When the history of the Bush Administration is written, few individuals will be held as responsible for its excesses as David Addington.  He is the G. Gordon Liddy of attorneys, a one man dirty tricks squad — except in his case, he wasn’t working outside the law, he was rewriting the law.

In an excerpt from Angler that ran in yesterday’s Washington Post, author Barton Gellman describes what happened when the Justice Department ruled that the warrantless surveillance program was illegal.  Cheney determined that the program should nonetheless be reauthorized and ordered Addington to get it done.

Addington opened the code-word-classified file on his computer. He had a presidential directive to rewrite.

It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general’s signature line. That is not correct. For reasons both symbolic and practical, the vice president’s lawyer could not tolerate an empty spot where a mutinous subordinate should have signed. Addington typed a substitute signature line: “Alberto R. Gonzales.”

What Addington wrote for Bush that day was more transcendent than that. He drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief. Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited.

The specter of future prosecutions hung over the program, now that Justice had ruled it illegal.  “Pardon was in the air,” said one of the lawyers involved.

It was possible to construct a case, he said, in which those who planned and carried out the program were engaged in a criminal conspiracy. That would be tendentious, this lawyer believed, but with a change of government it could not be ruled out.  “I’m sure when we leave office we’re all going to be hauled up before congressional committees and grand juries,” Addington told one colleague in disgust.

Addington may only be a minion, but particularly effective henchmen often can be as dangerous and destructive as their dark lords.  Cheney made the decisions that led to torture, rendition, indefinite detention, and other such abominations, but Addington gave Cheney the legal cover to justify his actions as within the law.

As Jane Mayer notes in The Dark Side, Addington’s interpretation of the law was, in essence, that there was no law, only executive authority:

The Bush legal team, as former New York Times columnist Anthony Lewis observed, spent an extraordinary amount of effort figuring out how to steer top administration officials around criminal conduct.  Their “memos,” Lewis wrote, “read like the advice of a mob lawyer to a Mafia don on how to skirt the law and stay out of prison.  Avoiding prosecution is literally a theory of the memoranda.”  Behind these contortions was the reality that the White House lawyers, like crminial litigators, were using their skills to provide rationales for a path their clients had already taken.

Let’s not mince words here.  What Addington, John Yoo, and other Administration lawyers did was nothing less than criminal behavior.  If a private organization were to act in this way, federal authorities would not hesitate to prosecute it under the Racketeering in Corrupt Organizations Act (RICO):

Under RICO, a person who is a member of an enterprise that has committed any two of 35 crimes—27 federal crimes and 8 state crimes—within a 10-year period can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and/or sentenced to 20 years in prison per racketeering count. . . . Under the law, racketeering activity means:

• Any violation of state statutes against gambling, murder, kidnapping, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in the Controlled Substances Act);
• Any act of bribery, counterfeiting, theft, embezzlement, fraud, dealing in obscene matter, obstruction of justice, slavery, racketeering, gambling, money laundering, commission of murder-for-hire, and several other offenses covered under the Federal criminal code (Title 18);
• Embezzlement of union funds;
• Bankruptcy or securities fraud;
• Drug trafficking;
• Money laundering and related offenses;
• Bringing in, aiding or assisting aliens in illegally entering the country (if the action was for financial gain);
• Acts of terrorism.

Pattern of racketeering activity requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.

I’m not a lawyer, but I would argue that Cheney and Addington (and others in the Administration) committed at least four such acts:  conspiracy to murder (CIA personnel may have, as a result of their use of “vigorous” interrogations promoted by Cheney and Addington, been responsible for the death of at least six detainees); kidnapping (the rendition program was essentially a federally sanctioned kidnap operation); fraud (inserting the signature of Alberto Gonzales instead of John Ashcroft); and obstruction of justice (as Gellman notes above, Addington, at Cheney’s instruction, attempted to override a Justice Department determination that the warrantless surveillance program was illegal).  That means they’re eligible.

Before you start arguing that the RICO statute cannot be used against government officials, know this:

In June 1984, the Key West Police Department in Monroe County, FL was declared a criminal Enterprise under the Federal RICO statutes after a lengthy United States Department of Justice investigation. Several high-ranking officers of the department, including Deputy Police Chief Raymond Cassamayor, were arrested on federal charges of running a protection racket for illegal cocaine smugglers.  At trial, a witness testified he routinely delivered bags of cocaine to the Deputy Chief’s office at City Hall.

To paraphrase Pogo, we have met the government and it is the mob.

Photo:  Getty Images via Daylife

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