Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure.

To date, the only journalist I have seen to even come close to being accurate about Ben Nelson’s status on Johnsen’s nomination is Charlie Savage at the New York Times, who yesterday briefly noted:

And it was not clear whether Mr. Nelson would join Republicans in trying to block a vote on Ms. Johnsen with a filibuster.

And that is the only germane question. It matters not whether Ben Nelson likes Johnsen, nor even if he would vote for her on the floor; the only salient issue is whether Nelson would vote for cloture and permit a floor vote. Ben Nelson never said he would block cloture. Never. And when questioned by the Indianapolis Star, he said the WH had never even discussed the subject with him.

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

There is no evidence whatsoever Nelson would have voted against allowing the nominee of Barack Obama, the sitting President of his own party, to have an up or down vote. None. How Nelson would have voted on the up or down floor vote is irrelevant as there were far more than the 51 votes for confirmation in an up or down vote. Ben Nelson was not the problem.

Arlen Specter was not the problem either. Specter’s office directly confirmed to me that he was, and has been, willing to allow cloture on the up or down floor vote for Johnsen, and likely willing to support her in said up or down vote, ever since his second face to face meeting with Johnsen on May 12, 2009 and Specter confirmed the same to Marcy Wheeler in late February. The failure of the Johnsen nomination cannot be laid at the feet of Arlen Specter.

Oh, and one other thing should also be kept in mind, there is a very good chance that, if it ever came down to them, either or both of the Maine twins, Olympia Snowe and Susan Collins, would have permitted cloture on a floor vote too. They have a record of not blocking votes on Democratic Presidential nominees going back to the Clinton era and leading Maine women’s groups were very optimistic they would allow it on Johnsen if it came down to them (which I also separately confirmed with the groups).

So, it was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry, and the reason is almost certainly that she was not compatible with the Administration’s determination to maintain, if not expand, the Bush/Cheney positions on unbridled executive power, indefinite detention without due process as well as warrantless wiretapping and other Fourth Amendment invasions.

You want to know why the Obama White House killed their own nomination of Dawn Johnsen? Glenn Greenwald put it so well that I cannot improve on it and will just adopt and incorporate his spot on words:

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. . . .

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.

What 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.

There is your answer. In brutal black and white. And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens. If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

113 replies
  1. Leen says:

    Have you seen this article?
    Dawn Johnsen Wrote Forcefully About Confronting ‘Our Nation’s Past Transgressions’
    http://www.huffingtonpost.com/2010/04/10/dawn-johnsen-wrote-forcef_n_532964.html

    “Johnsen wrote in 2008:

    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.”
    ———————————————————————

    Sounds like Johnson really believes that “no one is above the law” horseshit that Obama, Holder, Leahy, Whitehouse and the rest keep repeating to the peasants.

    Those endlessly repeated and hollow words just do not line up with Obama etc agenda to “move forward, next chapter, turn the page, don’t be about vengeance, retribution, no witch hunts” All the ways our leaders try to spin that holding those in the Bush administration accountable for very serious crimes is all about “vengeance” instead of justice and accountability.

    President Lies about blow jobs = impeachment
    President and Co. Lie about WMD intelligence..torture = hundreds of thousands dead, injured, millions displaced

    —————————-
    I can dream. Can you imagine if she were put up for the Supreme Court spot.

    o.K. deck me bmaz

  2. Jim White says:

    Thanks, bmaz. Having the nomination actually withdrawn has been incredibly depressing for me, even though, as you had pointed out so well, it was dead certain that Obama would never allow her to be confirmed. And as you point out tonight, a major reason to be even further depressed is the likelihood that Obama will appoint a Supreme Court justice who will shift the balance far to the right for a very long time.

    I shudder to think about who the new OLC nominee will be.

      • 4jkb4ia says:

        Barron is certainly the easy solution. Finding a person who can appease the civil liberties community and has observed how low a priority it was to get a head of OLC is not going to be easy at all. For all I know McConnell wants there to be no one confirmed for that job, similarly to the NLRB.

      • emptywheel says:

        Yeah, that’s sort of what I think, too. That way they don’t have to worry about their tender stomach. Or they can just have him acting forever–as Jim has pointed out, that’s the norm for OLC.

  3. Leen says:

    Update at Greenwald’s
    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?

    • spanishinquisition says:

      Could Dawn Johnsen have arrested Obama and others in the administration for war crimes and conspiracy to commit murder?

      • bmaz says:

        Not even close to possible; OLC has nothing whatsoever to do with criminal prosecution; its sole function is to advise the executive branch.

        • spanishinquisition says:

          But anyone can make a citizen’s arrest, just virtually no one except for a WH staffer could approach the President or others in the WH in such a way to be able to affect a citizen’s arrest. I would think that short of the Attorney General, that the OLC would have strong credibility as it is there job to determine if what the President is doing is legal or not.

