August 09, 2006

CHARACTER ASSASSINATION: NEW YORKER STYLE

Horsefeathers welcomes this important contribution by counselor, Arnold Roth. One of the defining attributes of the contemporary Liberal mind is its sanctimonious self-regard. Jane Mayer of the New Yorker is a perfect representative of the type. She is a living example of what Dr. Johnson referred to as "articulate ignorance". We would argue that Roth's extensive critique derives its importance, not just from its careful examination of Mayer's duplicities, but from the way it exposes an entire mind set, the mind of the Liberal.

THE NEW YORKER VS. DAVID ADDINGTON: DISHONEST, UNPROVED AND FRIVOLOUS. CASE DISMISSED.

Liberal hysteria has it that the Bush administration improperly seeks to expand presidential power and thereby to trash the Constitution. A Washington lawyer named David S. Addington, presently the successor to Scooter Libby as Vice-President Cheney’s chief of staff, has become a lightning rod for such hysteria. When Addington took over for Libby, the liberal press and lefty blogs were predictably filled with grumbling about his allegedly over-expansive views of presidential power, allegations that pretty uniformly were based on conclusory opinions of others (largely unnamed) as to Addington’s beliefs, rather than on any specific statements by Addison himself about the scope of such powers. A NEW YORK TIMES profile (11/2/05) did provide some real facts about Addington: he is regarded as “a kind of legend with the bureaucracy, a man of formidable intelligence, passionate, conservative views and a frequently eviscerating style toward those who openly disagree with him”, and Democrats “who have worked with him say that they do not regard him as particularly partisan; [one] says Mr. Addington is ‘tough, to be sure, but he’s also very direct, and I’ve found him to be very professional and very honest’”.

The liberal complaints about Addington, and the liberal frenzy about his alleged efforts to expand presidential power, peaked in an scurrilous article about him in the July 3 NEW YORKER, written by one Jane Mayer and entitled “The Hidden Power: The legal mind behind the White House’s war on terror”. Mayer’s basic position is that

"[Addington] doesn’t care about the Constitution . . . [H]e 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 . . . [T]he Administration’s legal positions were, to a remarkable degree, 'all Addington'".

A NEW YORK TIMES editorial (7/16/06) saw the article as a “chilling” look at the Administration’s alleged “effort to undermine the constitutional separation of powers”. A letter printed in the NEW YORKER (7/24/06) described the article as “excellent” and claimed Addington to be “a disgrace” as a lawyer. And lefty blogs were orgasmic.

The liberal enthusiasm for Mayer’s article was unsurprising, in that it clearly fueled already-existing liberal paranoia and told leftys exactly what they wanted to hear: bad Addington, bad Cheney, bad Bush, bad Administration, blah, blah. But for anyone not already convinced of Mayer’s conclusions, even a cursory reading reveals the article to be devoid of any probative and credible evidence to establish those conclusions. They are based, instead, on innuendo, gossip, rumor, unreliable hearsay and unsupported conclusory assertions, together with a gross misstatement of pertinent legal authority, and the article therefore amounts to nothing more than vicious character assassination. Accordingly, I say that the NEW YORK TIMES and the letter noted above got it just backwards, and that it is the Mayer article that is truly “disgraceful”, and it is Mayer’s journalistic technique for tarring Addington that is truly “chilling” and despicable.

Disclaimers. – My purpose here is not to argue about the propriety or usefulness of Administration efforts to fight the war on terror. I simply intend to demonstrate that (a) Mayer does not establish her premises that Addington “has played a central role” in those efforts and that his views are out of the constitutional mainstream, and (b) accordingly, her article is just another unwarranted liberal hatchet job.

I know that this piece is very long and maybe, to some, mind-numbing in detail. This is because I want to deal as completely as I can with enough of Mayer’s many assertions in her lengthy article (12 New Yorker pages and over 33 columns), and to avoid the kind of unsupported conclusory assertions in which she and her alleged sources indulge, so that you have a real basis for determining for yourself whether I am right or not.

I don’t know Addington, and don’t think I ever heard of him (if I did, it didn’t stick) until I read Mayer’s article. I don’t know whether he is a good or bad guy, or what are his views on the extent of presidential power, the treatment and trial of Guantanamo detainees, the NSA surveillance program, presidential signing statements or other liberal hot-button issues. What I do know is that you don’t get reliable answers from Mayer.

I also don’t know Mayer, and am unaware of having heard of her or read anything by or about her before her Addington article, although I now know that she has been described as “a long time Clinton loyalist”, has written extensive criticisms of the Administration, and co-authored a book attacking Supreme Court Justice Clarence Thomas. I did wonder about her journalistic morals as I read the flimsy “support” for her conclusions about Addington, and later found that her standards and ethics have been questioned before. For example, David Horowitz asserted in an article entitled “Lies of The New Yorker” that Mayer totally disregarded a long interview he had with her, and ignored documentary evidence, in writing “a politically motivated caricature” of himself in the 9/27/99 NEW YORKER, and characterized her reporting as “underhanded” because

"the reality [is] pretty much the opposite of the picture Mayer presents, [and] the facts are all in print, so that even if Mayer didn’t believe a word I said . . . she could have referred to the documentary record to check her opinions with evidence. Obviously this was not something that interested her".

Similarly, a note in JEWISH WORLD REVIEW noted that Mayer wrote a “slimeball piece” in the 11/20/00 New Yorker that was “an extraordinarily dishonest hit job on former New York Press columnist” John Ellis”, in that it “portrays him as a dilettante” and gives the “impression . . . that Ellis was hired by Fox News [as an election analyst] for mere access [to his cousin George Bush]”, but nowhere “mentioned Ellis’ impressive resume” or noted that “Ellis’ professionalism is respected within the political community, by people of both parties”. And Mayer’s book on Justice Thomas was described by a former special assistant to then-Chairman Thomas at the EEOC as “one of several grotesquely dishonest books on Justice Clarence Thomas”; was said in an article at REAL CLEAR POLITICS to be “riddled with factual errors”; and was characterized in the Horowitz article as a “diatribe” for which “an apology by her to Clarence Thomas was in order”. I don’t know anything about the underlying facts of those comments, and I guess Mayer would at least pretend to argue with them, and you can make up your own mind, but I would say, based on my analysis, that the words and phrases “underhanded”, “the reality [is] pretty much the opposite of the picture Mayer presents”, “evidence . . . was not something that interested her”, “slimeball piece”, “extraordinarily dishonest”, “grotesquely dishonest”, “riddled with factual errors” and “diatribe” could aptly describe her Addington article.

The Article. – Mayer’s article, which is accompanied by a full page cartoon of Cheney and Bush watching with delight as Addington shreds the Constitution, sees the Administration, with Addington as the guiding force, as having unconstitutionally attempted to expand presidential power in various ways, such as by using military commissions to try Guantanamo detainees, permitting warrantless electronic surveillance by the NSA, and undercutting congressional legislation by the use of signing statements. Mayer’s core criticism is about the military commissions, which, she alleges, “Addington was instrumental in creating”. Mayer suggests – wrongly, as it turns out – that military commissions are an aberration, having been used only a few times by President Franklin Roosevelt, and asserts – again wrongly – that Administration reliance on the 1942 Supreme Court decision in Ex parte Quirin that approved such use was inappropriate because Quirin is “arcane”, “out of date” and “one of the worst Supreme Court cases ever”. Mayer complains that the military commissions deprive suspected terrorists of rights available to defendants in criminal and military courts, because:

"The overarching intent of the New Paradigm, 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 . . . [t]error suspects would be tried in a system of military commissions . . . devised by the executive branch",

and because:

"the [executive] order [setting up the military commissions] provided that “it is not practicable” to apply “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” . . . The Department of Defense circulated internal memos suggesting that, in the commission system, defendants would have only limited rights of confront their accusers, see all the evidence against them, or to be present at their trials. There would be no right to remain silent, and hearsay evidence would be admissible, as would evidence obtained through physical coercion. Guilt did not have to be proved beyond a reasonable doubt".

Mayer has no information from Addington himself about his views and actions with respect to the military commissions or any other matter. As she notes, and apparently as is largely dictated by his extensive national-security work, Addington “is extremely private”, “does not speak to the press or allow photographs to be taken for news stories”, and “declined repeated requests to be interviewed for this article”. She also admittedly has no “public paper trail”, and likewise has no non-public “paper trail” (oh, where are those anti-Bush leakers when you need them?), that disclose any such views or actions.

