Editore"s Note
Tilting at Windmills

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September 4, 2007
By: Kevin Drum

DAVID ADDINGTON vs. THE WORLD....Jack Goldsmith, who headed the Office of Legal Counsel for a few tumultuous months in 2003-04, has written a book about his clashes with the White House — and specifically with Dick Cheney's attack dog, David Addington — over torture, enemy combatants, and domestic spying. It's due out later this month, but today in the New York Times Jeffrey Rosen gives us a preview:

[Goldsmith] shared the White House's concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists. But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. "We're one bomb away from getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling him in February 2004.

In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: "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," he writes. Goldsmith first experienced this extraordinary concealment, or "strict compartmentalization," in late 2003 when, he recalls, Addington angrily denied a request by the N.S.A.'s inspector general to see a copy of the Office of Legal Counsel's legal analysis supporting the secret surveillance program. "Before I arrived in O.L.C., not even N.S.A. lawyers were allowed to see the Justice Department's legal analysis of what N.S.A. was doing," Goldsmith writes.

....The heroes of Goldsmith's book — his historical models of presidential leadership in wartime — are Presidents Lincoln and Franklin D. Roosevelt. Both of them, as Arthur Schlesinger noted in his essay "War and the Constitution," "were lawyers who, while duly respecting their profession, regarded law as secondary to political leadership."....The Bush administration's legalistic "go-it-alone approach," Goldsmith suggests, is the antithesis of Lincoln and Roosevelt's willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. "The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense," Goldsmith concludes in his book. "This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise."

Read the whole thing for more, and be sure to keep in mind while you're reading that Goldsmith is no centrist. He's a hardcore conservative, he's unmpressed with civil libertarian arguments, he was thrilled to work with the Bush administration, he was a close friend of John Yoo, and he's convinced that we need to be on a war footing in the fight against terror. But even at that, he was appalled at what he saw during his tenure in the Justice Department.

It's worth ten or fifteen minutes of your time to read Rosen's piece. But if you just want the highlights, head over to TalkLeft. Jeralyn has 'em for you.

Kevin Drum 2:45 PM Permalink | Trackbacks | Comments (34)

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Comments

If we don't become *just like the terrorists*, there is no way we can win.

The Dems finally realized that, and are giving Bush everything he wants.

Viva la new theocracy!

Posted by: Gore/Edwards 08 on September 4, 2007 at 2:49 PM | PERMALINK

Goldsmith was in the room when Card and Gonzales visited Ashcroft. My understanding is that as the President's champions left Goldsmith says Mrs. Ashcroft stuck her tounge out at them. Bmaz has the story.

Posted by: corpus juris on September 4, 2007 at 2:53 PM | PERMALINK

Sorry Blue girl's post is good too, but here is Bmaz's link.

Posted by: corpus juris on September 4, 2007 at 2:57 PM | PERMALINK

We could do, and lots of people have done, a dissection of the dysfunctions at the heart of the Bush Administration, and explain how they lost their way before they ever set out on the path. Such an exercise might even be worthwhile.

But all you really need to know about David Addington is that he's a sniveling little Annapolis plebe year washout who, at the end of the day, doesn't really believe in the same kind of America that most of us do.

I don't mean little stuff like marginal tax rates, or a slightly more or slightly less intrusive federal beauracracy, but the basic premise that the guy at the "top" can't do whatever the fuck he wants to just because he thinks it's a great idea.

Posted by: hotrod on September 4, 2007 at 3:04 PM | PERMALINK

Well, I sure as hell am not voting for Bush this time around.

Posted by: dingleberry on September 4, 2007 at 3:06 PM | PERMALINK


I have repeatedly wondered about the people, way down the chain of command, who actually tap the phones, torture the prisoners, keep the secrets. Are these people _all_ diehard Cheney Republicans? Are they _so_ fearful of losing their jobs that they will follow any order from their immediate superiors? Are they _completely_ unaware of the controversies over their actions?

I just don't get how bureaucracies work, I suppose. Are they 100% staffed by automatons who don't read newspapers, or what?

-- TP

Posted by: Tony P. on September 4, 2007 at 3:07 PM | PERMALINK

" Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

................................

Hope springs eternal but I'd be more convinced if I saw some analysis of how this is supposed to play out. As far as I can tell, none of the leading presidential contenders have said much about how they plan to reduce their powers while in office, and the existing congress hasn't done much in this regard. The most likely outcome in 2008 is a Dem president + congress, and if the senate is 60+ Dem, do you think it's going to step forward eagerly to limit what the president can do?

