Addington Speaks!

Marty Lederman

[UPDATED to address the "substance" of the Addington letter]

More than one year ago, the Director of the Archives Information Security Oversight Office wrote to David Addington asking for an explanation of why the Office of the Vice President was not complying with Executive Order 12958, which requires all executive branch "entities" to issue reports to the ISOO so that the latter can oversee such entities’ handling of classified documents.

No response from Addington.

The ISOO Director wrote to Addington again in August.

Once again, the OVP did not bother to respond.

At which point the ISOO Director wrote to DOJ on January 9th, asking the AG and OLC to resolve the legal question that Addington would not even deem worthy of addressing.

More than half-a-year later, no word from DOJ, nor even a responsive memo from the OVP, even though the legal question is exceedingly simple.

Congressman Waxman wrote to the Vice President last week, seeking an explanation.

The only response was painful obfuscation from the White House Deputy Press Secretary.

Finally, just yesterday, Senator Kerry wrote to Addington, concerned by recent reports that the Vice President refused to comply with the E.O. on the theory that he is both a legislative and an executive officer -- or perhaps that the VP is not quite in either branch!

And whadda ya know?: Within 24 hours, Addington has responded!

In his two-paragraph letter, Addington writes that the E.O. "makes clear" that the Vice President and President are to be treated alike, and "distinguishes the two of them from 'agencies.'" Since only "agencies" (defined broadly to include all "entities" within the executive branch) have a reporting obligation, Addington suggests that the President and the VP -- non-agencies -- do not.

As the Washington Post (which inexplicably does not publish or link to the actual Addington letter -- when are they going to learn?) gingerly puts the point, "Addington did not cite specific language in the executive order supporting this view, and a Cheney spokeswoman could not point to such language last night."

In any event, it does not appear to be an especially strong argument. [If you're more interested in process than in the details of the legal arguments, you can skip the next half-dozen or so paragraphs.] For one thing, although in several specific respects the E.O. does reflect an intent to treat the Vice President and the President alike, neither is mentioned in section 5.2(b)(4), which gives the Director of ISOO the authority to conduct reviews of each agency's program under the Order, and to require reports from such agencies. Nor is either officer singled out for exemption in the ISOO regulation itself that was promulgated to implement the Order.

More to the point, the question at hand is not whether the E.O. imposes obligations on the President and Vice President themsleves, but instead whether it covers the Office of the Vice President, as well as entities within the Executive Office of the President. (The Director's letter to DOJ asks about the coverage of the OVP staff, not about the VP himself.) Because those offices are "entities" within the Executive branch, they are "agencies" covered by the E.O. (see section 6.1(b)) under a plain reading of the E.O.

Perhaps Addington means to suggest that because at least one section of the E.O. (see 1.3(a) and (c)) refers both to the President and the VP and also, separately, to "agency heads," the President and VP must not be "agency heads" (lest the separate references be redundant) -- which must mean that the offices they run are not "agencies," notwithstanding that they are "entities within the Executive branch. (I'm trying here to put the best possible light on the argument.)

I don't think this would be an especially strong argument, had Addington made it, both because the OVP is an entity within the Executive branch and, more importantly, because the E.O. does specifically exempt the President and Vice President, and, separately, their staffs, from one particular (declassification) requirement (section 3.5(b)) -- something that would have been unnecessary had the President intended such staffs not to be covered in the first instance -- and in so doing specifically distinguishes those officers and staffs from "other entities within the Executive Office of the President."

Moreover, such an interpretation would be belied by the fact that until 2003, the OVP did comply with the ISOO directive, and, even more so, by the fact that entities within the Executive Office of the President, such as the National Security Council, are reported to continue to comply to this very day.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.))

Notably, Addington declines to rely on the even more preposterous argument they had previously been floating that OVP is not an executive branch "entity" under the E.O. because the VP has some legislative functions, too. That quite literally did not pass the laugh test. The Post: "That argument has drawn ridicule in recent days from Democrats and on late-night television." Actually, Addington preserves this "alternative reasoning" in the second paragraph of his letter, but contends that no one needs to deal with it just now -- not, anyway, until there is an "unavoidable dispute," by which I suppose he means until he loses on his new, principal argument described above.

[NOTE: Senator Kerry's quick reply letter to Addington is here.]

I'm less interested here in the merits of Addington's arguments, however, than by the odd way in which the arguments were presented. The relevant Executive branch agency tasked -- by the President -- with enforcement writes to the OVP twice, and is unceremoniously ignored. That agency then writes to DOJ to break the logjam, and no one even bothers to acknowledge receipt of the letter, let alone answer the question.

Then David Addington -- without obtaining DOJ's answer to the question -- personally sends a letter to a Senator, within one day, providing a legal response. Was that legal response cleared with DOJ? Does it represent the official views of the Administration? Do Addington's views trump OLC's? Render OLC as irrelevant as the ISOO? Did Addington even bother to go through the appropriate OMB inter-agency process? Or is the Vice President exempt from these ordinary Executive branch procedures, too?

As the Post's Becker/Gellman series continues to describe tomorrow with respect to Cheney's dominance of even environmental policymaking, for all practical purposes the OVP is the Bush Administration, and its views become the official views of the Administration, no matter what others in the Administration think. Call it the Unitary Shadow-Executive.

