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May 28, 2006 - Who's Your Daddy?

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The heads-up came via Wonkette here


US News and World Report having searched far and wide, has found you a new enemy. They heard your cries - Scooter Libby's been caught, Karl Rove's proved to be useless at anything besides barely winning presidential elections, Dick Cheney's been too ridiculous to take seriously ever since he shot a guy in the face, Rice is too diplomatic, Gonzales not as creepy as Ashcroft, and George W. Bush is still George W. Bush. So who to hate? Who to insist is the sinister power behind the throne? Who's the devious, secretive mastermind? Apparently, it's David Addington. You know David Addington, right? Cheney's lawyer? Has a beard? Took Scooter's job?

Well, he's responsible for just about everything. Seriously. Torture, the Niger thing, Plamegate, he's all over the place. Totes evil. Nine damn pages of evil!


But, but, but... this not a new bad guy, if he is that. A scan of what has appeared in these pages finds six items that refer to David Addington and how he works.

Back in February here (see section three), we find he was central, as Newsweek had reported, in the resignation of the administration's deputy attorney general, a fellow named John Comey, and another assistant attorney general - they thought he was asking them to do what was clearly illegal and they just wouldn't do it. Newsweek at the time called it a palace revolt, and from here in Hollywood it looked like it would make a great movie –


The bad guys are really bad. The evil mastermind is Vice President Cheney (think Professor James Moriarty as played by Sidney Greenstreet, without the charm). His "muscle" - the enforcer - is his former counsel, David Addington, the fellow who is now his chief of staff, having been given Scooter Libby's job when Scooter was indicted on multiple felonies - short-tempered, nasty and smart as a whip. You don't mess with this Addington guy. Lurking in the background is John Yoo, the administration legal advisor, scribbling away at legal opinions late at night, giggling manically - ah, we can justify torture as long as the pain only simulates organ failure, and if you think real hard, the constitution does imply the president can break any law he wants! Think an Asian Peter Lorre.


And Newsweek had said this –


The chief opponent of the rebels, though by no means the only one, was an equally obscure, but immensely powerful, lawyer-bureaucrat. Intense, workaholic (even by insane White House standards), David Addington, formerly counsel, now chief of staff to the vice president, is a righteous, ascetic public servant.

... He is hardly anonymous inside the government, however. Presidential appointees quail before his volcanic temper, backed by assiduous preparation and acid sarcasm.

... Addington and a small band of like-minded lawyers set about providing that cover - a legal argument that the power of the president in time of war was virtually untrammeled. One of Addington's first jobs had been to draft a presidential order establishing military commissions to try unlawful combatants - terrorists caught on the global battlefield. The normal "interagency process" - getting agreement from lawyers at Defense, State, the intelligence agencies and so forth - proved glacial, as usual. So Addington, working with fellow conservative Deputy White House Counsel Timothy Flanigan, came up with a solution: cut virtually everyone else out.


That's a role an actor could really sink his teeth into. And US News and World Report is just getting around to him?

And two weeks ago in the New York Times there was this


In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001.


And this –


If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said. He added: "That's not what the N.S.A. lawyers think."


All that was discussed in these pages here, so this is not news. You just have to pay attention.

Wikipedia has a brief profile of Addington here with links to five or six major news items on the guy. The only detail of the entry that jumps out, for those of us who spent endless days in the warm and sleepy classrooms of the would-be Harvard of the South, is that this fellow is an honors graduate of the law school at Duke University. Who else got their law degree there? Richard Nixon. Angela Davis. Something odd goes on down there, in addition to the antics of the lacrosse team this year. The place creates some strange people, or nurtures them so they become all that they maybe shouldn't be. That's probably true of the rest of us from the other graduate programs of course.

In any event, the US News and World Report item that's all the buzz is a bit of filling in the corners, as the Hobbits say. It's by Chitra Ragavan and called Cheney's Guy, with the subhead - "He's barely known outside Washington's corridors of power, but David Addington is the most powerful man you've never heard of. Here's why."

The "why" has a lot to do with the presidential signing statements, those legal memoranda "in which the president and his lawyers take legislation sent over by Congress and put their stamp on it by saying what they believe the measure does and doesn't allow." Much has been said on that. Bush has signed seven hundred fifty, while former presidents made do with two or three a year. Addington seems to be the man who is behind that way of doing business.