What's different now from 1973? I just don't know, but I'm guessing it has something to do with the media, something to do with obsessive ideology (if you're supposedly working in the service of god, everything is admissible), and something to do with realizing, via historical experience, just how much you can get away with.

Posted by: Maynard Handley on September 4, 2007 at 3:18 PM | PERMALINK

Tony,

Part of it is the nature of bureaucracies. Jon Alter over at Newsweek wrote a few months back about how he had seen many times (and never failed to be amazed) how mid-level bureaucrats took on the outlook of the guy at the top, even if he had never met them. Alter was right. That's a good thing if the guy at top "knows what right looks like". In this situation, alas...

Other factors include

-the fact that although the choices sometimes seem very stark during a policy argument, shades of grey rule on the ground. This is particularly true when something unfolds around you, rather than you arrive from the good to the evil. If CID had driven up to Abu Gharib unannounced, people would have been drug out of there in cuffs. But instead, interrogations and prisoners were gradually mixed, hacks and contractors gradually imported, and the command climate subtly debased. Sometimes, when that happens, someone takes a step back, realizes, and screams STOP. Sometimes not.

-if the media\other voices get one point, even a minor one, wrong, it discredits them on big issues. E.g., though the Kafkaesque world of Guantanamo may be horrifying on a number of levels - prisoners are no longer mistreated i.e. tortured, there. Someone who knows that tends to write off criticism coming from the same source.

-Some of these issues are legitimately complex down on the ground. Some NSA tech sorting out calls at the computer workstation may see a stark choice, or he may not. It's not always easy.

Posted by: hotrod on September 4, 2007 at 3:23 PM | PERMALINK

I should have mentioned a bias in favor of the chain of command as well. Which isn't normally a bad thing, but does presuppose a chain of command trying to do the right thing.

Also, "interrogations and prisoners were gradually mixed," should have been a more elaborate statement covering how the distinctions between Internment and Intelligence were blurred. This is a complex topic, and worth of research if you're so inclined.

Posted by: hotmail on September 4, 2007 at 3:37 PM | PERMALINK

"I have repeatedly wondered about the people, way down the chain of command, who actually tap the phones, torture the prisoners, keep the secrets. Are these people _all_ diehard Cheney Republicans? Are they _so_ fearful of losing their jobs that they will follow any order from their immediate superiors? Are they _completely_ unaware of the controversies over their actions?"

Well, throughout history, the tyrants and murderers and dictators have made their impact NOT because they were evil, but because they were surrounded by persons who enabled them. In the recent biography of Adolf Hitler, these people are described as "working toward the Fuhrer." The COLLECTIVE notion was that the Fuhrer was going in a certain direction, and those who were successful worked toward him, or stated another way, determined what they believed the Fuhrer wanted, and did it. These enablers are equally guilty.

There is a huge component of the conservative movement that is fascist - they want to crush their foes, and they don't care how.

These people are nazis.

Posted by: POed Lib on September 4, 2007 at 3:39 PM | PERMALINK

"hotrod" not "hotmail". Good grief, someone call in the QWERTY police.

Posted by: hotrod on September 4, 2007 at 3:40 PM | PERMALINK

"The Bush administration's legalistic "go-it-alone approach," Goldsmith suggests, is the antithesis of Lincoln and Roosevelt's willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade."

Please tell me who in Congress did Lincoln have to persuade before he unilaterally suspended the right of habeas corpus and freedom of the press? The same goes with Roosevelt's unilateral decision to send American citizens of Japanese origins to internment camps and to seize their property in violation of the 5th Amendment.

Whoever believes that the "truism" of presidential power is the power to persuade is an idiot. The truism of presidential power is that it allows a single man to act in the national interest without the need of persuading anyone else. This is especially true in the wartime examples of Lincoln and Roosevelt, who rightly or wrongly believed that their actions, even if illegal or unconstitutional, were necessary for the survival of the State.

Posted by: Chicounsel on September 4, 2007 at 4:27 PM | PERMALINK

A lot of it is that these people are used to doing things that would be illegal IF they weren't properly authorized. A simple police arrest would be several felonies (breaking & entering, assault, kidnapping, etc.) if they didn't have the proper warrants. So it's not really a change in activities so much as a change in the details of how authorization is given, which they probably never paid that much attention to in the first place.

Posted by: ArkPanda on September 4, 2007 at 4:30 PM | PERMALINK

Read "The Lucifer Effect" if you want to understand those down the chain of command.

