The Death of Dawn Johnsen's Nomination
After waiting 14 months for a confirmation vote that never came, Dawn Johnsen withdrew [Friday] as President Obama's nominee to head the Office of Legal Counsel. As I documented at length
when the nomination was first announced in January, 2009, Johnsen was
an absolutely superb pick to head an office that plays as vital a role
as any in determining the President's record on civil liberties and
adherence to the rule of law. With 59 and then 60 Democratic votes in
the Senate all year long (which included the support of GOP Sen.
Richard Lugar, though the opposition of Dem. Sen. Ben Nelson and
shifting positions from Arlen Specter), it's difficult to understand
why the White House -- if it really wanted to -- could not have had
Johnsen confirmed (or why she at least wasn't included in the spate of recently announced recess appointments).
don't know the real story behind what happened here -- I had an email
exchange with Johnsen this afternoon but she was only willing to
provide me her official, pro forma, wholly uninformative
statement -- but here's what I do know: virtually everything that Dawn
Johnsen said about executive power, secrecy, the rule of law and
accountability for past crimes made her an excellent fit for what
Candidate Obama said he would do, but an awful fit for what President
Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article
-- entitled "Restoring Our Nation's Honor" -- in which she outlines
what the next President must do in the wake of Bush lawlessness:
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. . . .
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.
Johnsen insists must not be done reads like a manual of what
Barack Obama ended up doing and continues to do -- from supporting
retroactive immunity to terminate FISA litigations to endless
assertions of "state secrecy" in order to block courts from
adjudicating Bush crimes to suppressing torture photos on the ground
that "opennees will empower terrorists" to the overarching Obama
dictate that we "simply move on." Could she have described any more
perfectly what Obama would end up doing when she wrote, in March, 2008,
what the next President "must not do"?
I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that "we must regain our ability to feel outrage
whenever our government acts lawlessly and devises bogus constitutional
arguments for outlandishly expansive presidential power" would stand by
quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power.
I don't know why her nomination was left to die, but I do know that her
beliefs are quite antithetical to what this administration is doing.
UPDATE: ABC News' Jake Tapper quotes
an anonymous "Senate Democratic leadership source" regarding a Senate
vote to confirm Johnsen: "Bottom line is that it was going to be
close. If they wanted to, the White House could have pushed for a
vote. But they didn't want to 'cause they didn't have the stomach for the debate." Take that anonymous quote for what it's worth, but what is clear is that they were very close to having the votes last year if they did not in fact have them
(when the Senate had 60 Democrats plus Lugar's support) and, in any
event, could have included her among last month's recess appointments.
Had there been real desire to secure her confirmation, it seems likely
it would have happened; at the very least, a far greater effort would
have been made.
UPDATE II: Dave Weigel, now of The Washington Post, becomes the latest to observe the core similarity
between the Obama and Bush/Cheney approaches to civil liberties,
Terrorism and national security. If you were Barack Obama and were
pursuing the policies that he ended up pursuing, would you want Dawn
Johnsen in charge of the office which determines the scope of your
legal authority as President?