It comes as a surprise to him simply because he surrounds himself with people who won’t say otherwise. Thursday’s SCOTUS decision nicely dovetails with this profile of Cheney’s henchman David Addington in the New Yorker that I highly recommend.
Most Americans, even those who follow politics closely, have probably never heard of Addington. But current and former Administration officials say that he has played a central role in shaping the Administration s legal strategy for the war on terror. Known as the New Paradigm, this strategy rests on a reading of the Constitution that few legal scholars share namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside. A former high-ranking Administration lawyer who worked extensively on national-security issues said that the Administration s legal positions were, to a remarkable degree, all Addington. Another lawyer, Richard L. Shiffrin, who until 2003 was the Pentagon s deputy general counsel for intelligence, said that Addington was an unopposable force.
The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants rights, were deemed too cumbersome. Instead, the President authorized a system of detention and interrogation that operated outside the international standards for the treatment of prisoners of war established by the 1949 Geneva Conventions. Terror suspects would be tried in a system of military commissions, in Guantánamo Bay, Cuba, devised by the executive branch. The Administration designated these suspects not as criminals or as prisoners of war but as illegal enemy combatants, whose treatment would be ultimately decided by the President. By emphasizing interrogation over due process, the government intended to preëmpt future attacks before they materialized. In November, 2001, Cheney said of the military commissions, We think it guarantees that we ll have the kind of treatment of these individuals that we believe they deserve.
As the article points out, in the Clinton administration the president, top staff and even the first lady (Hillary) were lawyers (as was John Kerry). Though not a prerequisite to the office, it sure helps when you have a guy like Addington interpreting things, who – pardon my French – is batshit crazy. Addington, along with Alberto Gonzales, are the architects of the Fairytale La-La Land principles of legality that surround this presidency. It’s not a simple partisan viewpoint. In fact, I support a strong executive branch. But not one that picks and chooses the laws to which it decides to follow.
As the news analysis in Friday’s Post details, the decision at least slaps in the face the idea that – at least when it’s a Republican – that the Presidency = God. In all likelihood the congress will push through most of the legislation that the White House wanted, but the linchpin in this is that this nonsense could have been avoided if they went to the congress in the first place.
For me, here’s the nugget: they have claimed special powers for the executive because we are “at war”. Yet, no formal declaration of war has been made – neither against Al Qaeda or in Iraq. I have never attended a moment of law school, but I’ve watched enough Law and Order and Perry Mason to know that there’s no legal precedent to allowing one to have his cake and eat it too.
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