And as for the president's authorization of, as Ragavan lists, military tribunals for terrorism suspects, secret detentions and aggressive interrogations of "unlawful enemy combatants," and warrantless electronic surveillance of terrorism suspects on US soil, including American citizens? Addington's idea, pretty much, as in "much of the criticism that has been directed at these measures has focused on Vice President Dick Cheney. In fact, however, it is a largely anonymous government lawyer, who now serves as Cheney's chief of staff, who has served as the ramrod driving the Bush administration's most secretive and controversial counterterrorism measures through the bureaucracy."

It goes like this –


Name one significant action taken by the Bush White House after 9/11, and chances are better than even that Addington had a role in it. So ubiquitous is he that one Justice Department lawyer calls Addington "Adam Smith's invisible hand" in national security matters. The White House assertion - later proved false - that Saddam Hussein tried to buy nuclear precursors from Niger to advance a banned weapons program? Addington helped vet that. The effort to discredit a former ambassador who publicly dismissed the Niger claim as baseless, by disclosing the name of his wife, a covert CIA officer? Addington was right in the middle of that, too, though he has not been accused of wrongdoing.


He's been busy.

And here's the core –


Addington began his government career 25 years ago, after graduating summa cum laude from the Georgetown University School of Foreign Service and with honors from the Duke University Law School. He started out as an assistant general counsel at the CIA and soon moved to Capitol Hill and served as the minority's counsel and chief counsel on the House intelligence and foreign affairs committees. There, he began his long association with Cheney, then a Wyoming congressman and member of the intelligence panel. Addington and Cheney - who served as President Gerald Ford's chief of staff - shared the same grim worldview: Watergate, Vietnam, and later, the Iran-contra scandal during President Reagan's second term had all dangerously eroded the powers of the presidency. "Addington believes that through sloppy lawyering as much as through politics," says former National Security Council deputy legal adviser Bryan Cunningham, "the executive branch has acquiesced to encroachment of its constitutional authority by Congress."

When Cheney became ranking Republican on the House select committee investigating the Iran-contra scandal, Addington helped write the strongly worded minority report that said the law barring aid to the Nicaraguan contras was unconstitutional because it improperly impinged on the president's power. The argument would become the cornerstone of the Bush administration's post-9/11 policies.

... Addington is a strong adherent of the so-called unitary executive theory, which is cited frequently and prominently in many of Bush's legislative signing statements. The theory holds that the president is solely in charge of the executive branch and that Congress, therefore, can't tell him how to carry out his executive functions, whom to pick for what jobs, or through whom he must report to Congress. Executive power, separation of power, a tight chain of command, and protecting the unitary executive - those became the guide stars of Addington's legal universe.


It seems the constitutional law classes at Duke aren't much like the ones that the late Peter Rodino taught at Seton Hall.

There's a lot too on political infighting, as in castrating the JAG guys at the Pentagon, but that's a bit arcane. It came down to the business with military tribunals and detainee treatment policies. They thought the rules should be followed. They lost.

What to of Addington himself? There's this –


According to critics, the reason Addington is such an effective bureaucratic infighter is that he's an intellectual bully. "David can be less than civilized," one official says. "He can be extremely unpleasant." Others say it's because Addington is a superb lawyer and a skilled debater who arms himself with a mind-numbing command of the facts and the law. Still others attribute Addington's power to the outsize influence of Cheney. "Addington does a very good job," says a former justice official who has observed him, "of harnessing the power of the vice president."

But it's a subtle kind of harnessing. Addington, according to current and former colleagues, rarely if ever invokes Cheney's name. An administration official says that it's sometimes unclear whether Addington is even consulting the vice president. But Cheney is always the elephant in the room. "People perceive that this is the real power center," says attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, "and if you cross them, they will destroy you."


But only Cheney carries a shotgun.

There's also a long section on Cheney refusing to release documents relating to that energy task force that he headed way back when. Addington fought that one all the way to the Supreme Court, and won.

And as for the post 9/11 business, there's this –


In the months after the attacks, the White House made three crucial decisions: to keep Congress out of the loop on major policy decisions like the creation of military commissions, to interpret laws as narrowly as possible, and to confine decision making to a small, trusted circle. "They've been so reluctant to seek out different views," says one former official. "It's not just Addington. It's how this administration works. It's a very narrow, tight group."

That core group consisted of Bush's counsel and now attorney general, Alberto Gonzales; his deputies, Timothy Flanigan and David Leitch; the Pentagon's influential general counsel, William Haynes; and a young attorney named John Yoo, who worked in the Justice Department's Office of Legal Counsel.

Whether or not he became the de facto leader of the group, as some administration officials say, Addington's involvement made for a formidable team. "You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power," says a former Justice Department official. "If you suggested anything less, you were considered a wimp."