Accordingly, Mayer is forced to rely on a hodge-podge of alleged statements by third-party sources to fabricate her construct of Addington as a man whose views and actions are blatantly and knowingly unconstitutional. She sums up her fabrication in Colin Powell’s alleged and (since Powell admittedly disavowed them) probably made-up words that “Addington . . . doesn’t care about the Constitution”.

Mayer’s alleged sources are multitudinous, suggesting her hope that ostensible verisimilitude can be achieved through mass, and include alleged “constitutional” scholars and experts, Addington’s childhood acquaintances, an Addington sister, the military attorney representing a Guantanamo detainee, and many disgruntled present and former government lawyers and employees. Some sources are named, but most are predictably anonymous, being identified only by such favored reportorial sobriquets as “prominent Washington figures”, “someone who knows”, a “former high-ranking Administration lawyer”, “Many constitutional experts”, “prominent constitutional scholars”, “colleagues”, a “former colleague”, a “former top [CIA] lawyer”, a “former military official”, a “former national security lawyer”, “other administration lawyers”, “other hard-line lawyers”, “another participant”, “yet another participant”, “many administration officials”, “multiple sources”, “administration lawyers”, a “senior Administration legal adviser”, “Government officials”, “members of the Administration”, “critics”, “other officials”, “sources familiar with the meeting”, “a former Administration official”, “several talented top lawyers”, “other reform minded government lawyers”, “those involved”, “top N.S.A. lawyers”, and “some constitutional scholars”.

Mayer’s assertions are unsupported and unsupportable. As Points A and B below demonstrate, Mayer is simply wrong, and deceitful, in asserting that the Administration’s use of the military commission, and its other actions, are out of the constitutional mainstream. As points C and D demonstrate, Mayer has simply failed to provide any reliable information as to Addington’s actual constitutional views and his actual role in Administration actions, with the result that her charges that he “doesn’t care about the Constitution”, and that those actions were “all Addington”, are unproven.

A. The Hamden Decisions, And Mayer’s Deceit, Demonstrate That Her Assertions About The Military Commissions Are Wrong. – Mayer’s basic premise is that the Administration’s positions on the military commissions and other matters are so far out of the mainstream of constitutional interpretation that those positions amount to a trashing of the Constitution (with, as caricatured in the cartoon accompanying her article, Addington as the chief trasher). Unfortunately for Mayer, and even if we assume for argument’s sake that Addington was the architect of those positions, the judicial decisions culminating in the recent Supreme Court decision in Hamdan v. Rumsfeld destroy her premise and, whatever they mean for the future of military commissions, demonstrate the shallowness and unreliability – indeed, the gross error – of Mayer’s basic constitutional and legal assumptions. Because the Hamdan decisions so clearly devastate her contentions, Mayer carefully and deceitfully avoids any mention of them, aside from noting the imminence of the Supreme Court decision when her article was published.

1. In Hamdan, a deeply split Supreme Court reversed a Court of Appeals decision, and ruled that Hamdan, a Guantanamo detainee, could not be tried by a military commission convened under the Administration plan. A District Court judge had originally upheld Hamdan’s challenge to his military commission, and ruled that he could not be tried by such commission. On appeal, with now-Chief Justice Roberts on the panel, the three-judge Court of Appeals for the D. C. Circuit unanimously reversed, and upheld the military commission as a proper tribunal to try Hamdan. The Supreme Court granted review, and in late June 2006, reversed the Court of Appeals, and ruled that Hamdan could not be tried by the commission, in a decision by Justice Stevens joined in part by four others (Justices Kennedy, Souter, Ginsburg and Breyer), and in part by only three others (Justices Souter, Ginsburg and Breyer). Three dissenters (Justices Scalia, Thomas and Alito) would have affirmed the Court of Appeals and ruled that Hamdan could be tried by the commission. Chief Justice Roberts did not participate, but his involvement at the Court of Appeals level makes clear that, had he participated, he would have joined the dissenters and made four Justices voting to uphold the commission.

It is unnecessary here to discuss the complexities of the Hamdan decisions, or to examine Justice Scalia’s contention that the Supreme Court majority has “made a [statutory] mess”. It is enough to note the following to demonstrate that the Hamdan decisions devastate Mayer’s article, and reveal her to be ignorant (as are most journalists) of the pertinent law, and deceitful in failing to reveal clearly material facts.

2. When Mayer’s article was published, the effective decision with respect to the military commissions was the three-judge Court of Appeals decision in Hamdan upholding the commissions. Giving credence to the accusations noted above that she often distorts and omits facts, and ignores evidence that doesn’t fit her story-line, Mayer never discusses, or even reveals, the existence of the Court of Appeals decision or the fact that – contrary to her assertions of Administration overreaching, unconstitutional action, disregard of previously known legal boundaries, and undue deprivation of detainees’ procedural rights – the decision held that the creation and use of military commissions were proper exercises of presidential power. Thus, the unrevealed truth is that, even assuming the unproven premise that Addington was totally responsible for the commissions and had forced them through over the objections of others, at the time of Mayer’s article the Court of Appeals had made clear that such commissions were not only not out of the constitutional and statutory mainstream, but were entirely legitimate presidential instruments.

The fact that Mayer noted the imminence of a Supreme Court decision in Hamdan does not excuse her failure to reveal the Court of Appeals decision and its validation of the military commissions. The pertinent question – particularly in light of her reliance on alleged extra-judicial sources that uniformly allege the military commissions to be improper – is not whether there was a Supreme Court decision in the offing, but rather whether an honest journalist could properly refrain from revealing the then-controlling legal authority that unanimously held the commissions to be legal, and showed her alleged sources to be wrong. While you can answer that question for yourself, my own answer is that Mayer was willfully deceitful in failing to disclose and discuss that authority. And her deceitful omission is all the more glaring in light of the fact that the Government had moved to dismiss the case in the Supreme Court on the ground that Detainee Treatment Act had deprived the Court of jurisdiction, and the motion (which the Court had deferred for decision until its decision on the merits, and which was ultimately denied by a 5-3 vote in the final Hamdan decision) was still pending when Mayer’s article was published, with the consequence that if granted (and Mayer could not know whether it would or would not be granted) the unrevealed Court of Appeals decision would have remained the controlling one.

Mayer’s willful failure to disclose the clearly relevant Court of Appeals decision necessarily raises other questions: what else did she omit? Did she fail to reveal statements by her alleged sources that were inconsistent with, or modified, the statements she attributes to them? Did she fail to reveal interviews she had, or documents she read, or knowledge she otherwise acquired, that contradicted her alleged sources or her own assertions? In other words, her undeniable omission – for the obvious reason that her story-line was flatly contradicted by the Court of Appeals decision – has the unavoidable consequence of calling into question everything else she says, and making one wonder what else has she omitted to tell us because it shows her premises to be false. [The situation that Mayer has created by her omission reminds me of the common jury instruction – and you can pretend here that you are a juror sitting in judgment on Mayer and her article -- that, if jurors find that a witness has lied, either by actual misstatement or by omission, with regard to any one matter, they may properly disregard the witness’s entire testimony.] And in fact, as shown hereafter, Mayer has omitted many other material facts that contradict her story-line and her alleged sources.

3. Mayer is not saved from the consequences of her omission by the fact that the Supreme Court in Hamdan reversed the Court of Appeals, for the following reason.

There are now 12 judges who have dealt with the Hamdan issues: one District Court judge, three Court of Appeals judges and eight Supreme Court Justices. Of those 12, six have upheld the use of the military commissions (the three Court of Appeals judges and three Supreme Court Justices), while six (the District Court judge and five Supreme Court Justices) have rejected their use. It is certainly true that the Supreme Court decision rejecting use of the commissions is now the controlling legal authority, and all lower court judges are bound to follow it. However, the fact that six judges upheld the commissions when they had the authority to do so, while six judges went the opposite way, demonstrates that the issues raised by the creation and use of military commissions are close and difficult ones, and means that it is just plain wrong to assert – as do Mayer and her alleged sources – that proponents of one side of the issues are outside of some constitutional and statutory mainstream. In other words, it is impossible to credit the claims of Mayer and her alleged sources that creation of the military commissions represented a far-out Constitution-trashing grab for presidential power, when six of the 12 judges who have considered the issues actually ruled that the commissions are entirely proper. The decisions of those six judges, who had the duty of deciding the issues fairly and objectively, are certainly far more compelling than the one-sided line-up of the pontificating
liberal “constitutional” experts, the self-interested defense attorney trying to score points for the client he represents, the disgruntled government lawyers and employees, and the many anonymous sources relied upon by Mayer.

