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.
I'm glad to know that the Fed-Soc is back to being the intellectual wing of the GOP. I thought for sure we were doomed to forever be tagged by the media as some sort of lawyer's version of Skull and Bones. ;-)
"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."
Unsourced character assassination based on rumors? Sounds like the New York Times.
I welcome Prof. Benjamin's insight, but part of his post seems to me to echo this part of the article:One thing is very clear about Addington: he's not dumb.
So if he's arguing for interpretations broader than needed for legitimate purposes, may it not be exactly because he has other purposes in mind?
(Recycling my blog post on the U.S. News article, where I was so pleased to dub Addington the éminence grisaille of the Bush Administration that I now share it with you. Please, please--hold your applause.)
He's a business man. And he runs the nation like it's a business and he's CEO. That's why he automatically expects and assumes loyalty to the company. He just acts like everyone is expected to be on board and pulling for the success of the product line. And we can dispense with all those legal formalities. Corporations run better on an informal, internal basis. Why not the nation?
And like most CEO's, he regards the legal department as more of a nuisance than a help. Lawyers are deal-breakers. They're the people who will tell you that it's a bad idea, no matter what the idea is. If we could just cut them out of the loop, this whole thing would run much more smoothly. Bush doesn't want advice. He wants can-do people.
Same as Ken Lay and Jeff Skilling.
Sigh. SB has heard authoritative comments on Addington. He doesn't wish to embarrass his friends by naming them, but on the other hand, he has unusual "inside information" which is of benefit to us in evaluating the U.S. News article. Is he really supposed to keep it to himself? It's a blog, fercryinoutloud.
Who'd the article cite for Addington's supposedly lamblike qualities? Mary Matalin? Hey, she's married to James Carville; obviously, she sets a low bar.
I've known Tim for some 35 years--personally, not professionally--and I find it hard to believe that he's 'ruthless', 'extreme', or 'hard-line'. He's one of the kindest, most intelligent and thoughtful people I know--the character assassintation on Wikipedia notwithstanding. ..bruce..
It's hard to imagine anyone who has destroyed the Rule of Law here more than he during this administration. It will be interesting to see how his role plays out historically.
He scares me.
Strange but true. The people most likely to think lawyers are supposed to "support" their client's goals when rendering advice are also the ones most likely to criticize lawyers for being shills/doing anything for a buck.
Addington is merely the flip side of Harriet Miers. The perfect lawyer for an administration that has nothing but contempt for the law.
I'm surprised at Berenson's distancing of the Federalist Society from the Addington style of Bush lawyering. Wasn't Leonard Leo Miers' big pusher? I lost interest in the Fed Soc many years ago when it became clear to me, at least, that it was nothing more than an administration echo chamber. Funny how now at 30% or whatever they're re-discovering their limited government principles. Just in time for President Clinton II.
Let's get a sense of proportion. Tamerlane was ruthless. Stalin was ruthless. This is just office politics among desk jockeys.
I don't really care how or why GWB is rediscovering the idea of limited government, I just hope that he really is returning to that mold. But a powerful executive branch and a limited government seems to be mutually exclusive ideas.
The Federalist Society has always been a mix of conservatives and libertarians, and within conservatives there are those who have been for more presidential power and those who have been for less. Consider Federalist Society icons Scalia and Thomas, for instance, and how they differed from each other in Hamdi; such disagreements are reflected among less illustrious Federalist Society members, too.
As to Bush's popularity ratings, I don't quite see why they should affect Federalists' views of presidential power. For obvious constitutional reasons, Bush isn't running in 2008; and conservatives have long known that a Democratic presidency could be a few years away, just as liberals have long known the same about a Republican presidency. The principle that one should be careful about giving power to officials you trust because the power may soon be wielded by officials you distrust has long been well understood by everyone. The question is to what extent extra power is nonetheless needed, despite the risks that it might be abused. And the answer to the question, whatever you think it might be, doesn't much depend on Bush's popularity ratings.
Anyway, Irensaga postulates that Bush runs his Administration like a CEO. But I'd suggest that by favoring personal loyalty over objective advice based on expertise, Bush is embracing an approach to governance that any decent CEO would try desperately to avoid. Indeed, the inevitable outcome of such an approach will be to produce an increasingly ineffective and incompetent government. Of course, Bush didn't exactly prove himself to be an effective business man, so perhaps it is not too surprising that he has adopted such a poor "business model" for governing.
And that principle does extend to the lawyers. Forcing the OLC into the role of writing legal briefs in support of the a priori (note: Latin phrase) positions of the Administration, as opposed to seeking their objective evaluations of legal issues, only ensures that the Administration ends up not understanding the law. Of course, their general strategy is to avoid any sort of review (in the courts or Congress) of the legality of their actions, and thus any enforcement of the relevant laws. So, one might think that if successful in these efforts, they do not actually need to understand the laws.
But aside from the risk that their efforts to avoid formal review of the legality of their actions and enforcement of the laws will fail, this strategy also overlooks all the informal ways in which lawbreaking tends to lead to harm to the lawbreakers even in the absence of formal enforcement. Not the least is the fact that encouraging a reckless disregard for the law is bound to lead to all sorts of chaotic, self-serving, and short-sighted behavior at all levels of government, as people adopt the meme that formal rules are merely obstacles to be ignored whenever enforcement seems avoidable.
So, again, this approach is bound to produce not only widespread lawbreaking, but also widespread incompetence. And incompetence, at least, usually becomes apparent eventually to the public, and will eventually be judged harshly. Which, I would suggest, is exactly what has happened.