So we get the "no wimps here" crowd doing their thing - deciding how wide the war should be, what to do with anyone detained, even American citizens, how to handle congress and the court, bypassing this law or that treaty, precisely defining what is not really torture but just aggressive questioning that only simulates death or major organ failure (the famous Bybee memo). Addington has his hand in it all.

The items ends with this –


Even his toughest critics in the administration say Addington believes utterly that he is acting in good faith. "He thinks he's on the side of the angels," says a former Justice Department official. "And that's what makes it so scary."


And so it is, but it's not news, just all the scattered detail collected and arranged in a well-written nine pages, and now you don't have to read the whole thing. But you could.

Or you could read Francis Wilkinson's cover story for the June issue of American Prospect, available on the web Monday, May 22nd here, arguing the "no wimps here" crowd in the White House has met its natural limit –


"Terrorist attacks are not caused by the use of strength; they are invited by the perception of weakness."

President George W. Bush has made that statement many times. So has Vice President Dick Cheney. And Defense Secretary Donald Rumsfeld. Multiple principals endlessly repeating themselves -- that's the mark of a premium White House talking point. Or in this case, a kind of gospel - poll-tested, market-driven, swing-voter-approved, and sanctioned by Kardinal Rove himself.

Like its religious counterpart, political liturgy does not reward literal interpretation. The "weakness" that invites our destruction is not a measurable, structural weakness of nations. It is more insidious than that. It is the weakness of men. Certain men of uncertain will. Unmanly men. Men who lack the grit and determination to command other men to expend their grit and determination in battle. Girly men. Men who snuggle before the domestic hearth of the Mommy Party. Men who fuss and fret over Mother Nature (when what she really needs is a good drilling). Men who wish to restrain the natural urges of natural men, to smother initiative and stifle competition beneath the suffocating pleats and ruffles of the Nanny State. Men who are effete. Men who cut and run. Men without guns or guts or glory. Men whose weakness abases and undermines the rugged individualism and frontier can-do that made the United States Numero Uno.

We have met the enemy. And he adores Judy Garland.


Yeah, yeah. So we've been told.

This item is also long but has some choice nuggets of snark –


No matter what ideological hue he projects, whether conservatism, corporatism, idealistic imperialism, or his studied tracings of Ronald Reagan's rugged sentimentalism, Bush has made manliness the centerpiece of his persona and his politics. Bush's flight-deck performance aboard the U.S.S. Abraham Lincoln - "Mission Accomplished" - long ago became Esperanto for "hubris." But as psychologist Stephen J. Ducat noted in his provocative book on masculine anxiety, The Wimp Factor, the event began as a ballsy celebration, first and foremost, of Bush's manhood. Observing the President's flight suit, which expressly accentuated his crotch, G. Gordon Liddy, the right's uncensored id, noted: "It makes the best of his manly characteristic."

We are in our sixth year of government by gonads. Through conscious, concerted, disciplined, and relentless effort, Bush and his party have succeeded in cowing critics and defeating Democrats by advancing images of, and insinuations about, manliness in the public sphere. In the Republican political schemata, this is a man's world. Men have made it dangerous. And only men - real Republican men - can make it safe again.


Government by gonads. Clever. Too bad it's true.

As in this –


For three straight elections, from 2000 through 2004, Republicans have outmanned the Democrats. Al Gore was dismissed as a hectoring schoolmarm, John Kerry as a flaky croissant, a kept man, a tin soldier. In between, Bush made no bones about the price of Democratic pusillanimity: Under its brief Democratic majority, he said, the U.S. Senate was simply "not interested in the security of the American people." And with another Election Day approaching, and their party depleted of both issues and credibility, the Republicans will no doubt seek to emasculate the opposition once again.


Of course they will. That's what they do. But not this time? Maybe –


... the testosterone is no longer flowing like $75 crude. Multiple mission failures have exposed Republican talking points as so much bluster. To underscore the farce, the gods of metaphor illustrated the tragic potential of power placed in irresponsible hands; after his beer-and-hunting nightmare in Texas, Vice-President Bottom awoke with an ass's head on his shoulders.

Now, rising out of the broken-back shamble of Republican machismo, is a veritable platoon of Democratic men. They have exceptionally macho profiles and an appetite for power. They are politically diverse but united in their contempt for the bully in the pulpit. They are fed up with schoolyard put-downs. They are disgusted by incompetence and callousness. And they are running for Congress.


The rest is a survey of all the vets running for office as Democrats. Attacking them all isn't going to work. There are more than fifty of them. Oops.

