He's barely known outside Washington's corridors of power, but David Addington is the most powerful man you've never heard of. Here's why:
One week after the September 11 terrorist attacks, President George W. Bush briefly turned his gaze away from the unfolding crisis to an important but far less pressing moment in the nation's history. The president signed legislation creating a commission to celebrate the 50th anniversary of Brown v. Board of Education, the landmark Supreme Court ruling desegregating public schools. In a brief statement, Bush invited the various educational groups listed in the legislation to suggest the names of potential commissioners and also urged members of Congress to weigh in, as a "matter of comity." But in a little-noted aside, Bush said that any such suggestions would be just that--because under the appointments clause of the Constitution, it was his job, and his alone, to make those kinds of decisions.
This was what is known, in the cloistered world of constitutional lawyers and scholars, as a "signing statement." Such statements, in the years before President Bush and his aides moved into the White House, were rare. A signing statement is a legal memorandum in which the president and his lawyers take legislation sent over by Congress and put their stamp on it by saying what they believe the measure does and doesn't allow. Consumed by the 9/11 attacks, Americans for the most part didn't realize that the signing statement accompanying the announcement of the Brown v. Board commission would signal one of the most controversial hallmarks of the Bush presidency: a historic shift in the balance of power away from the legislative branch of government to the executive. The shift began soon after Bush took office and reached its apogee after 9/11, with Bush's authorization of military tribunals for terrorism suspects, secret detentions and aggressive interrogations of "unlawful enemy combatants," and warrantless electronic surveillance of terrorism suspects on U.S. soil, including American citizens.
The "invisible hand." Much of the criticism that has been directed at these measures has focused on Vice President Dick Cheney. In fact, however, it is a largely anonymous government lawyer, who now serves as Cheney's chief of staff, who has served as the ramrod driving the Bush administration's most secretive and controversial counterterrorism measures through the bureaucracy. David Addington was a key advocate of the Brown v. Board and more than 750 other signing statements the administration has issued since taking office--a record that far outstrips that of any other president.
The signing statements are just one tool that Addington and a small cadre of ultraconservative lawyers at the heart of the Bush administration are employing to prosecute the war on terrorism. Little known outside the West Wing and the inner sanctums of the CIA, the Pentagon, and the State Department, Addington is a genial colleague who also possesses an explosive temper that he does not hesitate to direct at those who oppose him. Addington, says an admiring former White House official, is "the most powerful person no one has never heard of."
Name one significant action taken by the Bush White House after 9/11, and chances are better than even that Addington had a role in it. So ubiquitous is he that one Justice Department lawyer calls Addington "Adam Smith's invisible hand" in national security matters. The White House assertion--later proved false--that Saddam Hussein tried to buy nuclear precursors from Niger to advance a banned weapons program? Addington helped vet that. The effort to discredit a former ambassador who publicly dismissed the Niger claim as baseless, by disclosing the name of his wife, a covert CIA officer? Addington was right in the middle of that, too, though he has not been accused of wrongdoing.
In national security circles, Addington is viewed as such a force of nature that one former government lawyer nicknamed him "Keyser Soze," after the ruthless crime boss in the thriller The Usual Suspects. "He seems to have his hand in everything," says a former Justice Department official, "and he has these incredible powers, energy, reserves in an obsessive, zealot's kind of way." Addington declined repeated requests to be interviewed for this story.
Addington's admirers say he is being demonized unfairly. "This is a new war, an unconventional war," says an informal Cheney adviser, Mary Matalin. "When you are making new policy to meet new challenges, you are going to get vicious opposition."
Few would have predicted that Addington, 49, would become such a lightning rod. Tall, bearded, and imposing, Addington has the look, says former White House associate counsel Bradford Berenson, of "a rumpled bureaucrat crossed with a CIA spook." The son of a career military official, Addington was born and raised in the nation's capital and was in the eighth or ninth grade when he read Catherine Drinker Bowen's Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787.