Posted by: Gore/Edwards 08 on September 4, 2007 at 4:40 PM | PERMALINK

The political conscience of our time is not conservatism, we are too far now from tradition society, but authoritarianism. Authoritarianism was necessary to push back popular movements that limited wealth accumulation in the name of democracy or redistributed wealth in the name of social justice. Paradoxically the neoliberal program is built on the kind of coercion- breaking unions, debt indenturement, and taxing income- necessary to protect the propertied class. Parallel to this and often in concert with it has been the darker cultural movement towards arbitrary power. David Addington is shocking to even the most tough-minded authoritarians because for him there is no law external to power- power and authority are identical. He is prepared to say, like an apologist for dictatorship, that politics, the act of disagreement and consensus, is void when the executive makes his pronouncements. He seems to think that the president is a dictator in war and since threats to security are unending, war and dictatorship are permanent conditions. He is not trying to undermine the Constitution, which is irrelevant, but the messy business of law limiting power.

If anyone wonders how a fascist government took over Germany and convinced all those Germans to follow a madman with a perverse ideology over a precipice look no farther than the United States in the Age of Terror. The Nazi state is a dual state where the traditional legal system functions alongside an arbitrary executive power legitimized by a state of emergency. The authoritarian movement created to oppose the New Deal and Civil Rights is nothing more than a counter-revolution trying to reverse the principles of the American Republic. The opinions of Cheney, Addington, Goldsmith and Yoo run counter to the Rights of Man and Rule of Law embraced by Franklin, Adams, Jefferson and Hamilton.

Posted by: bellumregio on September 4, 2007 at 4:47 PM | PERMALINK

The truism of presidential power is that it allows a single man to act in the national interest without the need of persuading anyone else.

This -- the claim by one man of supreme power for himself with the excuse that he is merely acting in the publics' interest -- is the very definition of tyranny.

Posted by: Stefan on September 4, 2007 at 4:54 PM | PERMALINK

that politics, the act of disagreement and consensus, is void when the executive makes his pronouncements

Very well written.

Posted by: Brojo on September 4, 2007 at 4:55 PM | PERMALINK

be sure to keep in mind while you're reading that Goldsmith is no centrist. He's a hardcore conservative, he's unmpressed with civil libertarian arguments, he was thrilled to work with the Bush administration, he was a close friend of John Yoo, and he's convinced that we need to be on a war footing in the fight against terror.

Don't worry.

Tomorrow the wingnut blogosphere will be calling Goldsmith a commie traitor and posting his home address and pictures of his family.

One day later Fox News will be repeating how the pro-terrorist Goldsmith betrayed GWB.

Two days later, the MSM will be referring to the "anti-war liberal Goldsmith".

Posted by: Disputo on September 4, 2007 at 4:59 PM | PERMALINK

Please tell me who in Congress did Lincoln have to persuade before he unilaterally suspended the right of habeas corpus

I see that Chicounsel still has not read the US Const.

Posted by: Disputo on September 4, 2007 at 5:04 PM | PERMALINK

Just for the record a terrorist attack does not rise to the level of national emergency as a civil war or a world war against great industrial powers. Terror is a form of political advertisement by a force too weak to challenge the power of the organized state. By definition a terror attack does not threaten the survival of a state. Many democratic states have faced terror attacks for decades without having to resort to the power-grabbing measures of the current crew in the White House. By comparison to the actions of European governments we can see that the Republican Party and its allies has tried to capitalize on terror and have chosen to amplify the fear for political gain. Dick Cheney used the terror attacks and the culture of fear cultivated by the Republican Party to launch a long-planned attack and occupation of Iraq.

If terror attacks warrant dictatorship and a suspension of rights and the rule of law than Americans should forget their Republic because terrorism has been a fact of modern life since the invention of dynamite.

Posted by: bellumregio on September 4, 2007 at 5:26 PM | PERMALINK

"I have repeatedly wondered about the people, way down the chain of command, who actually tap the phones, torture the prisoners, keep the secrets. Are these people _all_ diehard Cheney Republicans? Are they _so_ fearful of losing their jobs that they will follow any order from their immediate superiors? Are they _completely_ unaware of the controversies over their actions?"

http://en.wikipedia.org/wiki/Milgram_experiment

Basically, 2/3rds of your fellow humans would be willing to administer a fatal jolt of electricity to you if someone in authority told them to.

Posted by: a1 on September 4, 2007 at 5:39 PM | PERMALINK

England went through worse under the IRA and the govt there did not play politics like the Bush Admin does. The vomit that comes out of Smirky's mouth is non-stop politics 24/7. You could make a TV game around him called "That's Not Presidential."

Are these people _all_ diehard Cheney Republicans?

Yeah, I think so. In fact, I would like to see how many Republicans are [not] casualties in Iraq. They are playing politics there, too, I bet. Dems from swing districts permanently lose their right to vote.