          • bmaz says:

            What?? You have to be kidding. Again, OLC attorneys have no charging powers, arrest powers or any other criminal division powers whatsoever. None; it will never happen.

            Furthermore, “citizen’s arrest” is pretty much complete urban legend bullshit. First off, there is no such thing or power under Federal law at all. Secondly, even under state law in jurisdictions that do permit it, it requires the commission of a felony crime in front of the citizen; i.e. in his presence. Then the most you can do is detain the perpetrator and turn him over to a certified peace officer, i.e. cop and hope they will arrest and the local prosecutor will find sufficient probable cause to charge. Taking such an idiotic action upon yourself with respect to an elected official would be illegal as any crime undoubtedly did not directly occur in your presence and you would be sued for every dime you own and probably charged with one or more crimes. This is beyond silly.

    • Leen says:

      depressing. Was she the American public’s and the world’s only chance to witness any accountability for the Bush administrations serious abuse of power and crimes?

        • Leen says:

          good one. But have to say Bush/cheney/Wolfowitz and teams crime far outweigh the Obama administrations.

          • mattcarmody says:

            Actually they don’t.
            Obama has done nothing to mitigate the actions of the Bush junta. Instead he has sanctioned the killing of American citizens at the stroke of the executive’s pen.
            His lies told in order to get elected by falsely inflating the voters’ hopes are just as heinous as those told by Bush to get us to war because he has extended the killing and continues the nonsensical notion that military commissions can replace federal court as the venue for seeking justice.
            We’re about seven years from an overtly fascist state here.

            • Stephen says:

              My feelings exactly. There is still to much apologizing for Obama. We past the eleventh dimensional chess era long ago. Barry is an enemy of The People.

  4. Teddy Partridge says:

    Nominating Dawn Johnsen and letting her nomination dangle for more than a year also silenced her completely while the Obama Administration worsened Bush’s torture, detention, and wiretapping policies. If there was ever a voice civil libertarians needed on our side as the horrors of Bush & Cheney were made even worse, it was Dawn Johnsen’s.

    How convenient that the entire new Obama Doctrine has been put into place without any sass from her.

    • Jeff Kaye says:

      I’ve often had the same thought.

      Let me join the chorus of thanks for bmaz’s excellent coverage of the Johnsen nomination. It’s stunning, really, when the mainstream narrative continues to hold sway after its direct discrediting by bmaz and EW. I think it’s because it is too damning of Obama, and the bulk of the media will not criticize the Obama administration drawing upon any progressive themes, much less exposes.

      Look at the fate of Scott Horton’s investigative article on the Guantanamo “suicides”/murders and the existence of Camp No — and the continuing cover-up by the Obama administration.

      Well, bmaz, you’re in good company, and sooner or later integrity will, I have to believe, win out.

  5. bystander says:

    re: Supreme Court appointments

    Pilfered from Paul Rosenberg at Open Left

    He [Stevens] considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” – nominated by Richard Nixon in 1971 – “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.” [from an interview with Jeffry Rosen -ed]

    This is the underlying reality: Every single justice since 1975-except possibly one-has been more conservative than the justice they replaced. This is the not-so-new “normal.” This continual right-ward march is, thereby, the “centrist”, “consensus”, expected way that things are done. Even the mere appearance that it’s not being followed–as with Sonia Sotomayor–is enough to cause such an uproar that it makes your average food fight look downright civilized by comparison.

    • 4jkb4ia says:

      But compared to the health care bill, the yelling and screaming over Sotomayor was very mild and very lame. It was simply what the anti-abortion types expected. Kagan would produce more of the same sort.

  6. rkilowatt says:

    Madness! Madness! Madness!
    It is overtly endemic in those who absolutely must obey their hardwired command to maintain their money/power/royal status; less so in those wannabees who yet lust to reach it.

    It is as if avarice is already built-in…latent by design and needs only to be awakened…TV images, etc are a likely stimulus.

    • speakingupnow says:

      The ACLU SUPPORTED the Supreme Courts decision in the Citizens United case. They won’t be receiving any donations from me anytime soon after that decision.

      • bmaz says:

        If the underlying assumption is that corporations are “persons” for purposes of Constitutional application, and that has been the operative assumption in American law for a long time, then – as much as I hate the practical effects it will engender – the Court’s decision (and thus the ACLU’s position) is quite arguably correct. Each person must make their own decision on where to donate their hard earned money, but I wouldn’t hold that amicus briefing by the ACLU against them; they do an awful lot of good. And, again, there is a good case to be made it was the Constitutionally proper argument, whether we like it or not.