4. Hamdan also demonstrates other errors of Mayer and her alleged sources. For example, it shows that Mayer is wrong in suggesting that military commissions are novel and have been rarely authorized or used. As Justice Stevens’ opinion points out, military commissions have long been used. They were “foreshadowed” by a tribunal convened by General Washington during the Revolutionary War, were “inaugurated” as such in 1847 during the Mexican War, were used during the Civil War and World War II, were authorized by the Article 15 of the Articles of War, and continue to be authorized by Article 21 of the Uniform Code of Military Justice.

Hamdan further makes clear the foolishness of the argument by Mayer and her alleged sources that the Administration improperly relied on Ex parte Quirin as precedent for the military commissions because, as they claim, Quirin is “arcane, “out of date” and “one of the worst Supreme Court cases ever”. Justice Stevens’ opinion makes clear, contrary those contentions, that the Administration’s reliance on Quirin “is both appropriate and unsurprising”, and that Quirin is still good law by citing it in his opinion over 25 times (Justice Kennedy’s concurring opinion also cited Quirin, Justice Thomas’ dissent cited it some 15 times, and Justice Alito’s dissent cited it twice).

B. Mayer Is Also Wrong, And Deceitful, About Other Administration Activities Of Which She Complains. – The Hamden decisions, and Mayer’s willful concealment of the Court of Appeals decision, do more than kill her contentions of gross constitutional overreaching with respect to the military commissions. Those decisions and that concealment also raise serious questions about Mayer’s other claims of such overreaching, and create the logical and circumstantial inference that all those other claims are just as wrong and deceptive as her claims about the military commissions.

For me, that inference would be enough to say that Mayer’s other claims cannot be credited. But one need not rely upon inference alone, because Mayer actually is as wrong and deceptive with respect to her other claims as she is about the military commissions. The following examples, involving use of presidential signing statements and warrantless surveillance, demonstrate her further errors and deceptions.

1. Mayer and her alleged sources assert that the presidential signing statements, by which the President explains his construction of a bill he is signing into law, and which he has allegedly “added to more than seven hundred and fifty laws” are something new and dangerous created by the Administration, with Addington as their “leading architect”. Accordingly, say Mayer and her sources, “constitutional scholars find [the statements] troubling”, the statements are “sneaky and subversive”, it is “frightening . . . that this Administration is always willing to push the conventions to the limit – and beyond”, and the statements are “unconstitutional as a strategy”.

Mayer blatantly misstates when she asserts that the President has “added [signing statements] to more than seven hundred and fifty laws ”, because – as she certainly knows – the President “hasn’t signed anywhere near 750 laws”. The ABA’s Agenda, WALL STREET JOURNAL (7/31/06). Moreover, she omits to state that – as she also surely knows – presidential signing statements, far from being a novel creation of Addington and the present Administration, have a long, long history of use by many presidents:

"Signing statements have a long history. President Monroe signed a bill mandating a reduction in the size of the armed forces but used a signing statement to eschew a congressional attempt to dictate the method for selecting officers . . . Presidents Grant and Carter used the statements to rebuff congressional attempts to force them to close certain consulates and embassies . . . Use of the statements has been increasing ever since the 1980s. President Reagan issued 71 constitutional challenges in his eight years. President George H.W. Bush issued 146 in his four years, and President Clinton issued 105 in his two terms". Bar None, NEW YORK SUN (7/26/06), p. 10.

In addition to those presidents identified by the NEW YORK SUN, signing statements were also used by Presidents Jackson, Tyler, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Nixon, Ford, Kennedy and Lyndon Johnson.

Mayer also fails to note that Walter Dellinger, head of the Office of Legal Counsel in the Clinton administration, wrote a well-known and often-cited 1993 memorandum pointing out that presidential signing statements are clearly constitutional. Mayer certainly knew about Dellinger and his memorandum – if she didn’t, we can add incompetence to her faults. It is also highly likely, if not a certainty, that Mayer interviewed Dellinger and read his memorandum in preparing her article. And given her penchant for leaving out material that undercuts or disproves her story-line, I think it a legitimate inference that, just as she grossly overstates the number of the President’s signing statements, and just as she fails to tell us that many presidents have used such statements, she also did not reveal her Dellinger interview and his memorandum because they too demonstrate the total speciousness of her claims, and those of her alleged sources, that the use of signing statements by this Administration is unprecedented and unconstitutional.

Mayer does tell us that “the American Bar Association [has] voted to investigate whether President Bush had exceeded his constitutional authority” by using the signing statements, and after publication of her article the ABA investigative panel issued a report criticizing the Administration’s signing statements as unconstitutional. Of course, Mayer does not reveal that the ABA [disclosure: I am an ABA member] is an organization now well-known to have been largely captured by liberal activists, and that its investigating panel was unfairly stacked with activists opposed to the Administration’s views. As pointed out in the WALL STREET JOURNAL article cited above, it was simply make-believe for the ABA to pretend that the panel was made “fair” by inclusion of three “conservatives”, because “all three are known critics of the Bush Administration’s interpretation of executive power, and two of them [including Mayer’s alleged source Bruce Fein] . . . have been consistently vocal about it”, and because “the ABA excluded [from the panel] such Democrats as Walter Dellinger”.

Dellinger himself (who is cited at least 12 times in the panel report) and professors from Duke Law School (Curtis Bradley), University of Chicago Law School (Eric Posner) and Harvard Law School (Lawrence Tribe) have been quick to point out that the report, which has not been adopted by the full ABA, is plainly wrong. Dellinger points out that

"the [ABA panel] . . . erroneously interprets the Constitution as forbidding the president . . . to declare, while signing a bill into law, that the bill has an unconstitutional provision that he will not enforce . . . Until the panel issued its report, I had thought the matter was settled. Every modern president has agreed that there are circumstances in which the president may appropriately decline to enforce a statute he deems unconstitutional. There is, moreover, significant judicial approval of the practice . . . A president’s ability to decline to enforce unconstitutional laws is an important safeguard of both separation of powers and individual liberty . . . When a bill with a thousand provisions includes one that is unconstitutional, the Constitution does not force the president to choose between two starkly unpalatable options: veto the entire bill or enforce an unconstitutional provision. A signing statement that announces the president’s intention to disregard the invalid provision offers a valuable, and lawful, alternative . . . It is . . . a mistake . . . [to deny] to this and future presidents the essential authority, in appropriate and limited circumstances, to decline to execute unconstitutional laws. A president is right to use signing statements to explain how he intends to faithfully execute the law and uphold the Constitution." Dellinger, A Slip Of The Pen, THE NEW YORK TIMES (7/31/06), p. A17.

And, according to Bradley and Posner,

"That [the ABA panel’s] conclusion is false is well known to constitutional law scholars . . . For decades presidents have used signing statements to express constitutional objections to specific provisions in bills that bear their signatures . . . The type of argument made in the signing statements has changed little over the years. The constitutional arguments made in President Bush's signing statements are similar – indeed, often almost identical in wording – to those made in Bill Clinton's statements . . . The signing statement does not nullify part of a bill; provisions rejected by the president remain enforceable in court.". Bradley & Posner, Signing statements: It’s a president’s right, THE BOSTON GLOBE (8/3/06)

And see Tribe, ‘Signing statements’ are a phantom target, THE BOSTON GLOBE (8/9/06) (“The final report of the [ABA panel] . . . barks up a constitutionally barren tree . . . [S]igning statements . . . are informative and constitutionally unobjectionable”); see also Whelan, Shut Up, They Explained – The ABA’s latest anti-Bush strike, THE WEEKLY STANDARD (8/7/06) (“[The ABA has been c]aptured for the past two decades by the left . . . [The ABA] stacked [the panel] with fervent opponents of President Bush, including three Republicans who had already criticized President Bush’s use of signing statements . . . [The panel’s report] is wrong and unworkable . . . [and] is, at every level a shoddy piece of work – poorly reasoned, sloppily written, and displaying a pervasive misunderstanding of how the American constitutional scheme does, and should, work . . . It is a sorry testament to the state of legal academia today that prominent academics on the [panel] . . . would sign off on such a report”).

