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The Indianapolis Star

Johnsen, Constitution Both Denied Role in Obama Administration

Last month, Indiana University Maurer School of Law Professor Dawn Johnsen withdrew as the nominee to head the U.S. Justice Department's Office of Legal Counsel.

Johnsen's statement cited "lengthy delays and political opposition," and indeed several Senators openly opposed her nomination, including Senator Jeff Sessions of Alabama, the Senate Judiciary Committee's ranking Republican member.

But Johnsen may have faced less obvious barriers as well.

The Office of Legal Counsel, where Johnsen worked during the Clinton administration, has been described as the constitutional conscience of the executive branch of government. Ironically, it was also the source during the Bush administration of the so-called "torture memos," which used shoddy and disingenuous legal reasoning to approve illegal acts of torture.

Johnsen was one of the most eloquent and passionate critics of this breach of duty. "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," she wrote.

Johnsen has been equally outspoken in calling for the current president to openly disclose past torture and reject any retroactive immunity for crimes committed during the Bush administration.

As civil rights lawyer and columnist Glenn Greenwald points out, these views may have seemed fine to the President when he nominated Johnsen over a year ago, but they became increasingly at odds with an Obama administration that continues to detain prisoners indefinitely without charges, claims authority to assassinate U.S. citizens, and has gone to court to block civil claims by torture victims and the release of photographs depicting torture.

"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Obama said he would do, but an awful fit for what President Obama has done," Greenwald wrote after her nomination was withdrawn.

"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?"

Probably not, which may explain why Obama never pushed too hard for a Senate vote to approve Johnsen. A Senate Democratic leadership source told ABC News that, in this particular nomination, the Obama administration "didn't have the stomach for the debate."

Perhaps the debate they really dreaded was the one that would have occurred if Dawn Johnsen assumed the legal watchdog role in the White House. Presidential counsel Greg Craig left his position in January, reportedly forced out because he advocated that Obama stick to his promises to close Guantanamo Bay and fully disclose evidence of torture crimes.

Johnsen would have been at least as loyal to the rule of law as Craig was. Saying "no" to the president, Johnsen once wrote, "is OLC's core job description."

It seems President Obama may not want someone to tell him no, even if that person is pointing to the Constitution at the time.

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Fran Quigley

Fran Quigley is a professor at Indiana University McKinney School of Law, where he directs the Health and Human Rights Clinic. He is the author of How Human Rights Can Build Haiti (Vanderbilt University Press) and co-authored a friend of the court brief in support of the plaintiffs in Georges v. United Nations.

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