A couple of days ago, I asked the befuddling question left unanswered by Gellman and Becker: Why? After all, there are extremists and hard-liners in every Administration, and they are often at the table, and even influential. But the internal Executive branch process is designed to ensure that multiple perspectives are considered, and therefore the most extreme and most uncompromising positions rarely prevail. In this Administration, the OVP almost invariably wins. Indeed, the VP wins after cutting everyone else out of the loop altogether. And everyone else is incredulous at this radical departure from the ordinary modes of decision making. (I know from experience that this was so at OLC early in the Administration, and not only among us Clinton holdovers -- and we know from Becker/Gellman and others that it was also true at DoD, State, CIA, NSC, etc.) And yet the pattern continues apace, even to this very day, with David Addington apparently feeling free to simply ignore the ordinary methods by which an Administration typically arives at a legal interpretation.

Part of the explanation is, of course, that Addington and Cheney win because they are unrelenting. Everyone else in D.C., i.e., the other players in the Executive branch, have gotten to where they are today by learning to compromise and negotiate, to play the give and take of institutional decision making. These guys, however, don't give an inch, while everyone else is still in the reality-based community that they know and love. In most institutions, such stubborness and unwillingness to compromise would lead to marginalization. But in this one, the Vice President and Addington simply wear people out -- no one relishes the fight, and so they simply give up. Victory by attrition and intimidation. (It also helps, of course, that Rumsfeld, Cambone, Gonzales, Flannigan and Miers were complicit . . . .)

But a larger part of the explanation is simply that Cheney always wins because, for some reason, the President has decided that that is how it should be. Which only clarifies that the real question is why the President allows this to happen.

In a great series of posts, all linked here, Hilzoy concludes that the Becker/Gellman story can only be explained by a bunch of cabinet officials who are dysfunctional, allowing an "insane" process to continue unabated. She focuses on the astonishing fact that Colin Powell and Condi Rice only found out about the August 2002 Torture memo from newspaper accounts two years after the fact:

Stop and think about that for a moment. A memo making an absolutely radical, 180 degree change in US detention and interrogation policy in ways that will predictably have an enormous impact on our standing in the world is signed, and neither the Secretary of State nor the National Security Advisor finds out about it until two years later? From a newspaper article?

Similarly, Powell and Rice did not find out about the President's military commission order until after it was issued . . . as to which Hilzoy writes:

Again, a major policy decision is made, one that will have huge effects on our relations with other countries, and Powell and Rice find out about it after the fact, from CNN.

This is insane.

***

Here's a reflection that is not exactly rocket science: it's much, much better to find out what's wrong with an idea before you adopt it, not afterwards. The way you try to maximize the chance of finding out what's wrong with your ideas before you adopt them is to make sure that your policy proposals are vigorously debated beforehand. Sometimes you can do a long policy vetting process involving zillions of people and inter-agency confabs and all that; sometimes you only have time for a vigorous brainstorming session among principals; but you should never, never make decisions without serious debate if you can possibly avoid it.

* * * *

There is simply no way in which Dick Cheney could have operated as he did in an organization that was not utterly dysfunctional. None. And at least part of that dysfunction has to be put down to the astonishing passivity of his co-workers. . . .

[Rice and Powell] are the National Security Advisor and the Secretary of State. . . . [T]hey should have gone to the President the first time something like this happened and said: we refuse to work in an environment in which we have to find out about things like this from the newspapers. Trust us or we're out of here.

* * * *

These articles should be assigned to management classes as studies in what not to do. They describe the exact sort of decision-making process that reliably leads to disaster, and the kinds of personal dynamics that enable it. It's a model of complete organizational breakdown, and it should be studied for generations to come, so that it is never repeated

I agree with much of this. But as today's Post story explains, resignation doesn't ususally have much of an effect, other than to strengthen the VP's hand, and his portfolio. Christine Todd Whitman did resign, because she was unable to convince the President to reject Cheney's extreme views on environmental issues. That was the right thing to do -- but notice that it barely caused a blip in the Imperial Vice Presidency.

Hilzoy's co-blogger Publius offers an even more comprehensive indictment -- of all of us: "The reason Cheney’s Office got to dominate the executive branch is because we -- America -- elected a neophyte who lacked the experience, knowledge, and judgment to be president. . . . Our nation’s political machinery elevated a grossly inexperienced and ignorant man to the Oval Office. The entirely predictable result is that he would be forced to rely on someone else to make the decisions he wasn’t able or willing to make."

I'm not sure about this. Even if Bush didn't have the chops to make decisions himself -- and in that respect, he wouldn't be alone among Presidents -- what explains his constant deference to Cheney, and his refusal to listen to any of his other trusted advisers? Publius surmises that Bush was simply rolled by Cheney and Rumsfeld, because they were more savvy than their competitors for the President's approval. I don't know, but it's a point worth considering:

It’s pretty simple. When you elect someone who doesn’t know what he’s doing, you’re essentially electing someone else to be president. Kerry and Gore had their flaws, but they would have been the Deciders. They certainly would not have tolerated a lawless, out-of-control operation such as Cheney’s Office. At the very least, they would have, you know, been aware of the debates and had some pre-existing knowledge to inform their judgment. Bush, by contrast, was simply no match for Cheney and Rumsfeld’s decades of experience. Thus, the failure that is Cheney is not merely an individual failure on the part of Bush. Cheney is an institutional failure -- a failure of our political system. That’s the key to understand. The rise of Cheney is itself an indictment of our political institutions and culture.

Posted 10:20 PM by Marty Lederman [link]