There is no doubt, I believe, that Dellinger, Bradley, Posner and Tribe (and Addington, assuming he believes them to be proper) are correct about the constitutionality of signing statements, and that the ABA panel and Mayer’s “constitutional” experts are wrong – so wrong that it is they, and not Addington or the Administration, who would “trash” the Constitution. But even if we assume for argument that the panel’s report somehow has merit, the substantial historical, judicial and scholarly support for the constitutional propriety of the statements is so strong that no one could legitimately say that their use by the Administration is out of the constitutional mainstream or a “trashing” of the Constitution. Accordingly, Mayer’s deceptive complaints about such use are little more than utter nonsense.

2. The other example involves Mayer’s assertions that the Administration improperly engaged in warrantless electronic surveillance. According to Mayer and her alleged sources, Addington and Cheney said that “the President . . . had the authority to override the FISA statutes and not seek warrants” for such surveillance and “pushed the N.S.A. to engage in [warrantless wiretapping] that the agency thought [was] illegal”; “prominent constitutional scholars . . . claim that the N.S.A. surveillance program ‘appears on its face to violate existing law’”; “Bush had made no effort to amend the FISA law . . . [and] simply ignored it”; and “this is so sinister . . . [because Administration members] don’t care if the wiretapping is legal or not”.

But, here again, Mayer does not reveal that there is substantial judicial and other support for the conclusions that FISA does not apply to the Administration’s warrantless surveillance program, and that, contrary to the distorted picture she would paint, the President has clear constitutional and legal authority to proceed with the program. Those authorities, which are too extensive to adequately set forth here, are detailed in, for example, a commentary On The Legality Of The NSA Electronic Intercept Program. The authorities are also partially, and somewhat grudgingly, summarized in an article by Senator Arlen Specter (certainly no friend of the Administration on the surveillance issue), as follows:

"The president has insisted that he was acting lawfully within his constitutional responsibilities . . . [T]hree federal appeals court decisions suggest the president may be right . . . The president’s constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s ‘reasonableness’ test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power”. Specter, Surveillance We Can Live With, THE WASHINGTON POST (7/24/06), p. A19.

So here again, with respect to the Administration’s surveillance program, we have Mayer and her alleged sources asserting their totally one-sided, partisan contentions that the program is unlawful and unconstitutional, without revealing the substantial judicial and other authority to the contrary. And the existence of that substantial authority necessarily means that the Administration program is not out of the constitutional mainstream, and that once more Mayer’s complaints cannot be taken seriously.

* * *

The foregoing Points A and B have assumed that, as Mayer asserts, Addington “played a central role in shaping the Administration’s legal strategy” and “the Administration’s legal positions were . . . ‘all Addington’”. As the following Points C and D show, however, Mayer’s article contains no reliable information whatsoever from which one can determine Addington’s constitutional views or his role in Administration actions.

C. Mayer’s Conclusions Are Flawed Because They Are Not Based On Any Relevant Or Probative Statements Of Addington Himself. – It is elementary that if you want to establish a person’s views, opinions and beliefs, or his reasons for actions, or his intentions for future actions, you would look to his own statements, both oral and written, as to those views, opinions, beliefs, reasons and intentions. Similarly, if you want to establish what he said in a meeting or conversation or wrote in a document as to those matters, you would look to the actual statements he made at the meeting or in the document. To put this common-sense point in a legal context, testimony that the person made such statements, by a witness who actually heard the statements, might technically fit the definition of hearsay, but the testimony could be admissible as an exception to the hearsay rule in that the statements are admissions by the person or show the person’s state of mind.

Accordingly, if one wanted to establish Addington’s interpretation of the Constitution, or his view of presidential powers thereunder, or how he shaped “Administration legal strategy for the war on terror”, or how he was “instrumental in creating” the military commissions and other Administration programs, you would need to know what he said and wrote about such interpretation, what he said or wrote about such views, what he said or wrote in shaping such strategy, and what he said or wrote with respect to such creation. A fundamental flaw of Mayer’s article is that, despite the multiplicity of her alleged sources and their alleged many contacts with Addington, the article does not contain a single relevant statement – oral or written – by Addington with respect to those matters.

The Mayer article contains only the five following instances in which Addington seems clearly alleged to have spoken the specific words attributed to him:

1. As a teen-ager, Addington “told” a friend that “he hoped to live in Washington himself when he grew up”.

2. Addington attended a Special Forces demonstration and later “said” that “This is how real covert operations are done”.

3. Addington “told” his high-school friend that “he and Cheney were merging the Vice-President’s office with the President’s into a single ‘Executive Office” instead of having ‘two different camps’”, and that “Cheney saw the Vice-President as the executive and implementer of the President”.

4. At a meeting a few days after September 11, where “even the most extraordinary proposals” were allegedly considered, Addington would “say, ‘No, that’s not right.’”, and “whenever [one participant allegedly] cautioned against executive-branch overreaching”, Addington “would respond” that “There you go again, giving away the President’s power”.

5. In 2002, Addington was allegedly told that “potentially innocent people had been locked up in Guantanamo and would be indefinitely” and that “This is a violation of basic notions of American fairness”. He “respond[ed]” that “These are ‘enemy combatants.’ Please use that term. They’ve all been through a screening process. We don’t have anything to talk about”.

It needs no analysis beyond a mere reading of those five alleged statements to demonstrate that they are totally irrelevant, in that they tell nothing about Addington’s actual understanding and interpretation of the Constitution, his actual views of the extent of presidential power, or his actual role in any of the matters complained of by Mayer and her alleged sources. Even Addington’s alleged statement in instance 4 that “There you go again, giving away the President’s power” has no probative value, because there is no way of knowing the specific content of the alleged “cautions” and the specific alleged instances of “executive-branch overreaching”, to which he was responding. Similarly, Addington’s alleged statement in instance 5 doesn’t prove anything beyond Addington’s understanding that all the Guantanamo detainees had “all” been screened and found to be “enemy combatants”.

The Mayer article contains the following two additional alleged instances in which it is unclear whether Addington actually spoke the words set forth:

6. Addington and Cheney “told” top N.S.A. lawyers that “the President, as Commander-in-Chief, had the authority to override the FISA statutes and not seek warrants from the special court”.

7. In discussions about reforming the original rules for the military commissions, Addington “insisted . . . on maintaining the admissibility of statements obtained through coercion or even torture”, “argued that officials in charge of the military commissions should be given maximum flexibility to decide whether to include such evidence”, “said the rules were good, right from the start”, and “accused officials [advocating reform] of ‘giving away the President’s prerogatives.’”

In instance 6, we can’t tell that Addington (rather than Cheney) actually said the words alleged, but even assuming that he did, it shows nothing more that an understanding of presidential authority consistent with the substantial judicial and other authority noted above and recognizing that authority. Instance 7, even assuming that the words “insisted”, “argued” and “accused” could be deemed to be the equivalent of “said”, tells us nothing about Addington’s views or role, beyond an alleged opinion of the kind of evidence that ought to be admissible in military commissions, the propriety of which at the time of Mayer’s article had been established by the Court of Appeals decision in Hamdan. Ironically, instance 7 has a negative probative effect for Mayer and her sources, in that, as Mayer concedes, “Addington lost this internal battle” for the continued admissibility of “coerced testimony”, a result totally inconsistent with Mayer’s alleged picture of Addington as a hard driving, bullying, ruthless ideologue who was “an unopposable force” and always got his way.

There are two other instances, as follows, of alleged statements by Addington, but they are particularly suspect because Mayer’s alleged sources did not hear Addington make the statements, but allegedly heard about them from others than Addington:

8. Laurence Wilkerson, a former aide to Colin Powell, said “We had heard that, behind our backs, [Addington] was saying that Powell was ‘soft, but easy to get around.’”

9. A purported former colleague of one Waxman (a “young lawyer who headed the Pentagon’s office of detainee affairs”) said Waxman told him that Addington “accused Waxman of wanting to fight the war on terror his own way, rather than the President’s way”.

Even assuming that instances 8 and 9 could somehow be deemed credible, and assuming that Addington said the words attributed to him, they still tell us nothing about his constitutional views or his role in Administration activities, and are irrelevant. But it is also to be emphasized that they are inadmissible hearsay of the grossest kind, and should be disregarded. I know that reporters and journalists not bound by evidentiary rules applicable in civil and criminal trials, such as the hearsay rule, although I do call attention to the anomaly of Mayer’s expressing outrage at the idea of “hearsay evidence” being admissible at military commission trials of terrorists, but nevertheless employing such hearsay in her attempted character assassination of a public servant active in the war against such terrorists. [Similarly incongruous is Mayer’s expressions of alarm that at such trials terrorist “rights to confront their accusers” might be curtailed, while at the same time attacking Addington through the accusations of a huge array of unconfrontable anonymous accusers.] However, when you realize that Mayer has deliberately concealed so many facts that contradict her false story-line, and that she relies on such unreliable hearsay and irrelevant allegations for support of that story-line, you see again that her article is nothing more than an unjustified political hatchet job.

