezza Rice, want to use the decision as the basis for a wide-ranging “fix” that would accept a role for Congress and the courts on detainee issues. That would, at a minimum, require Congress to authorize military commissions under new rules that provide greater protections for the accused—and establish some standards for the treatment and interrogation of terror suspects. (It could also lead to a shutdown of Guantánamo—a goal President Bush has moved toward in recent weeks.)

But hard-liners—led by Addington, now Vice President Cheney’s chief of staff—are fiercely resisting. They, along with some congressional Republicans, want to nullify the court ruling by rewriting portions of the Uniform Code of Military Justice and granting the president the powers the court rejected.


chilling…to the bone

While this fits in elsewhere, and indeed is the basis for a thread on Ashcroft (who does come out looking quite good) I thought I’d tie the knot in the Addington thread:

JAMES B. COMEY, the straight-as-an-arrow former No. 2 official at the Justice Department, yesterday offered the Senate Judiciary Committee an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source. The episode involved a 2004 nighttime visit to the hospital room of then-Attorney General John D. Ashcroft by Alberto Gonzales, then the White House counsel, and Andrew H. Card Jr., then the White House chief of staff. Only the broadest outlines of this visit were previously known: that Mr. Comey, who was acting as attorney general during Mr. Ashcroft’s illness, had refused to recertify the legality of the administration’s warrantless wiretapping program; that Mr. Gonzales and Mr. Card had tried to do an end-run around Mr. Comey; that Mr. Ashcroft had rebuffed them.

Mr. Comey’s vivid depiction, worthy of a Hollywood script, showed the lengths to which the administration and the man who is now attorney general were willing to go to pursue the surveillance program.

Only in the face of the prospect of mass resignations – Mr. Comey, FBI Director Robert S. Mueller III and most likely Mr. Ashcroft himself – did the president back down.

The dramatic details should not obscure the bottom line: the administration’s alarming willingness, championed by, among others, Vice President Cheney and his counsel, David Addington, to ignore its own lawyers. Remember, this was a Justice Department that had embraced an expansive view of the president’s inherent constitutional powers, allowing the administration to dispense with following the Foreign Intelligence Surveillance Act. Justice’s conclusions are supposed to be the final word in the executive branch about what is lawful or not, and the administration has emphasized since the warrantless wiretapping story broke that it was being done under the department’s supervision.

Now, it emerges, they were willing to override Justice if need be. That Mr. Gonzales is now in charge of the department he tried to steamroll may be most disturbing of all.


Patrick Philbin is an unlikely victim of the war on terror. In fact, he’s one of its chief legal architects.

Philbin’s conservative bona fides are unimpeachable. Law clerk for federal appeals judge Laurence Silberman, the ideological godfather of scores of conservative lawyers, then for Supreme Court Justice Clarence Thomas.

As a Justice Department official, he wrote a memo in November 2001 concluding that the president had the “inherent authority” to establish military commissions to try detainees. Wrong, the Supreme Court eventually said.

Philbin co-authored a memo the next month finding that federal courts had no power to hear habeas corpus petitions by Guantanamo Bay detainees. Wrong again, said the Supreme Court.

This wasn’t merely a lawyer zealously representing a client. Philbin, now in private practice, urged Congress in March not to close Guantanamo and transfer detainees here. Prisoners then “arguably will have constitutional rights” that they will seek to assert in court, he warned.

Philbin seemed like a shoo-in to become deputy solicitor general. But even he was not a true enough believer for the administration’s executive-power zealots, chiefly David S. Addington, then counsel and now chief of staff to Vice President Cheney.

His fault? Manning the legal barricades against the administration’s efforts to coerce Attorney General John Ashcroft to approve its extralegal warrantless wiretapping. Philbin was in Ashcroft’s hospital room in 2004 when Alberto Gonzales and then-White House chief of staff Andrew Card arrived for the Wednesday Night Ambush.

