The Volokh Conspiracy - Addington, OLC, and Overreaching

There's a pretty interesting article in the latest U.S. News about David Addington, Cheney's right-hand man. I've heard scary stories about him from a number of friends in the White House and various departments -- basically, that he belittles and denigrates those whom he regards as insufficiently hard-line about presidential power, and is ruthless. I find these stories scary because those friends are more supportive of presidential power than most anyone else in the world, and they didn't go far enough for him.

Anyway, the article treads lightly on those stories, but it highlights the ways that the Administration (often through Addington) was able to get very broad advocacy documents from the Department of Justice's Office of Legal Counsel. This isn't new -- we've known about the extreme OLC opinions for a long time -- but the article makes an important point that is often lost in the fray: in most cases the Adminisration didn't need those broad opinions in order conduct the war on terror as it thought appropriate. A narrower, more reasonable construction would have given them the authority they actually planned to exercise. So not only were the opinions legally shaky (at best), but they were also unnecessary (and, it seems, politically stupid).

(Full disclosure: I was hired at OLC by another figure who was prominently mentioned in the article, Tim Flanigan, and some have put him in the same category as Addington. I am fond of Tim and have no pretensions of objectivity when it comes to him.)

I'm not sure any of this matters to Addington, but as an OLC alum I find it saddening. In my opinion, an OLC that simply goes along with everything the President wants is doing him a disservice; their job is -- or should be -- to give careful advice that lets the President know the sorts of legal obstacles his policies would face. I believe that the President should feel free to ignore OLC's advice in most cases (I, too, am a believer in a strong presidency); but I think OLC should give that unwelcome advice in the first place.

Here, OLC (and other potential dampeners on Cheney and Addington's enthusiasms) served to fuel the fire -- at a cost to the rule of law and (obviously less importantly) the integrity of entities like OLC. My sense is that Jack Goldsmith helped to undo both kinds of damage, but rebuilding credibility takes a lot longer than destroying it.

	[Stuart Benjamin, May 22, 2006 at 9:55pm] Trackbacks Addington, OLC, and Overreaching There's a pretty interesting article in the latest U.S. News about David Addington, Cheney's right-hand man. I've heard scary stories about him from a number of friends in the White House and various departments -- basically, that he belittles and denigrates those whom he regards as insufficiently hard-line about presidential power, and is ruthless. I find these stories scary because those friends are more supportive of presidential power than most anyone else in the world, and they didn't go far enough for him. Anyway, the article treads lightly on those stories, but it highlights the ways that the Administration (often through Addington) was able to get very broad advocacy documents from the Department of Justice's Office of Legal Counsel. This isn't new -- we've known about the extreme OLC opinions for a long time -- but the article makes an important point that is often lost in the fray: in most cases the Adminisration didn't need those broad opinions in order conduct the war on terror as it thought appropriate. A narrower, more reasonable construction would have given them the authority they actually planned to exercise. So not only were the opinions legally shaky (at best), but they were also unnecessary (and, it seems, politically stupid). (Full disclosure: I was hired at OLC by another figure who was prominently mentioned in the article, Tim Flanigan, and some have put him in the same category as Addington. I am fond of Tim and have no pretensions of objectivity when it comes to him.) I'm not sure any of this matters to Addington, but as an OLC alum I find it saddening. In my opinion, an OLC that simply goes along with everything the President wants is doing him a disservice; their job is -- or should be -- to give careful advice that lets the President know the sorts of legal obstacles his policies would face. I believe that the President should feel free to ignore OLC's advice in most cases (I, too, am a believer in a strong presidency); but I think OLC should give that unwelcome advice in the first place. Here, OLC (and other potential dampeners on Cheney and Addington's enthusiasms) served to fuel the fire -- at a cost to the rule of law and (obviously less importantly) the integrity of entities like OLC. My sense is that Jack Goldsmith helped to undo both kinds of damage, but rebuilding credibility takes a lot longer than destroying it.