* * *

Having no relevant statements of Addington himself that establish his constitutional views or his role in Administration actions, Mayer falls back on what is standard material for deceitful journalists: innuendo, gossip, rumor, more unreliable hearsay and unsupported conclusory assertions. Space considerations keep me from dealing with all of her flimsy assertions, but the following examples are illustrative.

D. Mayer’s Conclusions Are Flawed Because They Are Not Based On Any Reliable Or Probative Evidence About Addington. – The following examples demonstrate the unreliability of Mayer’s assertions, and the flimsiness of her case against Addington.

1. Mayer’s opening anecdote is a striking signal that she has no real evidence about Addington’s constitutional views or about his role in Administration actions. According to Mayer, Colin Powell and “prominent Washington figures” were in a skybox at a December Redskins-Cowboys football game, when Powell spoke of the recent NEW YORK TIMES report of secret warrantless NSA surveillance. According to “someone who knows Powell”, says Mayer, Powell stated that “It’s Addington . . . He doesn’t care about the Constitution”. The anecdote sounds on its face like something good for Mayer’s case, but when you stop to think about it you realize that it is more negative than positive for her, for many reasons.

First, notice that Mayer’s alleged source is “someone who knows Powell”, not one of the “prominent Washington figures” in the “skybox” who allegedly heard the statement. So we have an unnamed alleged source, who at best was told by someone else (unknown and unacknowledged) that Powell had said something about Addington at a football game, but who more likely heard the “story” third or fourth or fifth hand down a chain of untrustworthy gossip and innuendo by unknown gossipers. Here again, and either way, we have Mayer relying upon the grossest kind of unreliable and worthless hearsay. Second, Mayer uses the statement attributed to Powell even though she was admittedly told in no uncertain terms that Powell “does not recall making the statement”. She obviously felt she needed to include the disavowed-statement because Powell is a well-known and generally well-respected former Administration member, and she clearly calculated that any critical view he could be said to have expressed about Administration policy and about an Administration figure like Addington would resonate among her lefty admirers. But in doing so, she actually undercuts Powell’s own credibility, because her use of his admittedly-disavowed statement necessarily means that she treated her unidentified gossip-monger’s alleged tale that Powell made the statement as more credible that Powell’s disavowal of the statement.

Third, Mayer astoundingly asserts that it makes no difference that Powell disavowed the statement (if it makes no difference, why did she use it, let alone lead-off with it), because his former aide Wilkerson “confirms that he and Powell shared this opinion of Addington”. Of course, it is hard to give any weight to an assertion that Powell/Wilkerson held an opinion of Addington allegedly expressed in a statement that Powell refuses to acknowledge. More significantly, and even aside from the fact that Wilkerson’s purported statement of Powell’s opinion is more of Mayer’s unreliable and worthless hearsay, the Powell/Wilkerson opinions of Addington’s constitutional views are simply irrelevant, because the material issue here is not what Wilkerson and Powell thought about those views, but rather what were Addington’s actual constitutional views – and, as made clear above, Mayer supplies no evidence whatsoever with respect thereto. Fourth, why should we accept Mayer’s implicit assumption that Powell/Wilkerson have better, or more informed, or more knowledgeable, or more reliable, or more accurate views of the Constitution, and its division of presidential, congressional and judicial powers, than does Addington? Just as she gives us no evidence of Addington’s views on those matter, Mayer supplies no evidence of the Powell/Wilkerson views, with the consequence that we have no basis for comparing their views with Addington’s or for determining whether Powell/Wilkerson have any basis for, or even know what they are talking about, or (to use a phrase attributed to one of Mayer’s sources) just “[don’t] know shit”, when they allegedly assert that Addington “doesn’t care about the Constitution”.

Fifth, Mayer unwittingly demonstrates that Powell/Wilkerson have a consuming prejudice against Addington, and that their assertions about him are nothing more than a biased attack on a person they regard as a political and bureaucratic enemy. Mayer tells us that, according to Wilkerson, Addington “left [Powell] out of key deliberations about the treatment of detainees”; Powell/Wilkerson “had heard that, behind our backs, [Addington] was saying that Powell was ‘soft, but easy to get around’”; Powell “was not consulted” by Addington about issuance of the executive order setting up the military commissions; Addington “did not show drafts of the order to Powell”; Powell/Wilkerson were left in the dark because Addington “had secretly usurped the process”; and “the decision [to issue the executive order] stunned Powell”. Mayer also says that Wilkerson had “sparred with [Addington]” and disliked him because “He’s utterly ruthless”. While the accuracy of those assertions is not clear, it is certain that Wilkerson – by using such emotionally-loaded accusations as “left out”, “behind our backs”, “not consulted”, “did not show drafts”, “usurped”, “stunned” and “ruthless” – is talking about bureaucratic battles that Powell/Wilkerson lost to Addington and that made them furious with Addington. Mayer having provided no evidence of any rational justification for the Powell/Wilkerson assertion that Addington “did not care about the Constitution”, the only logical explanation is that their assertion was nothing more than a ridiculous exaggeration churned up by their anger and bias toward Addington for, as it were, mugging them in the bureaucratic infighting for which Addington, according to Mayer, has a “talent”. Indeed, even if we assume that Powell actually made the statement attributed to him at the football game, his subsequent refusal to “recall” it creates the strong inference that, upon more mature reflection, he recognized it to be an ill-considered knee-jerk expression of anger and bias that he ought not to have publicly revealed or articulated. Sixth, in considering the alleged Powell/Wilkerson statement, it is important to keep in mind that Mayer is a deceitful reporter who willfully omits material matter contradicting her premises. We therefore cannot assume that she is not – I personally would say that on her record we have to assume that she is – concealing other information that undercuts her tale about the alleged Powell/Wilkerson statement.

As presaged by her opening anecdote, Mayer relies on other alleged opinions of Addington’s constitutional views that are as worthless, and as surely biased, as the Powell/Addington assertions. For example, says Mayer, “Many constitutional experts . . . question [Addington’s] interpretation of the [Constitution], especially his views on Presidential power”. She names only two of her “many” experts, one (Horton from Columbia Law School) who allegedly says that Addington “had attempted to ‘overturn two centuries of jurisprudence defining the limits of the executive branch”, and the other (“libertarian” law professor Epstein from Chicago) that “The Administration’s lawyers are nuts” because “their talk of the inherent power of the Presidency seems to be saying the courts can’t stop them, and neither can Congress”. Mayer also quotes two “liberal” historians, one (Arthur Schlesinger, Jr.) who says that “Bush is more grandiose that Nixon”, and the other (Wilentz from Princeton) that “this White House has assumed powers for itself that no previous Administration has done”. And Mayer quotes Fein, a so-called “Republican legal activist” who allegedly twice voted for Bush (a qualification like “he can’t be anti-Semitic because his best friend is a Jew”) as saying that the Administration has “staked out powers that are a universe beyond any other Administration . . . [A]ccording to [the President’s] view, he could kill someone in Lafayette Park if he wants! It’s got the sense of Louis XIV: ‘I am the state.’” Fein is also quoted as saying, despite the substantial contrary authority already noted, that “Addington’s signing statements are ‘unconstitutional as a strategy’”.

It is unclear, except for the last Fein quote, whether these sources are actually referring to Addington, or whether they were talking about the Administration generally, with any tie to Addington being supplied by Mayer as part of her fabrication of an alleged Addington persona. In any event, these sources speak in overwrought generalities that tell us nothing about Addington’s constitutional views. For example, for Schlesinger and Epstein to state their opinions that Bush is “more grandiose” and Administration lawyers are “nuts” gives us no information about the relevant issues, namely, what did Addington say or write that would inform us of his constitutional views or tell us what role he played in Administration actions. Furthermore, neither Mayer nor any these sources, even the two she ipse dixit denominates as constitutional “experts”, tell us their own specific constitutional views, such as, for example, their views of the precise extent of presidential powers provided by the Constitution. Accordingly, with no showing of Addington’s constitutional views, and no showing of these sources’ views (other than that the Administration is “grandiose” and “nuts”), we have, just as with the Powell/Wilkerson generalities, no basis for concluding that Mayer’s “experts” have any better or more accurate understanding of the pertinent constitutional provisions than does Addington.