Former deputy attorney general James Comey referred to Addington’s revenge in his Senate testimony last week by mentioning “one particular senior staffer of mine . . . had been blocked from promotion, I believed, as a result of this particular matter . . . That was Mr. Philbin.”

Philbin’s out of government now. So, too, aside from FBI Director Robert Mueller, are the rest of those who stood up to the administration.

Addington and Gonzales remain. That should chill anyone who believes in the rule of law, not rule by presidential fiat.


According to Comey, the hospital visit was preceded by a March 9, 2004, meeting at the White House on the Justice Department objections. It was attended by Cheney; Gonzales; Card; Cheney’s counsel then, David S. Addington; and others, Comey said.

Comey also named eight Justice Department officials who were prepared to quit if the White House had not backed down, including FBI Director Robert S. Mueller III, current U.S. Attorney Chuck Rosenberg of Alexandria and Jack Goldsmith, who headed the Office of Legal Counsel and led an internal legal review of the surveillance program.

Comey said that the review “focused on current operations during late 2003 and early 2004, and the legal basis for the program.” He declined to answer detailed questions about the program or the review, citing restrictions on classified information.


This does beg the question, what were these guys doing up until this point? What did this operation really entail?

Gonzales lacked experience in many federal laws or national security matters, and many of his colleagues described him as a relatively passive participant in the sometimes acrimonious discussions that were driven – and often won in the months after Sept. 11-- by Vice President Richard Cheney’s ideologically hard-line legal counsel, David Addington.

Gonzales was “unassuming, pleasant, and quiet,” said a former official who sat in interagency meetings on terrorism matters. “He never made an impression on me.” The suspicion that Gonzales served as a passive or disconnected figurehead while other, more politically-minded officials decided events would later resurface among lawmakers in the controversy over the prosecutor firings.


In the Bush administration, however, the most important legal-policy decisions in the war on terror before Goldsmith’s arrival were made not by the Office of Legal Counsel but by a self-styled “war council.” This group met periodically in Gonzales’s office at the White House or Haynes’s office at the Pentagon. The members included Gonzales, Addington, Haynes and Yoo. These men shared a belief that the biggest obstacle to a vigorous response to the 9/11 attacks was the set of domestic and international laws that arose in the 1970s to constrain the president’s powers in response to the excesses of Watergate and the Vietnam War. (The Foreign Intelligence Surveillance Act of 1978, for example, requires that executive officials get a warrant before wiretapping suspected enemies in the United States.) The head of the Office of Legal Counsel in the first years of the Bush administration, Jay Bybee, had little experience with national-security issues, and he delegated responsibility for that subject matter to Yoo, giving him the authority to draft opinions that were binding on the entire executive branch.

Yoo was a “godsend” to a White House nervous about war-crimes prosecutions, Goldsmith writes in his book, because his opinions reassured the White House that no official who relied on them could be prosecuted after the fact. But Yoo’s direct access to Gonzales angered his boss, Attorney General John Ashcroft, according to Goldsmith. (Neither Ashcroft nor Gonzales responded to requests for interviews for this article.) Ashcroft, Goldsmith says, felt that Gonzales and the war council were usurping legal-policy decisions that were properly entrusted to the attorney general, such as the creation of military commissions, which Gonzales supported and Ashcroft never liked.

The matter came to a head in the fall of 2003, when Bybee left the Office of Legal Counsel and Gonzales suggested Yoo as a candidate to lead it. Ashcroft rejected the suggestion. Yoo then recommended his friend Goldsmith to the White House as a suitable alternative. Goldsmith interviewed with Ashcroft at the Justice Department and with Gonzales and Addington at the White House. In his interview with Addington and Gonzales, Goldsmith recalls talking about the dangers of international law and the importance of military commissions. He got the job.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” (Philbin declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the “biggest presence in the room — a large man with large glasses and an imposing salt-and-pepper beard” who was “known throughout the bureaucracy as the best-informed, savviest and most conservative lawyer in the administration, someone who spoke for and acted with the full backing of the powerful vice president, and someone who crushed bureaucratic opponents.” When Goldsmith presented his analysis of the Geneva Conventions at the White House, Addington, according to Goldsmith, became livid. “The president has already decided that terrorists do not receive Geneva Convention protections,” Addington replied angrily, according to Goldsmith. “You cannot question his decision.” (Addington declined to comment on this and other details concerning him in this article.)