"The next battlefield." Thus began a lifelong love affair with the U.S. Constitution. Even today, Addington carries a copy in his pocket and doesn't hesitate to wield it to back up his arguments. "The joke around here," says a senior congressional staffer with a chuckle, "is that Addington looks at the Constitution and sees only Article II, the power of the presidency." Berenson, Bush's former associate counsel, says that's because Addington is so intensely security minded: "He's absolutely convinced of the threat we face. And he believes that the executive branch is the only part of the government capable of securing the public against external threats." Addington, Berenson adds, is a national security conservative with a twist. "He's not the intellectual legal conservative of the Federalist Society type," Berenson says, referring to the group of conservative lawyers esteemed by the likes of Supreme Court Justice Antonin Scalia, "for whom judicial restraint is the holy grail. He's much more of a Cold War conservative who has moved on to the next battlefield."
Addington began his government career 25 years ago, after graduating summa cum laude from the Georgetown University School of Foreign Service and with honors from the Duke University Law School. He started out as an assistant general counsel at the CIA and soon moved to Capitol Hill and served as the minority's counsel and chief counsel on the House intelligence and foreign affairs committees. There, he began his long association with Cheney, then a Wyoming congressman and member of the intelligence panel. Addington and Cheney--who served as President Gerald Ford's chief of staff--shared the same grim worldview: Watergate, Vietnam, and later, the Iran-contra scandal during President Reagan's second term had all dangerously eroded the powers of the presidency. "Addington believes that through sloppy lawyering as much as through politics," says former National Security Council deputy legal adviser Bryan Cunningham, "the executive branch has acquiesced to encroachment of its constitutional authority by Congress."
When Cheney became ranking Republican on the House select committee investigating the Iran-contra scandal, Addington helped write the strongly worded minority report that said the law barring aid to the Nicaraguan contras was unconstitutional because it improperly impinged on the president's power. The argument would become the cornerstone of the Bush administration's post-9/11 policies.
A second critical article of faith for Addington has to do with the presidential chain of command. "He believes there should be the shortest possible distance from the president to his cabinet secretaries, and he does not like staffers or coordinating bodies in that chain of command," says Cunningham, who worked closely with Addington and also was a Clinton administration lawyer.
Guide stars. Addington is a strong adherent of the so-called unitary executive theory, which is cited frequently and prominently in many of Bush's legislative signing statements. The theory holds that the president is solely in charge of the executive branch and that Congress, therefore, can't tell him how to carry out his executive functions, whom to pick for what jobs, or through whom he must report to Congress. Executive power, separation of power, a tight chain of command, and protecting the unitary executive--those became the guide stars of Addington's legal universe.
Addington spent two years in the Reagan White House in a variety of positions. When George H.W. Bush was elected president, Addington moved to the Pentagon to help with the confirmation hearings for Bush's nominee for defense secretary, former Texas Sen. John Tower. Cheney, meanwhile, had just been named the new Republican whip in the House and hired Addington as his new counsel. Addington switched jobs, but within weeks, the Senate rejected the Tower nomination, and Bush tapped Cheney to be his new nominee for defense secretary. Addington dug in, helped Cheney prepare for his confirmation hearings, and subsequently became his special assistant. Addington, says one of Cheney's closest friends and colleagues, David Gribbin, "became the most powerful staffer in the Pentagon" because he processed virtually all the position papers flowing to and from the secretary and deputy secretary. Still, Gribbin says he never viewed Addington as a gatekeeper, but many others did. "If David and I ever tangled," says one former senior Pentagon official, "it was because I may have thought a time or two that he was overzealous in his defense of the prerogatives of the secretary."
Those prerogatives, however, were sacrosanct to Addington. If a staffer submitted a draft memo for President Bush that copied Cheney and the Joint Chiefs of Staff, Addington would cross out the latter. "He would say, the president talks to the secretary, and the secretary can do what he wants," says the former Pentagon official. Oddly, Addington "abhorred" the use of Latin phrases in memos, this official says, and would slash them out with his infamous red pen.