But then, the man at the top may not be able to resist trying to attack them all –


When Bush parades to a podium, his arms cantilevered to the side to make room for imaginary mass and muscle, he looks like a freshman swimming upstream against the hormonal currents of a high-school hallway. It's not enough for Bush to impress upon you the fact that he is leader of the world's sole superpower. He also wants you to think he can beat you up.

However, Bush is also a complicated case. Eager to telegraph his masculinity through walk and talk and posture, he nonetheless appears personally unthreatened by women, blacks, and gays, an immunity that distinguishes him from his culturally reactive, ever-anxious political base. He allowed himself to be tutored by a younger black woman - not in the domestic rigmarole of the welfare state but in the manly crucible of foreign affairs, where presidencies are made or broken. (He then let it be known he had been tutored by her and eventually named her secretary of state.) Of equal note, Bush's forays into homophobia are cynically electoral, not emotionally authentic; as soon as the polls close, the antigay claptrap is put in storage until it's needed to rouse the base next season. The biennial denigration of a few million Americans is nothing personal - just the price of power.

Much has been made of Bush's Oedipal drama over Iraq. But the father's legacy is evident everywhere - certainly in W's equation of masculine aggression with political survival. Before he became leader of the free world, Bush Sr. was a sports star, a war hero, a successful wildcatter in the rough and tumble drilling fields of west Texas. Yet he was tarred as a "wimp," depicted in political cartoons as an old biddy or, in Doonesbury, as so light in his loafers that he constituted no more than an asterisk.

If the father was too wimpy to master the arena, what of the son? Cheerleader, draft evader, oil business failure, he fell short of the father on nearly every masculine measure. For George W. Bush, no amount of aggression or masculine posing could be too much. To prevail in a brutal world of men like Karl Rove, W. was going to have to be one hell of a hard-ass.

The father's demise surely shaped the son's rise. But the raw material was there to be molded. Bush's college yearbook contains a photograph of him playing rugby. His left arm is wrapped around the neck of an opposing player, who is carrying the ball. His right hand is in a fist and appears to be sucker-punching his opponent in the face. The caption reads: "George Bush delivers illegal, but gratifying right hook to opposing ball carrier." A portrait of the cheap-shot artist as a young man.


Yep. The photo is here (bottom of the page). That's what we've had.

So Wilkinson is cheering on war vets running as Democrats, and invoking FDR –


Go get 'em boys. I hope every one of those guys - even those in races that are positively unwinnable - wrestles his Republican opponent to the ground and roars, asserting his Democratic manhood. We need the catharsis.

But after having wallowed in our fear these last five years, maybe what we need next are leaders who will raise us above it. The one man who taught us better than any other to conquer fear was no Governor Terminator. His muscles were unimpressive. He had no physical swagger to him at all. His military experience was a desk job. He wore no cowboy gear. He smoked cigarettes not like a Marlboro Man but filtered through a slender, feminine holder that could have been a prop from the Follies Bergere. He didn't promise to protect us. He made us believe we could protect ourselves - from the violence of fascism and the vicissitudes of capitalism alike. And he handed us the tools to do the job. We built the better part of the American century on the back of an aristocratic, polio-addled cripple. Now that was a man.


But he'd be swift-boated today. Ann Coulter would laugh at him. But maybe times are changing. Addington and Cheney and all the rest who never saw the inside of a uniform, sitting around laughing at wimps, many of whom served, could be replaced one day by those who know real wimps when the see them, sitting around laughing at "wimps." No more draft-dodging former college cheerleaders? That's a thought.


On a related note, one suspects that David Addington has a hand in the sudden in the sudden explosion of successful efforts to stop all kinds of embarrassing legal actions by invoking the "state secrets" ploy, as Henry Lanman explains here (Monday, May 22, SLATE.COM).

Lanman, a New York attorney, opens with what was discussed in these pages last week, and his summary is better –


Last Thursday, a federal court in Virginia threw out a lawsuit against the government that had been brought by a German citizen named Khalid el-Masri. El-Masri alleged that the government had violated U.S. law when - as part if its "extraordinary rendition" program - it authorized his abduction, drugging, confinement, and torture. His captors allegedly shuttled him on clandestine flights to and from places like Kabul, Baghdad, and Skopje, Macedonia, during the five months of his detention. He was released only when the government realized it had kidnapped the wrong man. El-Masri has substantial evidence to back up his story, and German prosecutors have verified much of it. And, while the government has not confirmed that it took el-Masri as part of its extraordinary rendition program, it has not shied away from admitting the program exists; it has in fact trumpeted it as an effective tool in the "war on terror." So why then was el-Masri's lawsuit thrown out? Because the judge accepted the government's claim that any alleged activities relating to el-Masri were "state secrets."