Goldsmith then explained that he agreed with the president’s determination that detainees from Al Qaeda and the Taliban weren’t protected under the Third Geneva Convention, which concerns the treatment of prisoners of war, but that different protections were at issue with the Fourth Geneva Convention, which concerns civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith told me that he has checked his recollections of this and other meetings with at least one other participant or with someone to whom he described the meetings soon after.)

Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. “If you rule that way,” Addington exclaimed in disgust, Goldsmith recalls, “the blood of the hundred thousand people who die in the next attack will be on your hands.”

Goldsmith puts the bulk of the responsibility for the excesses of the Office of Legal Counsel on the White House. “I probably had a hundred meetings with Gonzales, and there was only one time I was talking about a national-security issue when Addington wasn’t there,” Goldsmith told me. “My conflicts were all with Addington, who was a proxy for the vice president. They were very, very stressful.”

Not long before Goldsmith left, the Supreme Court approved in June 2004, in the Hamdi case, the detention power itself but put some modest restrictions on the administration’s ability to detain citizens without trial. Afterward, Gonzales, Addington, Goldsmith and others, including the deputy solicitor general, Paul Clement, met again, Goldsmith recalls, and he and Clement again proposed going to Congress to put the administration’s legal strategy on a more sound footing. Once again, Goldsmith told me, the advice was ignored, and the White House continued to operate as if it assumed it could avoid a strong rebuke from the Supreme Court.

That rebuke finally arrived, however, last year in the Hamdan case, when the Supreme Court rejected the administration’s claim that it could try suspected terrorists in military commissions created without Congressional approval. In a further blow to the administration, the court held that the legal protections of “common article 3” of the Geneva Conventions, which contains minimal protections for detainees in wartime, also applied in the war against Al Qaeda. Goldsmith says he believes this ruling was “legally erroneous” but “hugely consequential.” It provided detainees at Guantánamo with more rights than the administration had ever acknowledged, and it implied that the War Crimes Act might be used to prosecute administration officials for their treatment of detainees.

But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes. Goldsmith’s first experienced this extraordinary concealment, or “strict compartmentalization,” in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.’s inspector general to see a copy of the Office of Legal Counsel’s legal analysis supporting the secret surveillance program. “Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department’s legal analysis of what N.S.A. was doing,” Goldsmith writes.

Goldsmith also witnessed perhaps the most well-known confrontation over the administration’s aggressive tactics: the scene at Ashcroft’s hospital bed on March 10, 2004, when Gonzales and Andrew Card, the White House chief of staff, visited the hospital to demand that the ailing Ashcroft approve, over Goldsmith and Comey’s objections, a secret program that was about to expire. (Goldsmith refuses to identify the program, but Robert S. Mueller III, the F.B.I. director, has publicly indicated it was the terrorist surveillance program.) As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.

Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”

After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”

In Goldsmith’s view, an indifference to the political process has ultimately made Bush a less effective wartime leader than his greatest predecessors. Surprisingly, Bush, who is not a lawyer, allowed far more legalistic positions in the war on terror to be adopted in his name, without bothering to try to persuade Congress and the public that his positions were correct. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith told me. “It’s hard to know how he would know.”

Also, the New Yorker story about Addington is no longer an abstract but the whole 11 page essay.

Edit: For some reason relinking the story won’t work. Try the link a few posts down from the top of this thread.

The link seems broken. http://www.newyorker.com/archive/2006/07/03/060703fa_fact1
works for me.