In the Federalist Society circles with which I was familiar, any criticism of The President was completely off bounds. Every day, in every way, things were better with Bush.
Oh, sure, they usually invite someone for each panel who would politely disagree, but these are mere props. It is no coincidence that so many FedSoc members got nice jobs in the Administration or somewhere on the career GS scale. The FedSoc became like a kind of job bank for the administration. Socially, it was all about social climbing and with Bush in the White House, you don't get far in FedSoc circles asking questions. Since I was not interested in seeking a job with the government, and wasn't impressed by Bush, the FedSoc quickly lost its appeal for me.
The icing on the cake was Mr. Leo going to the mat for Harriet Miers. Legal conservatives from across the right side of the spectrum, be it family values types or libertarians, were horrified by the nomination. By all rights, a group truly fitting the FedSoc's description would have at least offered some critical debate (of course they don't endorse of oppose nominees). Instead, they just made it obvious that they had gotten too close to the administration. Between the jobs and titles and perks feeling oh so important to rub elbows with the powerful, and their principles, power won every time the last 7 miserable years.
The liberal caricature of the FedSoc as some kind of shadowy group wielding power over the Administration has it completely backwards. It is the Administration that has co-opted the FedSoc.
But two things are striking:
First, several prominent conservative/liberatarian/Republican legal academics and other prominent figures, such as Richard Epstein, William van Alstyne, Curt Bradley, Bruce Fein, Mike Ramsey, and the Cato Institute (not to mention Stuart B.), have strongly criticized the Yoo/Addington theories publicly (and folks such as Jack Goldsmith, Jim Comey, Alberto Mora -- and many others -- have done so within the Administration).
Second, it is virtually impossible to find serious conservative academics, and other Federalist Society types, to offer a serious *defense* of the Cheney/Addington/Yoo theories. Virtually no one -- in academe, in Congress, or in the public eye -- has defended the Administration's statutory analysis on torture, the UCMJ, FISA, etc. And there are very few serious defenses of their Article II arguments, either (with minor exceptions from nonacademics defending certain aspects of it, such as the Bryan Cunninngham letter, Sen. Roberts's memo, and scattered speeches by Pat Philbin and others).
In this respect, the reaction from the right, including from the Federalist Society, speaks volumes about the Cheney/Addington/Yoo theories.
True, Medis. I would add that it seems Irensaga meant just that, given the Lay and Skilling examples.
Fair enough, although I might add that it seemed to me that Irensaga was implying that the relevant attributes were typical of CEOs. I actually don't think that most CEOs are that lawless or incompetent--again, precisely because such attributes are generally bad for business in the long run.
I don't think this statement ought to pass unchallenged. On what is it based? My impression is that the Adminstration recognizes few limits on its actions.
I think the point is that the administration team asserted authority for the sake of asserting authority, not just to achieve the policy result. For example, Congress likely would have provided statutory authority for the NSA wiretapping, but the White House wanted to advance the Addington/Yoo theory of unfettered Article II authority.
That is not inconsistent with your your own observation "that the Adminstration recognizes few limits on its actions."
Of course, the administration is willing to make its claim anywhere but inside a courtroom.
Boss is a jerk. That is just terrible. Maybe George Voinovich will stand up in the Senate and cry for them. Poor Babies.
Yes-men will ruin a corporation very quickly. Like the CEO who suggested, as an aside, that perhaps the amount of employee Christmas bonuses should be discussed at the next budget meeting. Weeks later, he was shocked to hear the staff was in open revolt because their Christmas bonuses had been cancelled.
But a corporation runs differently than a governmental entity. Corporations may adopt their own oversight, and other checks and balances, to be sure.
But corporations are premised, first and foremost, on cooperation and loyalty to the company vision.
US Government, by contrast, is premised on the idea that no one can be trusted. Checks and balances in US government are not just another "good business practice." They are the central architecture.
This is why the political process is ... process-driven. Business is results-driven. Bush is results-driven and tends to get irritated with all the procedural holdups.
What he doesn't get is that: People don't trust him! People are not on board. And that's the way US governance is supposed to work. They view the "procedural holdups" as the only thing protecting them from Bush!
US government is premised on keeping each member of that government from exercising his or her full capability. US governance is premised on institutionalized-inefficiency. The idea that deadlocked government is the best kind of government.
This drives CEO types absolutely nuts. If there weren't all these rules, we could get something done! It bothers most bread-and-butter Americans as well. But people just don't realize that separation of powers (universally revered in the US) and government deadlock (universally condemned) are different descriptions for the same thing. You can't have one without the other.
The greatest enemy of human liberty is government efficiency.
If "us" were his friends and acquaintances, I would agree. But, in fact, "us" is the entire world having access to the Volokh Conspiracy, which is the entire world (perhaps less China, I don't know).
Perhaps those comments are "authoritative," but as is always the case with anonymous criticisms, one must make certain assumptions to determine whether this "inside information" is helpful. I don't know who these commenters are, so I have no basis for knowing what agendas they might have. I assume that there are others in "the White House and various departments" who have a contrary view. Whose views are correct? Who knows, and what is gained by spreading these anonymous opinions?
I should point out that I do not know Addington nor, in fact,had I heard of him before this article. Lacking preconceptions, I did not find these comments "of benefit" at all. I'm sure that people who already disliked Addington found them immensely helpful. But, again, I can go to the New York Times for that kind of "information."
I get your point now, and I wholeheartedly agree. It is indeed a mistake in kind to try to run our sort of limited government like a business . . . and the fact that Bush is apparently bad at running a business too only compounds the problem.
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