Never heard of the "state secrets" privilege? You're not alone. But the Bush administration sure has. Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters' Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.

There is nothing inherently objectionable about the state secrets privilege. It recognizes the reasonable proposition that even simple lawsuits against the government - tort suits, breach of contract claims - can sometimes involve issues that would be genuinely harmful to national security if they saw the light of day. Say, for instance, that a janitor in Los Alamos, N.M., tripped over a box of uranium lying in the hallway in 1943. It would hardly do to have the evidence used in the subsequent slip-and-fall case scuttle the entire Manhattan Project. So, tough though it is on individual plaintiffs, the courts have historically deferred to government claims that some evidence in certain litigation must be shielded as "state secrets."

Traditionally, this privilege was most often used to prevent plaintiffs from getting a hold of very specific, sensitive evidence in an ongoing lawsuit; it was seldom invoked to dismiss entire cases.

Maybe that hypothetical Los Alamos plaintiff couldn't have discovered exactly what was in the box that he tripped over. But, generally speaking, if the lawsuit could have proceeded without his knowing the contents of that box, it would.


Now thing have changed. The idea is not to exclude evidence, it's to dismiss the whole suit. And it seems to be working. Addington. The full discussion, with precedents, is worth a read.

The most interesting case is this –


Take, for instance, Hepting v. AT&T, which arises out of the NSA's warrantless wiretap program. It's a class-action suit, brought on behalf AT&T's customers who claim that the company violated various laws when it allegedly gave the NSA access to its facilities and databases. As part of their case, the plaintiffs have submitted 140 pages of technical documents that, they say, lay out how AT&T's collaboration with the NSA works. The government doesn't claim that these documents are classified. Yet when the New York Times - which also has copies of these documents - showed them to telecommunications and computer security experts, these experts concluded that the documents themselves demonstrate that "AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company's network." And, of course, the president himself has acknowledged the existence of the warrantless surveillance program.

That makes it awfully hard to understand how the core claims in this case - basically that the program exists and that AT&T participates in it - are so top-secret that, as the administration has claimed in its papers, the whole case must be dismissed before it gets started. Of course, it's not unimaginable that real state secrets could arise in this lawsuit, but if they did, there's no reason to think they couldn't be handled the same way such issues have been in the past - as discrete evidentiary matters. However, even this level of skepticism from the judiciary may be too much to ask; the court hearing el-Masri's case just rejected essentially the same argument.

Despite the burgeoning use of this privilege and the way it's been used to gut entire cases, the most disturbing aspect of the Bush administration's expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration's broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists - if the administration continues to broadly assert this privilege and courts continue to accept it - the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the "war on terror" violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it's a secret.


Addington. Nixon's Duke Law School.

But then, people can fight back, as in this, news that broke after Lanman had written his piece –


An online news outlet published papers Monday that it said document AT&T's alleged role in a government effort to spy on Internet traffic.

The internal company documents and other materials were assembled by Mark Klein, a former AT&T technician. Klein also gave internal AT&T documents earlier this year to privacy advocate Electronic Frontier Foundation, which sued the telecommunications giant challenging the Bush administration's secretive domestic surveillance program.

It wasn't clear whether the documents published Monday by Wired News were the same as those at the heart of the lawsuit against AT&T. Wired News acknowledged it could not be sure, because the federal judge presiding over the case has sealed the records.

But Wired News said the AT&T documents "appear to be excerpted from material that was later filed in the lawsuit under seal."

The papers are a blend of corporate blueprints and Klein's own interpretation of them. They seem to provide a detailed account of how AT&T used "splitters" to tap into gigantic fiber-optic lines that carry Internet traffic.


What follows is a bit on splitters and routers and switches and hubs - geek stuff - but more basically it seems someone doesn't want to accept the "daddy state" where you're supposed to shut up and let the real men do things to protect you.


Addington may very well have proposed using the "state secrets" thing as much as possible. It just doesn't work when the cat's out of the bag.


The battles over "shut up, you're not supposed to know" are just beginning. Some think we live in an open democracy. This should be fun.

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik

The inclusion of any text from others is quotation for the purpose of illustration and commentary, as permitted by the fair use doctrine of U.S. copyright law.  See the Legal Notice Regarding Fair Use for the relevant citation.
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