It wasn't long before Addington became the military's top lawyer. As the Pentagon general counsel, Addington soon alienated the armed forces' judge advocate generals by authoring a memo ordering the proudly independent corps of career military attorneys to report to the general counsel of each service. "He wanted the military services to be not so independent," says a retired Navy JAG, Rear Adm. Don Guter. "It came under the rubric of civilian control of the military. It's centralization. It's control."
The JAG officers fought back and, with Congress's support, remained independent. But Addington, typically, found another way to prevail. He wrote a memo decreeing that only the general counsel of each service--not the JAGs--could issue final legal opinions. After George W. Bush was elected president in 2000 (Addington sat out the Clinton years, in private practice), Guter warned his colleagues: "I said, 'Stand by, these same people are coming back. And you remember what they tried to do last time.'" After the 9/11 attacks, the JAG officers were marginalized from the decision making on military tribunals and detainee treatment policies. They became among President Bush's most vocal critics within the military.
By then, the odds were tilted overwhelmingly in Addington's favor. In January 2001, he became Cheney's legal counsel and, according to former Solicitor General Theodore Olson, the vice president's "eyes, ears, and voice." Cheney implicitly trusts Addington on judgment calls because they are, in the words of adviser Matalin, "the same kind of person--Addington was always the first among equals when the vice president sought advice. And he has always been the final voice and analysis on what we were discussing." Cheney and his aide are so close, says Nancy Dorn, an Addington colleague from the Reagan, George H.W. Bush, and George W. Bush years, that they "hardly even have to communicate with words."
Addington, his colleagues say, is modest, courtly, and family oriented. He commutes to the White House by Metro when he could easily command a government car, usually eats at the staff table at the White House mess, and spends weekends cheering at his daughters' soccer games. "There are a lot of transactional people in Washington," says Matalin. "He's not one of them. He's a good soul."
According to critics, the reason Addington is such an effective bureaucratic infighter is that he's an intellectual bully. "David can be less than civilized," one official says. "He can be extremely unpleasant." Others say it's because Addington is a superb lawyer and a skilled debater who arms himself with a mind-numbing command of the facts and the law. Still others attribute Addington's power to the outsize influence of Cheney. "Addington does a very good job," says a former justice official who has observed him, "of harnessing the power of the vice president."
But it's a subtle kind of harnessing. Addington, according to current and former colleagues, rarely if ever invokes Cheney's name. An administration official says that it's sometimes unclear whether Addington is even consulting the vice president. But Cheney is always the elephant in the room. "People perceive that this is the real power center," says attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, "and if you cross them, they will destroy you."
"Grab bag." If he can dish out the lumps inside the bureaucracy, Addington has also taken a share of his own--in court. Many of the post-9/11 policies--of which Addington was the central architect--have been questioned by federal judges and repudiated by even some of the administration's advocates, including indefinite detention of terrorism suspects without access to legal recourse, creation of military commissions, and aggressive interrogation tactics. "They've inflicted wounds unnecessarily," says a former Justice Department lawyer. "They treated the post-9/11 situation as a grab bag and gave the administration a bad name."
Win or lose, those who know him say Addington simply outworks his adversaries. Even when lightning caused a fire that nearly destroyed his home, Addington missed just a day of work. His office piled high with paperwork, eschewing a secretary, Addington is impossible to reach by phone, but he E-mails colleagues at all hours of the day and night about urgent government business and, sometimes, his own arcane intellectual pursuits, like British high court decisions and Australian Supreme Court rulings. "It's clear," says a former White House official, "that he has a wellspring of information to back up that wellspring of opinion." Addington's capacity to absorb complex information is legendary. "My joke about David Addington is this is a guy who can throw the U.S. budget in the air," says Gribbin, "and before it hits the ground, mark it with up with his red pen."
A voracious consumer of information, Addington keeps tabs on judicial selections, U.S. attorney nominations, and political polls. He is, says his former colleague Nancy Dorn, "granular" and "microscopic," adding: "There was no issue too small, his eyes would catch it. It used to drive me crazy. But that's what you need."
