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The Office of Legal Counsel, inside the Justice Department, is probably the most consequential federal government office that remains relatively obscure. The legal opinions which it issues become, more or less automatically, the official legal position of the Executive Branch. It was from that office that John Yoo, Jay Bybee and others did so much damage, issuing now-infamous memoranda that established the regime of lawlessness that has dominated our political institutions over the last eight years. Other than Attorney General-designate Eric Holder and Obama himself, there is probably no official who will have a more significant role in determining the extent to which the Obama administration really does reverse the lawlessness and legal radicalism of the Bush years.
Today, as The Boston Globe just reported, Barack Obama announced several new appointments to key DOJ posts, including Dawn Johnsen to head the OLC. Johnsen is a Professor of Law at Indiana University, a former OLC official in the Clinton administration (as well as a former ACLU counsel), and a graduate of Yale Law School. She’s become a true expert on executive power and, specifically, the role and obligation of the OLC in restricting presidential decisions to their lawful scope.
There are several striking pieces of evidence that suggest this appointment may be Obama’s best yet, perhaps by far. Consider, first, this rather emphatic Slate article authored by Johnsen in the wake of the disclosure, last April, of the 81-page John Yoo Memo which declared that the President’s power to torture detainees is virtually limitless. Her article is notable at least as much for its tone as for its substance (emphasis added):
I want to second Dahlia’s frustration with those who don’t see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it–all demand our outrage.
Yes, we’ve seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law–and not just for the remaining nine months of this administration, but for years and administrations to come.
OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. . . .
John Yoo, the memo’s author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith’s harsh criticism–and withdrawal–of the memo. Not only that, Yoo attempts to spin the memo’s advice on presidential power as “near boilerplate” . . .
I know (many of us know) Yoo’s statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC’s integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.
Far from “near boilerplate,” recall that the last President who took the view that “when the President does it that means that it is not illegal” was forced to resign in disgrace. . . .
Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not.
As Dahlia points out, Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity–or for breaking the laws. In fact, the ones at Justice who didn’t last are the officials (like Goldsmith) who dared to say “no” to the President-which, by the way, is OLC’s core job description. . . .
The correct response to all this? Marty has several good suggestions to start. And outrage. Directed where it belongs: at President Bush, as well as his lawyers.
A couple of weeks before that, she wrote a short piece for Slate lambasting the Bush administration for violating FISA in secret (with the approval of then-OLC head Jack Goldsmith) and for manipulating the New York Times into concealing the story for a full year. There, she wrote (emphasis added):
I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration’s violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don’t know the full extent of our government’s illegal surveillance or illegal interrogations (and who knows what else)-despite Congress’s failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.
Perhaps most importantly — and most impressively — of all, this is what she wrote in Slate on March 18, regarding what the next administration must do about Bush’s serial lawbreaking:
I felt the sense of shame and responsibility for my government’s behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. . . .
The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. . . .
But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .
The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.
I first read these posts of Johnsen’s a few weeks ago when a reporter asked me about my reaction to the possibility that she might be appointed to head the OLC. Beyond these articles, I don’t know all that much about her, but anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn’t merely John Yoo but Bush himself, repeatedly demanding “outrage,” criticizing the Democratic Congress for legalizing Bush’s surveillance program, arguing that we cannot merely “move on” if we are to restore our national honor, stating the OLC’s “core job description” is to “say ‘no’ to the President,” all while emphasizing that the danger is unchecked power not just for the Bush administration but ”for years and administrations to come” — and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters — is someone whose appointment to such an important post is almost certainly a positive sign. No praise is due Obama until he actually does things that merit praise, but it’s hard not to consider this encouraging.
UPDATE: Here is an excerpt of Johnsen, in October, 2007, at a panel discussion of the American Constitution Society, discussing what she called the “corrupt” legal advice of the Bush OLC and explaining the proper role of that office, with “independence” as the centerpiece: “OLC and the Attorney General have to be prepared to tell the President ‘no’; that’s what the law requires” (h/t Jim White):
UPDATE II: A bit more good news today was Obama’s announcement of his selection for CIA Director: former Clinton White House Chief of Staff (and Congressman) Leon Panetta. I don’t have any particular thoughts, one way or the other, about Panetta himself, but — particularly in the wake of the Brennan controversy — it does seem clear that the Obama team was serious about avoiding anyone who had any connection at all to the Bush torture, surveillance and detention programs. Not only did they want to avoid anyone with any formal connection, but also anyone who (like Brennan) advocated or supported those programs, as The New York Times reported today:
Members of Mr. Obama’s transition also raised concerns about other candidates, even some Democratic lawmakers with intelligence experience. Representative Jane Harman of California, formerly the senior Democrat on the House Intelligence Committee, had hoped to get the job, but she was ruled out as a candidate in part because of her early support for some Bush administration programs like the domestic eavesdropping program.
Good. Supporting Bush’s illegal NSA program — as Harman did, repeatedly and explicitly — should be disqualifying for the position of CIA Director. Panetta may have many flaws — who doesn’t after years and years in Washington? — but Obama’s apparent determination to avoid anyone ”tainted” by the CIA’s last eight years is commendable. Like the Johnsen appointment, it doesn’t, standing alone, prove anything — only actions will do that — but it’s still a positive step.
UPDATE III: The New York Times‘ Eric Lichtblau, writing today about the Johnsen appointment, says that OLC ”has become controversial because of its legal defense of practices bordering on torture.” Most of the civilized world — which once included the United States — has long recognized those “practices” as torture, but it’s nice that the Times has cleared this up. Waterboarding and the like merely “border on torture.” Someone should alert the numerous waterboarding Japanese leaders and soliders whom we convicted of torture in post-World War II war crimes trials — among many others who were punished for similar offenses — that what they did merely “bordered on torture.”
UPDATE IV: In comments, a few people have cited the standard excuse offered by Obama loyalists in the past when it came to far worse Obama appointments: namely, that appointments don’t really matter because it’s Obama who will make the decisions. Applying that reasoning to the Johnsen appointment, these commenters contend, means there is no reason to consider it a positive sign because Obama is just free to ignore any and all advice she gives.
But that argument misapprehends the role and power of the OLC. That office does far more than merely dispense “advice” which Obama is free to disregard at will. See here for elaboration on why that is.
UPDATE V: Atrios points to an Op-Ed written by Leon Panetta earlier this year in which he aggressively criticizes the Bush administration for exploiting “fear” to justify torture, illegal eavesdropping and general presidential lawlessness. Panetta’s rhetoric is a bit restrained given the extremism he’s condemning — he’s no Dawn Johnsen — but, as Atrios says: ”not bad for the Village.”
UPDATE VI: Spencer Ackerman reports that Sen. Dianne Feinstein is upset with the selection of Panetta, petulantly complaining that she wasn’t consulted in advance and that it would be best to have an “intelligence professional” in that position. CQ‘s Tim Starks reports that Sen. Jay Rockefeller is making very similar noises about this selection. Few things could reflect better on Panetta’s selection than the fact that Feinstein and Rockefeller — two of the most Bush-enabling Senators — are unhappy with it.