Like that cop who arrested Craig said, "Embarassing. Embarassing." Arrest them all.

Posted by: Bob M on September 4, 2007 at 6:04 PM | PERMALINK

POed Lib >"...These people are nazis."

No they are not.

Nazi = National Socialist Party of Germany during a portion of the middle of the 20th Century

Bush Handlers, Inc. = fascists

Nazis were fascists but not all fascists are/were nazis.

Learn the difference.

"Fascism should more properly be called corporatism, since it is the merger of state and corporate power." - Giovanni Gentile

Posted by: daCasacadian on September 4, 2007 at 6:08 PM | PERMALINK


Goldsmith concludes in his book. "This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise."


“I'm also not very analytical. You know I don't spend a lot of time thinking about myself, about why I do things.” - GWB June 2003

he thinks that's a virtue..

Posted by: mr .irony on September 4, 2007 at 6:29 PM | PERMALINK

There are Addingtons in the Democratic Party. Arizona's governor was a childhood friend of Addington's, and she became a federal prosecutor. As governor, she followed NM Gov. Richardson and deployed the National Guard to the border. She stood by the president's side and cheered the announcement of the tortilla wall. She was in Iraq recently, and made the same positive pronouncements as everyone else about the military escalation's effects. I have no doubts Gov. Napolitano shares many beliefs about executive power with Addington, which she may come to wield as the next AG or Homeland Security secretary.

Posted by: Brojo on September 4, 2007 at 7:33 PM | PERMALINK

This may be nitpicking, but when I attended Columbia Law School, they had a large photograph of FDR in front of Kent Hall, then the locus of the Law School. The caption noted that FDR never graduated. So I don't think he was ever a lawyer.

Posted by: kaleidescope on September 4, 2007 at 7:57 PM | PERMALINK

FDR practiced law with a Tammany-connected white shoe law firm. His partner was Basil O'Connor, involved in all his campaigns.

Oddly enough, Basil's brother was John O'Connor, a long-time member of Congress. He became chair of the House Rules Committee, a major part of the House leadership, and turned against the New Deal because it replaced local powers like Tammany with Federal patronage.

When FDR tried to purge New Deal opponents from Congress, he mostly meant Republicans -- but ALSO John O'Connor, who wound up being the only one who actually lost.

So, yeah: FDR did practice law, but mostly as a sideline to his politics, and not for long: he was a rainmaker and reformer.

Posted by: theAmericanist on September 4, 2007 at 8:38 PM | PERMALINK

David Addington. Is he one of those Jewish neocons? Whenever I see rabies and foaming at the mouth in the administration, I assume it's a Jewish neocon keen on sacrificing the U.S. for Israel. Google must censor religious information. It's amazingly difficult to find out the religion of some of these rabid dogs.

It's time we deported all those so-called "Americans" with dual loyalties for whom America is a distant second in fealty.

Get rid of the neocons, Evangelical Zionists, 'todo por la raza' racist Latinos like Mel Martinez, PC masochists who prefer chamberpot immigrants to Americans, the Washington and WSJ garbage who are more loyal to business and corporate interests than to the people of America and we'll be a long way to saving our nation.

Posted by: Luther on September 5, 2007 at 12:33 AM | PERMALINK

Ah, Luther -- yet more proof that it is possible to be a US citizen and have no clue what it means to be an American.

Fuck you, Luther.

Posted by: theAmericanist on September 5, 2007 at 12:13 PM | PERMALINK

dual loyalties

Actually, dual loyalty would be an improvement. Dual loyalty would mean thinking of America's well-being ahead of Israel's now and then.

Posted by: luke on September 5, 2007 at 3:21 PM | PERMALINK

actually luther has a good point, we are begining to see why hitler was so bent on ridding the world of jews. america was an innocent beautiful country - a beacon to the world standing for freedom and justice. until the jews got here. for whatever reason they are full of hate and racism. perhaps it is the centuries of inbreeding. look at what they are doing in palestine. building jew only roads, jew only schools, jew only marriages, jew only housing, jew only justice. nothing but hatred and scorn for the local people who lived there for generations. but it's all a closely held secret. the jews dont want us to know what they're really like - because secretly in their black hearts, they know they are utterly contemptible.

Posted by: andy on September 9, 2007 at 7:41 AM | PERMALINK

Feith, Wolfowitz, Herbitz, Frum, Gerson, Fleisher, Libby, quite an Israel caucus. After Feith was booted from the Defense Dept he landed a professor job at Georgetown foreign service school despite having no academic qualifications. How did that happen? The Pres of the school is a graduate of Brandeis University, so one member of the club helps another, at the expense of America's future foreign service officers........

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