Addington's position in Cheney's office--at "the sausage end of the sausage-making machine," as one former Justice official describes it--allows him to wield enormous influence because he is typically the second-to-last lawyer to vet documents be-fore they land on the president's desk. "David was exceptionally good," says Cunningham, the former deputy legal adviser to the National Security Council, "at keeping his powder dry until the last minute." Addington's bottom line, those who know him say, is ensuring that even if the administration loses on a policy issue, the principle of executive power is protected. "He was very disciplined about knowing and articulating the difference," says Cunningham, "between constitutional legal issues and policy issues."
That became evident when Addington began his first big legal battle, in early 2001, after Cheney refused to release documents relating to a controversial energy task force that he headed. Two private watchdog groups and Congress sued to find out whether energy industry lobbyists improperly sat on the task force and influenced administration policy. In a series of letters to David Walker, the comptroller general of the Government Accountability Office, the investigative arm of Congress, Addington argued that neither Congress nor the courts could "intrude into the heart of executive deliberations," because it would inhibit the "candor" necessary to "effective government." Addington argued strenuously that no matter what the political or policy outcomes, protecting the information sought by the task force was the right thing to do. "They gave up short-term political expediency," Berenson says, "for the larger constitutional principle." More than three years later, Addington's judgment was vindicated by the Supreme Court, which refused to order the Bush administration to release the documents.
Tough guys. The 9/11 attacks became the crucible for the administration's commitment to restoring presidential power and prerogative. In the national security arena, the expansive view is that the president, as commander in chief, has the inherent authority to exercise vast powers to secure the nation from external threats.
But even some pro-presidential lawyers in the administration argued in favor of exercising caution with that approach. "My advice was that we need to take the least aggressive position consistent with what we need to do," says a former Justice Department official. "It lets you build on it, and it doesn't make you look so extreme." That was the crux of the post-9/11 debate.
In the months after the attacks, the White House made three crucial decisions: to keep Congress out of the loop on major policy decisions like the creation of military commissions, to interpret laws as narrowly as possible, and to confine decision making to a small, trusted circle. "They've been so reluctant to seek out different views," says one former official. "It's not just Addington. It's how this administration works. It's a very narrow, tight group."
That core group consisted of Bush's counsel and now attorney general, Alberto Gonzales; his deputies, Timothy Flanigan and David Leitch; the Pentagon's influential general counsel, William Haynes; and a young attorney named John Yoo, who worked in the Justice Department's Office of Legal Counsel.
Whether or not he became the de facto leader of the group, as some administration officials say, Addington's involvement made for a formidable team. "You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power," says a former Justice Department official. "If you suggested anything less, you were considered a wimp." Others say Addington and Flanigan influenced Gonzales, who lacked their national security background.
Addington had close ties to Yoo, Haynes, and Flanigan. Yoo was Addington's protege and Hayne's squash buddy. Haynes, whose friendship with Addington dates back nearly two decades, was backed by Rumsfeld and his neoconservative deputies Stephen Cambone and Paul Wolfowitz. Addington and Flanigan had also become close, having experienced 9/11 from an extraordinary vantage point--Flanigan from the White House Situation Room, Addington by Cheney's side at the President's Emergency Operations Center in a bunker underneath the complex. In the weeks and months after the attacks, says a former White House official, the two men would often take secret trips to undisclosed locations together, including the Guantanamo naval base in Cuba, where the Pentagon began holding hundreds of detainees. One time, they even showed up together on a nuclear submarine.
Addington, clearly, was a force behind the scenes in the legal skirmishing within the administration. "There'd be lurches in policy; we wouldn't know what was going on," says Admiral Guter. "Haynes would have meetings at the White House with Gonzales and Addington, and he'd come back and give the next iteration of what we were doing, and we'd scratch our heads and say, 'Where did that come from?'"
One of Addington's most important allies in asserting presidential power was the OLC's Yoo. Traditionally, OLC staffers tend to be longtime career lawyers who ensure that the tenor of the legal opinions rendered is devoid of political overtones. After 9/11, however, OLC lawyers drafted a series of opinions that many career Justice Department attorneys viewed as having traduced the office's heritage of nuanced, almost scholarly, legal analysis. Addington, according to several Justice Department officials, helped Yoo shape some of the most controversial OLC memos.