Moreover, these sources’ assertions are so clearly wrong as to be frivolous. Take the accusations that the Administration would overturn “two centuries of jurisprudence” (Horton), and has assumed “powers . . . that no previous Administration has done” (Wilentz) and “powers that are a universe beyond any other Administration” (Fein). We know, for example, as shown above, that presidential signing statements have been used by many presidents and judicially approved for almost 200 years, and these sources’ accusations of breaking with “two centuries” of past practice and assumption of never-before-exercised “powers” are obviously incorrect with respect to the Administration’s current use of such signing statements. We likewise know, as also shown above, that military commissions trace their origins back more than 200 years to the Revolutionary War, and have long been used by various administrations and statutorily and judicially sanctioned, and such accusations are similarly incorrect with respect to the Administration’s current use of the commissions. And, as we know, the accusations are simply inapplicable to electronic surveillance, which is a technical innovation so recent that it was unavailable to practically every prior administration; in any event, any suggestion that such use not in accord with judicial authority, or is the improper exercise of an unwarranted power, is simply not in accord with the judicial and other authorities, also noted above, establishing the legality and propriety of such use.

Consider also other nonsense asserted by these sources. For example, Fein’s assertion that the President is “another Louis XIV”, and holds the view that “he could kill someone in Lafayette Park if he wants!”, is so deranged, so downright stupid and so clearly a reflection of a virulent anti-Bush bias that it discredits everything Fein says. [By the way, isn’t Fein mixed up, and wasn’t it Vince Foster’s death in Lafayette Park, ostensibly a suicide, that was widely-speculated to have been engineered by the Clinton (not Bush) administration in which Foster worked?] Similarly, Epstein’s assertion that Administration lawyers seem “to be saying that the courts can’t stop them, and neither can Congress” is patent foolishness from a partisan liberal. Not only has there been plenty of Court review of Administration actions and programs, but there has also been plenty of Congressional activity (often unwarranted) with respect thereto. For example, the Administration’s plan for the military commissions has been the subject of extensive Court review (the Hamdan decisions), and the Administration is preparing to submit proposed legislation to Congress with respect thereto. See White House Bill Proposes System To Try Detainees, THE NEW YORK TIMES (7/26/06); compare Goldsmith & Posner, A Better Way on Detainees, THE WASHINGTON POST (8/4/06). For another example, the Administration is cooperating with Congress with respect to legislation that would permit judicial review of the wireless surveillance program. See Specter, Surveillance We Can Live With, THE WASHINGTON POST (7/24/06), p. A19.

So we have a couple a constitutional “experts”, a couple of historians and a dope worried about being killed in Lafayette Park, whose ridiculous complaints about Administration activities are contrary to fact and law, and whose conclusory and erroneous opinions tell us nothing about Addington’s actual constitutional views or his actual role in such activities. My guess is that here, as elsewhere, Mayer didn’t tell us everything these sources told her, but for once I commend her for not doing so, because I am sure it would be just more of the same liberal clap-trap she already attributes to them.

3. Another of Mayer’s worthless sources is Major Dan Mori, the “uniformed lawyer who has been assigned to defend . . . one of the [Guantanamo] suspects”. According to Mori, the military commissions are “a political stunt” conceived of by an Administration that “didn’t know anything about military law or the laws of war”, that has “a vested interest in conviction” and that was “inept, incompetent, and improper”. Here again, this source tells us nothing about what Addington said or did, nothing about Addington’s constitutional views, and nothing about Addington’s role with respect to the military commissions or any other matter. Indeed, he doesn’t even mention Addington.

Moreover, Mori is not credible. He is the appointed defense attorney for a Guantanamo detainee facing trial before a military commission, and he predictably says things that would support a claim on behalf of his client that the commission is improper (if he had been appointed to prosecute the detainee, he would be saying just the opposite). I personally believe that Mori’s comments are baloney (I suspect he does too), but if I represented his client I would say the same things he did. Mori clearly has an axe to grind, and no credence can be given to his self-serving assertions.

4. Mayer refers to alleged sources who purport to describe conversations or meetings with Addington. However, except for the few irrelevant instances already noted, these sources do not tell us anything that Addington actually said, but instead tell us their alleged summary interpretation of Addington’s alleged participation (I think these summary interpretations are often Mayer’s, but I am going to assume here that they were made by the alleged source). One Berry said he “talked to [Addington] . . . a little” about the need to be “aggressive” in trying to “prevent . . . another [9/11] attack” and “Addington felt this keenly”. One Shifrin said that at a meeting a few days after 9/11, Addington “was particularly strident, . . . doctrinaire and ideological”, “didn’t recognize the wisdom of the other lawyers” and “was always right”, “knew [all] the answers”, “left [Shrifin] with the impression that Addington ‘doesn’t believe there should be co-equal branches’”, and “Addington’s manner in meetings was ‘very insistent and very loud’”. Anonymous “[g]overnment officials who have worked closely with Addington” said “he insists that legal flexibility is necessary”, and “he does not believe that the legal positions taken by the Bush Administration . . . have damaged the country’s international reputation”. A “senior Administration legal adviser” said “[Addington’s] a very smart guy, but he gives no credibility to those who say these policies are hurting us around the world”, “[h]is feeling is that there are no costs”, “[h]e thinks most [people who are whining] would be against us no matter what”, and it is “Addington’s view” that “critics of the Administration’s aggressive legal policies are just political enemies of the President”. A “former Administration official” said that, at the meeting identified in instance 5 above of the actual statements attributed to Addington, “Addington was the ‘dominant voice [and it] was a non-debate in his view”; it was “clear that Addington had been informed early that there were problems at Guantanamo; and there “wasn’t a lack of knowledge or understanding”. Shrifin says, with respect to the meeting identified at instance 6 above, a meeting he did not even attend, that he “doubted that the N.S.A. lawyers were expert enough in Article II of the Constitution . . . to argue back” to Cheney and Addington.

Such statements are, as the emphasized portions make clear, nothing more than each alleged source’s own conclusory characterization or opinion of what he wants us to believe was the thrust of what Addington said. Those characterizations and opinions give no clue as to what Addington actually said or what statements he was responding to, and that failure means that we have no way to determine, for example, whether the source’s characterization or opinion is correct or incorrect, whether it is objective or biased, whether it is truthful or untruthful, whether it accurately reflects everything Addington said or not, whether it accurately reflects the context of what he said or not, whether it is misleading or not, and whether another observer (such as a juror or the reader of a magazine article) would make the same characterization or form the same opinion. The statements would not be admissible in a court and, because they are so unreliable and of no probative value, they are also worthless here and in any other context.

Take, for example, Shifrin’s alleged conclusory observations that Addington was “strident . . . doctrinaire and ideological”, and “insistent” and “loud”– can you tell therefrom what Addington actually said, so as to get a feel for his constitutional views? Or Shifrin’s conclusory observations that Addington was “always right”, “knew [all] the answers”, and “didn’t recognize the wisdom of other lawyers” (I personally am with Addington on that last one) –do they tell you anything Addington actually said, or what were his views as to any of the matters complained of by Mayer? Or Shifrin’s conclusory observations that Addington “insists” on legal flexibility and “does not believe” our international reputation has been damaged – can you figure out therefrom what Addington actually said, or what were his views on those matters?

Or Shifrin's so-called "impression that Addington "doesn't believe there should be co-equal branches"-can you tell threfrom what Addington said, what specific assertions he was responding to, or whar are his actual views of the constitutional division of powers, or what are his actual views as to the constitutional extent and limitations on presidential power? Or what about Shifrin's so-called "doubt" that NSA lawyers were "expert enough" to argue with Cheney and Addington--does that "doubt", even passing the admitted fact that Shifrin was not even at the meeting, tell you anything that Addington actually said, or what are his constitutional views? You hardly need me to tell you that the answer to each of the questions is No! No! No!, and that Shifrin's observations are therefore worthless. The same questions can be asked about the other sources' conclusory characteriaztions and opinions, and require the same answers and the same conclusions of worthlessness.

These sources epitomize another serious problem, in that they (and, for that matter, Mayer’s other alleged sources) are not shown to have any qualifications to justify their lecturing us about what a bad guy Addington is, and are not shown to have any better understanding, or a more correct view, of applicable constitutional and legal doctrines than Addington. We do know, from the discussions at Points A and B, that there are plenty of other people more knowledgeable, more qualified, more reliable and more objective than Mayer’s sources, to whom Mayer could have looked to for some real guidance with respect to those doctrines, and who include the likes of Dellinger, Professors Bradley, Posner and Tribe, Chief Justice Roberts and the other two Court of Appeals judges in Hamdan, and Justices Scalia, Thomas and Alito. We can also safely conjecture that Mayer was not interested those better sources, because their analyses flatly contradict her story-line and show it to be wrong.

