David Addington’s Living Constitution?

Thanks very much, Eric, for the clarification .   Perhaps I misread your tone and, if so, I, too, am sorry for the disconnect.   I had understood you to be suggesting that Philippe Sands and others of us were generally motivated by our alleged “pleasure” in punishing our “ideological opponents,” rather than by sincere outrage at what has been done.   (A horse/cart confusion:   What makes them “ideological opponents” worthy of such sustained opposition in the first place is precisely that they wrote these opinions, and authorized these crimes.)

So, in the spirit of conciliation, allow me to briefly address your two principal substantive themes:  i nternational tribunals for lawyers; and characterizing the Yoo/Addington project as a failed effort at “living constitutionalism.”

International tribunals :   Unlike Philippe, I don’t find that this question advances our debate very much.   I agree with you that, if there were such trials, the lawyers should hardly be the first or only ones to be tried.   Moreover, I tend to believe (although I haven’t thought it through sufficiently) that criminal trials would be appropriate here only to the extent there was evidence that the lawyers, and others, sincerely believed they were facilitating unlawful conduct. I doubt such evidence will emerge (but who knows?).   And if such evidence did come to light, there are plenty of domestic laws that would be implicated, without need to resort to international-law tribunals.   Most importantly, this is a fairly academic question, because it’s simply hard to imagine there will be any such trials, domestic or international.   For me, the much more practical, salient question, in terms of accountability, is to ask what the bar, and the academy, ought to be doing in reaction to memos such as these.

I do think, however, that there is at least one important question to be considered with respect to the question of war-crimes trials, namely: What, exactly, were the legal theories on which we prosecuted the German Justice attorneys in the Justice Case at Nuremburg—and what would those legal theories of prosecution tell us about the obligations of our own government lawyers with respect to the relationship of domestic law to the laws of war?   (Topic for further research.)

Living constitutionalism :   I agree with you in small part—namely, that Dick Cheney and David Addington have been assiduously and indefatigably attempting, over more than 20 years, to effect a radical change in our nation’s understanding of the relative powers of the president and Congress (and the courts, and the laws of war, etc.).   And they have done so “on the ground,” as it were, by patient accretion: raising novel constitutional objections at every opportunity, whether at the Pentagon or in the White House (or even in Congress), whenever statutes or treaties impinged in the slightest on executive prerogatives.  E ventually, other executives (including Clinton) have embraced similar rhetoric, although to much less extreme ends, and almost everyone else who might have been skeptical of such theories slowly but surely wears down and gives in. (Or that was the plan, anyway. This is one of the main topics of my recent articles with David Barron, where we attempt to demonstrate that this is a stark break with a long constitutional tradition.)

But I don’t think that explains the OLC memos.   The Bush lawyers did not believe “that the political establishment would accept their expansive theories of presidential power”—if they believed it, they would have made the arguments in broad daylight and would have been much more tempered (i.e., reasonable) in the way they proffered their claims, in order to make them more palatable.   Instead, this was all done in secret, with administration officials at every turn insisting that they were playing by the letter of the law, and that torture was categorically condemned.   They were not content to leave the debate over constitutional visions to “politics”; they were trying to win by secret fiat.

OK, but what if this


been an honest, open effort to press and instantiate a radically new constitutional vision?

Would it then be legitimate?

I don’t think so.

Why not?

Well, for one thing, many of the worst arguments in the memos are simply awful, tendentious readings of statutes and treaties—i.e., of legislative intent (such as the notion that Congress did not intend to prohibit the military from pouring corrosive acid on detainees in wartime).

For another, as you now appear to agree, there is an egregious amount of what you now euphemistically refer to as “legal-craft error.”

The arguments are simply implausible, radically incomplete, and



(I am heartened that you are no longer

defending the idea

that the Yoo/Addington theories are the better readings of the text, structure and history.)

You’re right, however, that some historical examples of “legal-craft error” are the result not only of incompetence and bad faith (although those are, sure enough, the main ingredients here), but also of deliberate envelope-pushing, for the very purpose of trying to establish new constitutional norms.   To what extent is it permissible for executive branch lawyers to press such views, not in legal briefs, nor in congressional testimony, but in OLC opinions that will effectively govern the conduct of the executive branch?   Is such a strategy consistent with the president’s constitutional duty to take care that the law is faithfully executed? Faithful to what , exactly?   I hazard a partial (and inadequate) answer to these extremely important and thorny questions here . (Preview:   If it’s ever acceptable for OLC to push an unorthodox view, it is so only where it does so publicly and forthrightly.)

A final word about Kosovo: It’s ironic, I think, that you invoke Kosovo as your exemplary case in which the executive branch effected a change in the law—in your words, that Clinton’s bombing campaign established an “implicit exception [to the U.N. Charter prohibition on aggressive action] for humanitarian intervention.” Ironic because the United States

specifically rejected the doctrine of humanitarian intervention as an exception to the Charter’s rule

, and went even further to insist that the Kosovo campaign (like

Bush v. Gore

) was a one-off that would


establish any new doctrines or precedents. That’s exactly what troubles me about it: that President Clinton did not even proffer any theory under which he would have had the constitutional authority to act unilaterally, nor any legal explanation of why his actions did not breach the U.N. Charter, in violation of his Take Care obligation.