The administration's first goal was winning passage of a congressional resolution authorizing the use of military force. The Pentagon and Joint Chiefs of Staff wanted Congress to define the conflict narrowly and authorize the use of force against al Qaeda and its confederates, as well as the Taliban. "It has a good impact on morale to have a conflict that's narrowly defined and easily winnable," says attorney Horton. But Addington and Cheney, according to Horton, "really wanted it [defined more broadly], because it provided the trigger for this radical redefinition of presidential power."
In an Addington-influenced OLC opinion issued shortly after 9/11, Yoo wrote that Congress can't "place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."
A second critically important issue was what to do with those captured on the field of battle. The State Department's ambassador at large for war crimes issues, Pierre Prosper, headed an interagency group within the administration and began exploring ideas. National Security Council legal adviser John Bellinger was a key member of the group, which discussed options ranging from military tribunals to prosecutions in federal court. The discussions were short-circuited, several former administration officials say, when Flanigan, one of Gonzales's two top aides, wrested away the group's work product on military commissions. With Berenson's and Addington's assistance, Flanigan wrote a draft order for the White House, based on an OLC memo arguing that the president had the legal authority to authorize military commissions--period.
That led Bush, on November 13, to authorize the secretary of defense to create military commissions to deal with "unlawful enemy combatants." The Pentagon's entire corps of JAG officers was kept in the dark, as were Ambassador Prosper, Bellinger, then National Security Adviser Condoleezza Rice, and then Secretary of State Colin Powell.
When Bush issued the executive order, a furious Bellinger confronted Gonzales in his office, administration sources say, to protest what he viewed as an end run. Gonzales and Bellinger would have many similar heated discussions about Addington's policy influence.
"Optics." Prosper felt the military commissions order was workable but believed the commissions' rules would make or break the order's credibility. He, Bellinger, and others believed that the administration ought to have an independent review component, perhaps even a civilian one, to allay the distrust of European governments toward all things military. "It's important that sometimes you put in a rule we may not end up using," says Prosper, "but the optics are good for public opinion." But Addington, Flanigan, Gonzales, and especially Haynes remained adamantly against the civilian review idea, current and former officials say.
On military commissions and other issues, Addington's frequent sparring partner was Bellinger, administration officials say, because Addington viewed Bellinger--who had begun to voice deep concerns about the secrecy and the lack of interagency coordination and input--as "weak kneed."
Tensions between Addington and others in the administration would flare again and again. One vexing issue, for instance, was whether to treat members of the Taliban captured in Afghanistan as prisoners of war. Addington's colleague, Yoo, called Afghanistan a "failed state" and argued that Taliban fighters therefore didn't constitute a real army but were more of a "militant terrorist-like group." A draft memorandum, dated Jan. 25, 2002, signed by Gonzales and written, sources say, by Flanigan with Addington's input, called Yoo's opinion "definitive." The war on terrorism, Gonzales extrapolated, is a "new paradigm" that "renders obsolete" the "strict limitations" the Geneva Conventions place on interrogations and "renders quaint" the protections it affords prisoners. Some government lawyers believed Bush could have announced his decision without endorsing the controversial "failed state" theory. "It's the least you need to say to get the president what he wants," says a former Justice official. "They go beyond where they need to go."
If the question of incarceration was vexing, the question of how to extract information from those incarcerated was positively inflammatory. In August 2002, the head of OLC, Jay Bybee, signed a memo interpreting the U.S. law prohibiting torture and implementing the U.N. Convention Against Torture. Addington helped shape the Bybee memo, which was authored by Yoo. Once again, the State Department--which has the lead role in monitoring implementation of the treaty--was left out of the discussions.
Bybee, Yoo, and Addington saw the torture statute, unsurprisingly, as an unwarranted infringement on executive-branch power. Their goal was to interpret it as narrowly as possible, and their memo, consequently, explored the outer limits of the interrogation methods the statute allowed. The three lawyers agreed that the president could override or ignore the statute, as needed, to protect national security. And they concluded that those who engaged in conduct that might violate the law might nevertheless have an appropriate legal defense based on "self-defense" or "necessity."