There is also a high probability that these sources are biased against Addington, and that their assertions about him cannot be trusted. It seems almost certain that Shifrin, for example, hates Addington. Shifrin was “left out” of “the Administration’s initial discussions of the military commissions” and “the Administration’s decision to sanction warrantless . . . electronic surveillance”, despite his claims that that he “should’ve been” involved and that his exclusion was “remarkable . . . exceptional . . . [and] extraordinary”. One explanation for Shifrin’s exclusion, which Mayer and Shifrin seem to imply, is that Shifrin was another casualty of bureaucratic in-fighting with Addington (a demonic “unopposable force”, says Shifrin), but it seems more likely that Shifrin was shunted aside because his legal judgments were suspect – a likelihood strongly suggested by Shifrin’s errors in criticizing the Quirin case as “one of the worst Supreme Court cases ever” and expressing “skepticism” over the Administration’s invocation of Quirin to support the military commissions, errors confirmed by the Supreme Court’s recognition in Hamdan of Quirin’s continuing vitality. Either way, Shifrin has ample reason to be vengeful towards Addington. And in light of the clear likelihood that Shifrin is biased, the likelihood that Mayer’s unidentified sources (to the extent they actually exist) are also biased for similar or other reasons cannot be discounted, particularly with Mayer’s penchant for omitting anything harmful to the tale she spins.

5. Mayer purports to tie Addington to various documents. But here again, she offers nothing but unreliable speculation and insufficient conclusory assertions.

For example, she and her sources criticize an Administration legal memorandum dated January 25, 2002, which “was signed by Gonzales”, but which an unnamed “Administration lawyer” said “he believed that ‘Addington and [Timothy] Flanigan were behind”. Mayer also tells us that, “according to multiple sources”, Addington “secretly usurped the process” and with “a few hand-picked associates . . . wrote the executive order creating the commissions”. Again, Mayer asserts that “according to many Administration officials” Addington “either drafted . . . or advised those who were drafting” various memos, and the clearly-biased Wilkerson said that “Addington’s fingerprints were all over” the memos. Finally, Mayer asserts that, “[a]ccording to the Boston Globe, Addington has been the ‘leading architect’ of [the] signing statements” and “reportedly scrutinizes every bill . . . searching for any language that might impinge on Presidential power”.

Here again, such assertions are, as the emphasized portions make clear, simply each alleged source’s own conclusory characterization or opinion of his version of Addington’s role with respect to a given document, and don’t help us understand what Addington actually said or did with respect to any document, or what statements in the document were his. And, of course, those conclusory characterizations and opinions – most of them made by unnamed sources, with all the problems inherent in the use of such sources – don’t tell us anything about Addington’s actual constitutional views or his actual role in Administration actions.

Thus, the conclusuory assertions of unnamed sources that they allegedly “believed” Addington “was behind” a memorandum and that he “usurped” the process of producing an executive order, and Wilkerson’s similar assertion that Addington’s “fingerprints were all over” memos, are nothing more than speculation and don’t give us a clue as to what Addington actually said or did. The conjectures that Addington “wrote”, “drafted”, or “advised” with respect to, various documents are similarly speculative and unrevealing. It is true that words like “wrote” or “drafted” can sometimes convey first-hand non-speculative information, as when a witness says “I actually watched while Mr. X sat at his desk and wrote in longhand [or typed] a document [or a draft] that I then read and know to be the memo [or draft] that the DA [or a magazine writer] is now talking about”. Mayer’s sources clearly have no such first-hand non-speculative knowledge, and instead are simply stating their irrelevant and probably-biased speculations about who “wrote” or “drafted” memos; indeed, there is no showing that they ever saw the memos, and their speculations are probably based upon office gossip and innuendo. Their equally irrelevant speculation that Addington “advised” is particularly meaningless: I have personally “advised” with respect to literally thousands of legal memos, briefs and other documents, but my “advice” was often so minimal, ignored or distorted that it could not be said to have substantially affected, let alone dictated, the substance of the document. Finally, Mayer’s reference to the Boston Globe’s conclusory hearsay speculations that Addington was a “leading architect” and “reportedly scrutinizes” again tells us nothing that Addington actually said or did, and the speculations are no more reliable for having appeared in the Globe than Mayer’s similar assertions are for being in THE NEW YORKER.

6. Mayer seems ambivalent about Addington the lawyer, apparently being undecided whether to picture him as a good lawyer who by force of intellect bullied the Administration into “unconstitutional” actions, or to show him as a bad lawyer whose misreading of constitutional limitations led the Administration into such actions. Of course, either way, Mayer’s portrait is utter nonsense because, as shown in Points 1 and 2 above, the Administration’s actions had substantial judicial and other support and were clearly in the constitutional and legal mainstream.

Nevertheless, note some of the conflicting comments that appear to relate to Addington the lawyer. Mayer says that “few people doubt Addington’s knowledge of national security law”, and that a “reason for Addington’s [alleged] singular role after September 11th is that he offered legal certitude at a moment of great political and legal confusion, in an Administration in which [none of many top officials] was a lawyer . . . [The Attorney General and White House Counsel Alberto Gonzales didn’t have] anything like Addington’s familiarity with national-security law”. Fein is quoted as saying that “Addington is a satisfactory lawyer”, but elsewhere as saying that “the Bush legal team was strikingly unsophisticated” [Ha Ha! As if Fein, the dope that is worried about death in Lafayette Park, would know from sophistication]. Epstein, in a quoted statement already shown to be nonsense, said that “The Administration lawyers are nuts”. An unnamed “former high-ranking lawyer for the Administration” said that “Bush has been damaged by incredibly bad legal advice”. Unnamed “[p]articipants in meetings in the White House counsel’s office” are quoted as saying “Gonzales doesn’t know shit”, and an unnamed “former high-ranking lawyer” as saying that “Addington was always the force in the room”. As always with Mayer, we have here another collection of speculative and conclusory characterizations and opinions, and are again asked to take on faith that they (even though conflicting) accurately represent the alleged facts on which they are based. Needless to say, in light of Mayer’s proclivity for omission and misrepresentation, the unreliability and possible bias of Mayer and her alleged sources, the conflicting assertions, and the anonymity of many of the sources, such a leap of faith would not be rational. And even if we were to accept the assertions, they still don’t tell anything that Addington actually said or did, or his actual constitutional views, or his actual role in Administration actions.

Mayer talks about Addington’s “tin ear for political issues”, but in doing so she unintentionally demonstrates that he is actually a principled lawyer unwilling to shade his legal judgments to satisfy political pressure. Thus, as her “tin ear” source (a “former colleague”) makes clear, he thereby means that when the “law says one thing” Addington “doesn’t see why you have to compromise” and that his “political skills can be overshadowed by what he feels is legally correct”. Of course, even this source speaks in conclusory terms, so that we can’t tell whether his characterization is justified by the unknown facts upon which he relies. But if one were to assume the correctness of Mayer’s conclusory assertion that Addington was the architect of Administration policies, one must also assume the correctness this source’s characterization, and to accept that Addington pushed for those policies solely because he believed them to be “legally correct”, and therefore that no compromise of those policies was appropriate simply in order to make them more palatable to the President’s political opponents, such as congressional Democrats, left-wing academicians, hold-over Democrats in the State Department, the Pentagon, the NSA, the CIA and other government agencies, the mainstream media, lefty bloggers, and journalists like Mayer.

7. Mayer is also big on guilt by association for Addington. For example, she takes every opportunity to tie Addington to liberal bete noir Cheney. It is true that Addington worked for Cheney at the Pentagon and works for him now, and it is certainly appropriate for Mayer to relate those facts and to assume therefrom that Addington and Cheney have a compatible working relationship. But she goes further and unwarrantedly seeks to establish them to be clones of each other, referring to Addington’s “closeness to Cheney”; asserting that Addington “has been an ally of Cheney’s since the [1980’s]”, that he “clearly shares” Cheney’s “political views”, and that he “has been referred to as ‘Cheney’s Cheney’ or . . . as ‘Cheney’s hit man’”; alleging that “[Addington] and Cheney had been laying the political groundwork for years” to promote “vast executive powers after September 11”; quoting that dope Fein as saying “the idea of reducing Congress to a cipher . . . was Cheney[’s] and Addington’s political agenda”; claiming that “Addington and Cheney became a formidable team”; and asserting that “[Addington] and Cheney led an unsuccessful campaign to defeat [legislation] . . . to ban abusive treatment of detainees”.

