David Addington

  • December 2, 2013
    Emergency Presidential Power
    From the Drafting of the Constitution to the War on Terror
    Chris Edelson

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

    In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

    The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.

  • May 14, 2009
    Bad Advice
    Bush’s Lawyers in the War on Terror
    By Harold H. Bruff, Charles Inglis Thomson Professor of Law, University of Colorado at Boulder
    President Bush received bad advice from his lawyers regarding some crucial decisions in the war on terror, including National Security Agency surveillance of American citizens, detention and trial by military commission of suspected terrorists, and authorization of harsh interrogation techniques-the torture question. In each of these contexts, the President's lawyers made broad and even unprecedented claims of unilateral executive power after a secret process of decision. Their advice exceeded the bounds of professional responsibility.

    Legal advice to a President is always sympathetic to his policy goals. Advisers feel political and personal loyalty to the President who selected them. Competition for influence within the administration fosters telling a President what he wants to hear. Also, the culture of the Executive Branch ensures sympathy. Given these powerful incentives to support the President's policy agenda, what can and should constrain the lawyers? First, there is the obligation of the oath to defend the Constitution that they all take. The lawyers also have a second obligation in their professional responsibility to "exercise independent professional judgment and render candid advice." As Robert Jackson said, "the value of legal counsel is in the detachment of the advisor from the advised." We expect that distance from professionals of all kinds, our doctors for example.

    To buttress the duty of independent judgment, executive advisers need to accept the principle of the Steel Seizure case that Congress can lay down the law, even in time of war. Support of a broad initiative power for the executive is fully consistent with this principle. Some of President Bush's lawyers followed a theory that the executive has broad unilateral power in the foreign realm that Congress may not control, except perhaps by withholding funds or impeachment. This risks a destabilizing pursuit of executive hegemony, one very erosive of the rule of law.