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David Addington and the War on Terrorism

ALEX CHADWICK, host:

At the White House today in a press conference with the visiting Japanese Prime Minister, President Bush had this to say about the Supreme Court ruling in Hamdan vs. Rumsfeld.

President GEORGE W. BUSH: We will seriously look at the findings, obviously. And one thing I'm not going to do though is I'm not going to jeopardize the safety of the American people. People got to understand that. I understand we're in a war on terror, that these people were picked up off of a battlefield, and I will protect the people and at the same time conform with the findings of the Supreme Court.

CHADWICK: The Bush Administrations legal theories in the Hamdan case are based in large part on the views of a secretive aide to Vice President Cheney, a government lawyer named David Addington. He is the subject of a big profile piece in this week's New Yorker magazine by writer Jane Mayer. Jane Mayer, welcome to DAY TO DAY.

Ms. JANE MAYER (The New Yorker): Thank you so much. Glad to be with you.

CHADWICK: You write that immediately after the 9/11 attacks, David Addington led development of what he called the New Paradigm. What is that?

Ms. MAYER: The New Paradigm was an effort to move outside of the criminal justice system in the U.S. and outside of the uniform code of military justice, which is the legal system that our military uses, and also to reject international law. What they were trying to do was to create a new way to fight the war on terror with the executive branch, really a handful of people inside the White House, could make up their own rules about how to try terror suspects. And what they were trying to do was to get information fast, interrogate people harshly so that they could prevent future attacks, and then mete out justice that they thought would be swifter than the usual systems would provide.

CHADWICK: And in doing this, Mr. Addington was advocating a view of constitutional government in this country that placed extraordinary power in the hands of the President, directly in his hands.

Ms. MAYER: Yes, and it's so interesting, in the Hamdan case today, and the court, that is exactly what the court was taking up, which was that in the view of David Addington and Cheney, for whom Addington works, and for a handful of other people inside the White House, when the President is fighting a war and becomes Commander in Chief, they saw his powers as almost limitless, really, so long as he was - he could argue that he was protecting national security, they saw him as being able to set aside virtually all other limits, you know, in terms of other statutes and set aside international law. Basically what the court was saying today to this handful of people was, not so fast, there are limits, and the rule of law is more important than executive power. There are limits to what the executive can do.

CHADWICK: You describe a series of meetings that go on at the White House and in the government, and Mr. Addington is really taking power into his own hands to set this policy. There are critics, he ignores them and cuts them out of meetings along the way. It's quite an extraordinary process you describe.

Ms. MAYER: Yeah, I think - that's another thing that's so interesting about this case, really, today is that it's a huge setback but in particular for one faction inside the White House. It's not really just the whole Bush Administration, but in fact many of the arguments that the court made today were arguments that were made by other people in the Bush Administration earlier. The State Department, lawyers for the Justice Department, at various points there were other parts of the government that were saying to the White House, and in particular saying to Cheney's office and to David Addington, you're overstepping, you're overreaching. But really the power was so much concentrated in the hands of this small group of people, in particular in Addington's hands, that he was able to formulate a lot of these policies nonetheless, and now they've been struck down.

CHADWICK: You quote a military lawyer, Major Dan Morey(ph), who represents one of the Guantanamo inmates, been appointed to represent him. He says the administration seems to misunderstand military law and the laws of war, and from his argument, in your article, it looks as though the people held at Guantanamo, they may have to be released because they're charged with conspiracy. That's about the only thing they're charged with. And he - he makes the point that under military law there's no such thing as conspiracy. You expect people, your enemy, to conspire against you.

Ms. MAYER: Right. This was one of the issues that the court ruled on today. And what's interesting to me also was - it was an argument that was taken up inside the White House. There were lawyers who warned Vice President Cheney and his lawyer, David Addington, that you can't charge soldiers with conspiracy, because all soldiers conspire against, you know, for their side against another side. So basically it's an issue that was decided, among other places, in Nuremburg during the trials of the Nazi's after World War II, and conspiracy was a charge that under international law was set aside. It was not something that they considered to be a fair war charge, and under laws of war you can't bring it.

But the problem in Guantanamo, as Major Morey, the Marine, says in this story, is that they don't really have that much evidence against a number of other people, and that's what the court was saying about Hamdan in this case. They needed more evidence, some kind of overt act to charge someone with. Basically what the court was saying is the process has been unfair. Even with the worst criminals and the worst terrorists, you've got to have some kind of evidence against them.

CHADWICK: Jane Mayer, writing in the New Yorker magazine this week on the man who's a principal in the Bush Administration's legal theories on anti-terrorism, David Addington. Jane, thank you.

Ms. MAYER: Thank you so much. Transcript provided by NPR, Copyright NPR.