As always, Mayer never sets forth anything that Addington ever said or wrote to establish that he is a Cheney clone. She can’t point to any Addington statement, whether orally or in writing, whether in a meeting or in a one-on-one conversation, or whether in a letter or memorandum, that he agreed with Cheney on any issue, or that his constitutional views were the same as Cheney’s, or that Cheney’s political views were his. Moreover, having nowhere in her article given us any reliable evidence of Addington’s constitutional views (whether on the proper extent of presidential power, or any other matter), Mayer is unable to show us how his views are the same as, or even close to, or may coincide in some respects, with Cheney’s views. And Mayer’s failure to demonstrate Addington’s views is not her only fatal flaw; she also gives us no reliable evidence of Cheney’s views, so we are in the impossible position of trying to compare Addington’s unknown constitutional views with Cheney’s unknown constitutional views. And obviously, as I have pointed out over and over, for Mayer to state such speculative and conclusory characterizations and opinions as “closeness”, “ally”, “Cheney’s Cheney”, ‘Cheney’s hit man”, “vast executive powers”, “political agenda”, “formidable team” and “led” does not tell us anything, and the characterizations are worthless. This is why I say that Mayer’s constant harping on Cheney this and Cheney that is a patent effort to tar Addington with whatever bad emanations she thinks come from Cheney – also known as guilt by association.

One other Mayer assertion about Addington-Cheney highlights the manifest weakness of all her Addington-Cheney insinuations. Mayer quotes an unnamed “former high-ranking lawyer for the Administration” as saying that “Addington was more like Cheney’s agent than like a lawyer. A lawyer sometimes says no . . . Addington never said, ‘There is a line you can’t cross’”. Ask yourself a couple of obvious questions – wouldn’t the unnamed lawyer need to have been privy to every single communication between Addington and Cheney to be able to say “never”? Is it credible that that he was privy to every such communication? – and you will understand that there is no way that this source could possibly know that Addington “never” said no, and that his statement is a patent exaggeration, if not a deliberate and outright falsehood. And since we don’t know whether the source – even though alleged to “have worked closely with Addington” – was ever present at any Addington-Cheney communication (in fact, we don’t even know that he actually exists), his conclusory opinion is worthless.

Mayer also feels the need to associate Addington and Cheney with that Democratic epitome of Republican evil, Richard Nixon. She chatters on and on about Nixon, seeking to make it appear that Addington and Cheney are trying to restore a Nixon-type presidency, and quoting, for example, Congresswoman Jane Harman (how surprising, a Democrat) as saying that Cheney and Addington are “still fighting Watergate”, are “focused on restoring the Nixon Presidency”, and have “persuaded themselves that, following Nixon, things went wrong”. Come on, give us break here: are we really expected to give credence to Mayer, and think bad things about Addington, just because political opponents raise the Nixon specter. The questions broached by Mayer’s article are (i) what are Addington’s constitutional views, and (ii) what was his role with respect to Administration actions. As exhaustively shown herein, Mayer hasn’t provided any reliable evidence that would permit us to answer either question, and her effort to distract from that lack of evidence by talking about Nixon adds nothing other than confirmation of the weakness of her specious attack on Addington.

Mayer would also tar Addington by emphasizing that he worked at the CIA when William Casey was director. She asserts that Casey “lied” to Congress, regarded “congressional restraints on the agency as impediments to be circumvented”, and expressed “[h]is sentiment about congressional overseers” by “respond[ing] to tough questions [from congressmen] by muttering ‘assholes’” (I think she’s saying you shouldn’t call congressmen “assholes”, but its okay for one of her sources to say that Gonzales “doesn’t know shit”). Mayer makes no showing that Addington was in any way connected with Casey’s alleged long-ago misconduct, and it is a mark of Mayer’s slippery practices for her to suggest otherwise. Indeed, the only information about Addington’s CIA work makes clear, conclusory as it is, that Addington – even though agreeing with the apparent consensus of agency employees that “Congress did great harm by flinging open doors to operational secrets” – carefully sought to keep agency action in compliance with congressional mandates; thus, one Hitz, another C.I.A. lawyer, points out that Addington’s job “was trying to figure out how to comply with government oversight without getting hog-tied”.

8. Mayer quotes Fein as saying that “Addington is . . . a less than satisfactory student of American history”, and that “Cheney and Addington are not students of history. If they were, they’d know that the Founding Fathers would be shocked by what they’ve done”. However, we know that Fein is a hysterical dope worried about being killed in Lafayette Park, and that no credence can be given to his frenzied assertions, including his absurd rant that the “Founding Fathers would be shocked”. Indeed, such an assertion demonstrates that it is Fein, not Addington, who is ignorant of history, for he apparently does not know that there were long, acrimonious and unresolved disputes among “the Founding Fathers” themselves, even after adoption of the Constitution, over the proper extent, limitations and division of presidential, congressional and judicial powers. Moreover, Fein apparently does not know that presidential signing statements have been used and judicially sanctioned for almost 200 years, or that military commissions go back over 200 years and have been judicially and statutorily sanctioned. And Fein obviously doesn’t know that, as Mayer herself reluctantly concedes,

"protests from Democrats about the Administration’s legal arguments and . . . declarations of high principle from Republicans [often] are mere partisan gestures. Both sides have changed their views about the need for a strong President, depending on whether they were in power . . . “Someone said that this Administration is monarchical [compare Fein’s reference to Bush as Louis XIV],” Wilentz added. “That’s just rhetoric. We’re not a dictatorship . . .”

In light of such pervasive historical ignorance by Fein, can we give any credence to his claim that Addington isn’t a “student of American history”? Of course not.

9. It is unnecessary to further lengthen this opus to deal with other assertions of Mayer and her alleged sources. I have shown you how properly to analyze their major contentions discussed above, and if you apply that analysis to their other assertions you will find that those assertions are likewise nothing more than unreliable, speculative and conclusory characterizations and opinions, often by unnamed sources, always without any showing of what Addington actually said or did, with no indication that the sources have any knowledge or expertise that qualifies them to criticize Addington, and with all the sources having a high probability of political or other bias against Addington. Accordingly, those other assertions are also not dependable or probative evidence of Addington’s actual constitutional views or his actual role in Administration actions, and are worthless.

10. I have made much of the worthlessness of Mayer’s and her sources’ unsupported conclusory assertions, and the fact that they do not provide reliable or adequate support for her premises. In doing so, I don’t mean to say that a journalist should never assert her own or her sources’ conclusions. What I do say is that a fair and honest journalist who wants to be taken seriously should, as a first imperative, provide sufficient relevant and reliable factual data (here, data showing what Addington actually said, wrote or did that would tell us his constitutional views and his role in Administration actions), and then, as a logical next step, assert herself or through her sources the conclusions she would draw on the basis of such data. In that way, the serious and truthful journalist enables the reader to understand how she arrived at her conclusions, and to make an informed judgment as to whether her conclusions are justified by the data.

As I have detailed, Mayer has not adopted such a process. Instead, she skips the facts and tells us only the conclusions – that is, her and her sources’ conclusory characterizations and opinions about Addington’s constitutional views and his role in Administration actions, without any factual data to support those characterizations and opinions. This may be fine for Mayer’s lefty comrades who love to hear anything bad about the Administration, but for a rational reader – particularly one who knows a little bit about the pertinent background, and is aware of her deceitful omissions – it marks her as simply the biased, light-weight writer of a political screed.

* * *

In an in-house NEW YORKER interview, Mayer sanctimoniously asserted that she wrote her Addington article because “it seemed important to me to hold the creator of these [Administration] policies accountable, so that the public could understand better who is behind them and how he thinks”. Given that self-righteous attitude, and that she was willfully deceptive in omitting from her article extensive materials that would contradict her story-line, my guess is that she will continue to maintain that Addington is a bad guy even though she can’t come up with actual evidence to show it. Such a position reminds me of the Rather-Mapes defense that Bush is a bad guy, so it doesn’t make any difference that we used forged documents against him.

No matter. You can now decide for yourself what you think of Mayer and her article (and, incidentally, of her enabler THE NEW YORKER). I think the criticisms I stated in the beginning have been shown to be valid, and that the article should be dismissed.

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