When the historians get their mitts on the Bush presidency, the one essential book that probably will never be written is a biography of David Addington, Vice President Cheney’s former top lawyer and current chief of staff (the replacement, of course, for Scooter). Of all of the executive supremacy guys, Mr. Addington is the most prodigious, the most zealous, and the most unsung.By all accounts, his efforts to aggrandize power for the executive at the expense of the courts and the Congress have been more intense and more offensive than even those of John Yoo, Mr. Addington’s mole, if you will, in the Department of Justice’s Office of Legal Counsel (the internal legal “think tank” at the DOJ). (And let us not forget President Bush and ex-Attorney General Gonzales who enabled Mr. Addington’s walk on the wild side of civil liberties erosion.)And when that book never gets written, someone needs to devote an entire chapter to the ideological friction between Addington and Jack Goldsmith, Harvard Law professor, conservative academic luminary, former head of the OLC and a political ally of James Comey.Though this is not new news, Goldsmith’s new book is a must read for anyone studying the ideological interplay over civil liberties and the separation of powers among conservative lawyers in the early Bush administration.Goldsmith writes:
“As I absorbed the opinions, I concluded that some were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President,” Goldsmith writes, referring to Justice Department memoranda issued in the two years following the Sept. 11, 2001, attacks. “I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.”
“After 9/11, they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: 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,” Goldsmith wrote, referring to the Foreign Intelligence Surveillance Act, which governs spying by U.S. agencies within the United States.
He also describes Addington as the chief legal architect of the “Terrorist Surveillance Program,” the warrantless NSA snooping that bypassed the Foreign Intelligence Surveillance Court.The Goldsmith Addington revelations are kind of old news, but let me point out three ultra-salient points that have yet to make the coverage.First, Mr. Addington works for the vice president, proving once again that Mr. Cheney’s office has been a corrosive epicenter for counter-civil liberties policies in the Bush administration. That either shows lack of leadership on Mr. Bush’s part, or a more insidious desire in the Oval Office to cut constitutional corners in the name of “restoring” (scare quotes) executive power post Watergate. Either option sucks.Second, Jack Goldsmith is no civil liberties white knight. For the legally inclined among you, I suggest taking a gander at his 2003 article in the Harvard Law Review: Curtis A. Bradley & Jack Goldsmith, Congressional Authorization and the Use of Force, 118 HARV. L. REV. 2047, 2107 (2005). His construction of the 2001 Authorization for the Use of Military Force, or AUMF, against al Qaeda and its helpmates is awfully broad.Third, perhaps the most obnoxious thing in this whole sordid mess is the fact that Addington used his legal chops to subvert longstanding federal legal institutions. As a lawyer, and especially as a government lawyer, Mr. Addington had an ethical obligation to follow the laws and the Constitution, not to “push and push and push until some larger force makes us stop,” as Goldsmith quotes him. It’s one thing to zealously represent your client; it’s something completely other to attempt to bend or break the law in order to allow your client to engage in criminality. What Mr. Addington did, according to Goldsmith, could easily fit the bill.Finally, fourth, just take a look at the guy. Why is it that all of these ideologues look like ex-hippies? Wait, don’t answer that.And, hey, for any historian out there in the ether: hear my plea. The Addington bio. Do it.