Obama Pick to Analyze Broad Powers of President. By Eric Lichtblau
TNYT, Jan 08, 2009, page A22
The legal memorandum, she wrote in a blog entry, was “shockingly flawed,” the constitutional arguments were “bogus,” the broad reading of presidential authority “outlandish,” and the “horrific acts” it encouraged against prisoners were probably illegal.
“Where is the outrage, the public outcry?!” Ms. Johnsen, a constitutional law professor at Indiana University, demanded in the posting.
Now, Ms. Johnsen will have the chance to overturn some of the legal opinions she so harshly condemned. President-elect Barack Obama said this week that he would nominate her to lead the Office of Legal Counsel, the Justice Department office that produced a series of hotly debated legal opinions on presidential power in the war on terror. She led the office on an acting basis during the Clinton administration but, in academia, has become one of the office’s fiercest critics.
Historically, the assistant attorney general for the Office of Legal Counsel, or O.L.C., has operated in obscurity, issuing dry, analytical legal opinions that often never become public.
But it has become a magnet for controversy since the Sept. 11 attacks because of its legal rationales in defense of the president’s wartime authority, and Ms. Johnsen’s nomination has generated unusually intense reactions.
Legal observers on the left have been galvanized by the prospect of a vocal critic of the Bush administration’s terrorism policies reversing eight years of legal policy. Since Ms. Johnsen was selected, some conservatives have criticized her not only for the stridence of her attacks on the Bush administration’s legal policies, but also for her past work as legal director for Naral Pro-Choice America, the abortion rights group.
The Obama transition declined to make Ms. Johnsen available for comment. Nick Shapiro, a spokesman for the transition, issued a statement on Wednesday saying,: “As someone with extensive experience working in the Office of Legal Counsel, Dawn Johnsen has tremendous respect for the traditions of the office and the career professionals who serve there, and if confirmed she will ensure that the law is faithfully interpreted and executed across the federal government.”
Noel J. Francisco, a former lawyer for the counsel’s office in the Bush administration, said the challenge for Ms. Johnsen would be to make the shift from opinionated academic to sober government lawyer.
“The danger that academics risk falling into is approaching things on too theoretical a basis,” he said. “You construct a legal theory that is either overly permissive or overly restrictive and then you apply it to specific circumstances — like a random interrogation tactic. The best heads of O.L.C. start out with a concrete legal question and try to answer that question as narrowly as possible without bringing in these broad-based legal theories.”
Bradford Berenson, who worked as a lawyer in the White House counsel’s office early in the Bush administration, said that under Ms. Johnsen, “the changes may be more marginal than the most rabid partisans might hope for.”
“Whatever her academic views, inevitably when you’re wielding government authority and you’re forced to function in the system, your views get tempered and moderated,” he said.
Mr. Berenson worked with Ms. Johnsen last year in drafting a Senate bill that would require the Justice Department to report to Congress when the counsel’s office issues an opinion finding that the executive branch is not bound by a Congressional statute. The Bush administration threatened to veto the bill, but Mr. Berenson said even if it did not make it into law, Ms. Johnsen would have the chance if confirmed to bring more openness to the office’s legal thinking.
Goodwin Liu, associate dean and law professor at the University of California-Berkeley School of Law, who worked with Ms. Johnsen on the board of the American Constitution Society, said, “She’s a first-rate scholar who will uphold the law, and that will allow her to give the office the independence it needs to restore its credibility.”
Saturday, January 10, 2009
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President Gulliver's Lawyer
ReplyDeleteA nominee who wants to tie down the executive branch.
WSJ editorial, Jan 08, 2009
http://online.wsj.com/article/SB123154838577269937.html
Barack Obama's cabinet choices are understandably getting most media attention, but everyone knows policy is also made by the sub-cabinet. So we think more public scrutiny should be drawn to Mr. Obama's choice of Dawn Johnsen to lead one of the executive branch's most important legal offices. Her appointment makes sense for a President Gulliver, but not for a Commander in Chief fighting terrorists.
Ms. Johnsen became famous in the left-wing blogosphere as an especially arch critic of the Bush Administration's war on terror. As an Indiana University law professor, she took to the Web with such lawyerly analysis as "rogue," "lawless," "outrage," and that's the mild stuff. Now she's been nominated to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch.
One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been "strangled by law," to quote Jack Goldsmith, a former Bush OLC chief.
Yet Ms. Johnsen seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes. She has written that "an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch." And in touting her qualifications, the Obama transition cited her recent law review articles "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."
In other words, Mr. Obama has nominated as his main executive branch lawyer someone who believes in diminishing the powers of the executive branch. This is akin to naming a conscientious objector as the head of the armed forces, or hiring your wife's divorce lawyer to handle your side of the settlement too.
It's also a radical reinvention of the Framers' view that the three branches of the federal government would vigorously assert their powers to achieve the proper political balance. For this reason, OLC's longstanding jurisprudence -- reaching across Administrations of both parties -- emphasizes an expansive reading of Presidential authority. For example, the office has always filed opinions opposing the 1973 War Powers Act, which sought to limit the chief executive's ability to send military forces abroad. Such opinions covered both Bill Clinton's intervention in Kosovo and George H.W. Bush's in Somalia.
Ms. Johnsen's work ignores all of this in an attempt to assail the entire scope of Bush counterterrorism policy, from surveillance to detention to interrogation. She claims that the OLC "misinterpreted relevant constitutional authorities, particularly when seeking to justify actions otherwise prohibited by law." She pays special attention to John Yoo's August 2002 OLC memorandum that set down the legal limits for interrogation, which she calls "the Torture Opinion."
Ms. Johnsen accuses Mr. Yoo of "seeking maximum flexibility -- that is, the ability to use the most extreme methods possible without risking criminal liability -- in interrogations of suspected al Qaeda operatives." She means this as a condemnation. But this in fact is the OLC's job -- to explore the legal boundaries of vague statutes and treaties to define where lawful interrogation ends and torture begins. You can debate that Mr. Yoo went too far, as Mr. Goldsmith later did when the Bush Administration withdrew the opinion. But Mr. Yoo was acting in good faith in response to the CIA's request for legal clarity, while leaving the policy choices to the war fighters.
And that's where Ms. Johnsen's premises are most dangerous. "In considering whether a proposed action is lawful," she writes, "the proper OLC inquiry is not simply whether the executive branch can get away with it," in the sense of writing opinions that can "withstand judicial review." She sees the OLC staff not as legal technicians working on behalf of the President but as a policy outfit free to quash Presidential actions with which it happens to disagree.
This is far from an academic exercise, because the OLC's advice is traditionally binding for the executive branch except in rare cases where it is overruled by the President or Attorney General. To the extent that such a mentality seeps across the executive branch, it will begin to make our spies and other war fighters risk-averse and overcautious. This is precisely what happened during the Clinton years after Deputy Attorney General Jamie Gorelick's infamous 1995 memo instructed FBI agents and federal prosecutors to go "beyond what the law requires" in limiting their collaboration against al Qaeda.
Suffocating our terror fighters with excessive legal caution can only impair the difficult task of defending a free society that believes in the rule of law from terrorists who believe in neither freedom nor law. If President Obama matures under the burden and accountability of stopping the next terror attack, he may come to regret having Dawn Johnsen around.