The Bybee memo caused a storm of protest in the legal community, including among many conservative lawyers inside the Justice Department. "From the beginning, no one has ever said we would violate the torture statute," says a former Justice Department official. "So why would you write a memo writing all the ways we could violate the statute? It's just dumb."
In October 2003, Bybee's replacement as the head of OLC, Jack Goldsmith, began reviewing all the "war on terror" memos the office had generated and later told the Pentagon not to use the Bybee memo. Deputy Attorney General James Comey soon ordered the memo withdrawn, and another OLC attorney, Daniel Levin, then wrote a more limited opinion that scrapped whole sections of the Bybee memo. Unlike Bybee, Levin circulated his draft memo widely and made revisions, according to Justice Department officials, after lawyers at the State Department and other agencies had commented on it.
As with the incarceration and interrogation issues, President Bush's decision, within days of the 9/11 attacks, to authorize the National Security Agency to conduct electronic surveillance inside the United States, without review by the secret Justice Department intelligence court, had David Addington's handwriting all over it. Bush, Addington and others in the small coterie of conservative administration lawyers argued, had the authority to order the secret surveillance under his constitutional authority as commander in chief and by the authority granted to him by Congress's use-of-force resolution before the invasion of Afghanistan. Goldsmith and Patrick Philbin weren't so sure. In March 2004, the two Justice Department lawyers expressed their doubts about the program to Comey, the deputy attorney general. Like Addington, Goldsmith and Philbin are extremely conservative and pro-presidential power. But according to former Justice Department attorneys who know both men, they are also careful lawyers who found Addington and Yoo's legal analysis and opinions to be sloppy and overreaching. By reviewing all the "war on terror" memos, says a former Justice Department attorney, "part of what Jack was doing was returning OLC more to its traditional role." Addington excoriated Goldsmith over what he viewed as his betrayal, administration officials say, and his response, several individuals who know him say, was entirely in keeping with his character. People in the front lines of the war on terrorism "were relying on these memos," says one former Justice Department official. "People felt like you're changing the rules on us; you're running for the hills." That, says Cheney adviser Matalin, is antithetical to Addington's makeup: "Once he's disaggregated the problem and reaggregated the solution," Matalin says, "he can stand his ground."
"Angels." In recent months, the battle over executive power has pitted Addington and Cheney against Sen. John McCain, the Arizona Republican who spearheaded an amendment banning the use of torture or cruel, inhumane, or degrading treatment of detainees. The administration wanted McCain to include presidential discretion to shield interrogators from prosecution and immunity for officials who approved acts of abuse. Cheney's office was deeply engaged in pushing the changes--and in trying to scotch the McCain legislation. "It was coming from Addington," says Horton, "time and time again."
Bush threatened to veto the McCain legislation, and Cheney personally joined the fray, urging Republican senators to exempt the CIA from the provisions. In the end, Bush's national security adviser, Stephen Hadley, met with McCain to negotiate a compromise when it became clear that McCain had rolled up veto-proof majorities in the House and Senate.
The McCain amendment requires the government to set out uniform standards for detainee interrogations in an updated field manual. The manual was last revised after the 1992 Gulf War and ceased to have legal force in 2002. A new manual has not been reissued. "Addington has been the principal reason there has been no manual," Horton says. "It's his refusal to accept Geneva Conventions on any terms. We know this for a fact."
As legal scholars continue to examine the government's 9/11 policies, David Addington's singular presence looms larger than ever. What is unclear, at this juncture anyway, is how history will regard him: as a legal path setter who devised innovative means to help a president defeat an unconventional enemy or as a dangerous advocate who, in pushing the envelope legally to help prosecute the war on terrorism, set U.S. foreign policy, and America's image in the world, back by decades. Even his toughest critics in the administration say Addington believes utterly that he is acting in good faith. "He thinks he's on the side of the angels," says a former Justice Department official. "And that's what makes it so scary."
With research assistance from the U.S. News library
This story appears in the May 29, 2006 print edition of U.S. News & World Report.