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.