        • b2020 says:

          I agree. I do think Greenwald overstated the case in justfying the court’s decision, and I do not agree that the foundation of “corporation as person” is as sound as bmaz thinks (with any modicum of legal competence on bmaz’ side), but I believe the ACLU had sound reasons for its filing. The legal concept I see at the heart of the matter is not whether corporations qualify as persons (not, mind you, citizens) under the constitution or the law based on it, the heart of the matter is whether the expenditure of money by public owned corporations is a violation of fiduciary duty, as the only conceiveable purposes are either waste or bribery. If the money does not buy influence, it is waste, if the money succeeds in buying influence, it is corruption. One possible venue to limit or end political expenditures by corporations is to require shareholder approval on every single transaction related to corporate speech that does not concern products and services.

          Of course, clarifying the concept of “personhood” under the constitution would to a whole lot of good, too – it seems that there is a lot of confusion about constitutional rights granted to non-citizens. It is certainly possible to address the concerns the ACLU and Greenwald voiced by defining a new category of protected speech that does not rest on “corporate personhood”, that is focused on the purpose and role of corporations, and that has the same legal expiration date as the concept of incorporation, which, I believe, is defined by the constitution either. But the courts are not the place for legislation, and the root cause is the entrenched culture of corruption in Congress, not the reasoning of the Roberts’ Supreme Court (the corruption of which, in this case, was aided and abetted by principles).

          The ACLU stands for its principles when it is hard, not when it is easy to do. If you claim to endorse the principles but oppose their application, then take a good hard look at Obama: he is both the embodiment and the sum of this stance.

          • bmaz says:

            I did NOT say it was sound, I said it had long been the operative assumption in American law, which is completely accurate; something you might want to consider before impugning my competence. For what it is worth, I agree that the issue of “corporate personhood” should be addressed, although I do not believe you can carve out new “categories of protected speech” without doing it.

  7. JasonLeopold says:

    Great follow up post to your story yesterday bmaz. I’m especially happy you chose that headline. Google news picks up the posts from this blog (as well as the others at FDL) and I think it’s great that damning headline is now indexed with the other stories on her. Hopefully, it will lead to more people coming over here to get the truth.

  8. elgallorojo says:

    I look forward to Ms. Johnson’s honest published analysis of Obama’s actions since 2008. I think she owes this eye-opener to our country.

    • EarthquakeWeather says:

      Agreed. This may be the best thing for her and for civil liberties. She may be able to do more on the outside, unrestrained, than on the inside where her wings would be clipped so to speak. But if this analysis is correct, why then would PBO nominate her in the first place? Has he had a dramatic turnaround in the past year? Is there something in the water at 1600 Penn Ave that turned him into Bush?

      • dakine01 says:

        It’s called a bait and switch. Nominate Johnsen and get all the good publicity for having done so but fight for the nomination in the same way he “fought for” the public option. Which is not at all.

        • EarthquakeWeather says:

          But the people who would cheer the nomination are the ones paying attention as he lets her dangle in the wind. Thus he pisses off the people more than if he had nominated someone more amenable to torture, etc.

  9. earlofhuntingdon says:

    And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens. If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.

    That’s it in a nutshell. Obama is not “liberal” or even centrist, traditionally defined. He’s a centrist in the mold of Joe Lieberman, a centrist as the GOP defines it, which is a Republican in all but name.

    Mr. Obama did not want Ms. Johnsen. He wants the power she would have denied him by refusing to issue the legal opinions necessary to institutionalize the legal basis for such power. Doing the latter is how Mr. Obama will use his vaunted knowledge of the Constitution, in order to tear a few pages out of it.

    Moreover, this is not about right or left as traditionally defined. It’s about insiders vs. the rest of America that elects and pays for their public offices. It’s about institutionalizing not just enormously expanded presidential power. It is that. It is about institutionalizing corporate power’s influence over the levers of government. Ms. Johnsen would likely have denied Mr. Obama the legal fulcra necessary to use them. Voters and progressives can do that to, if they wake up, pay attention, and demand progressive action as well as words.

    And let’s face it. For most people, who heads the OLC or even the DoJ is mostly inside baseball stuff. Who replaces Justice Stevens – and quite possibly one or two of his liberal peers – is headline news. That’s what makes it vitally important to separate Mr. Obama from the “progressive” and “centrist” labels that he has carefully pasted over his actions.

    Many of the top progressive leaders have enjoyed being inside Rahm’s veal pen. It’s clean and comfortable, a well-lighted place. They are well fed, too, making it easier to convince the members of their organizations that they are more effective for being inside. Perhaps Rahm hasn’t yet told those young calves why it’s called the veal pen or where those luscious veal stakes come from.

  10. MikeD says:

    If Johnsen didn’t have the pull in the WH to get herself confirmed when the votes were there, is there any reason to believe she would have had much effect on policy beyond penning opinions that were disapproving (though I’m guessing not outright rejecting the legality) of the actions that have been taken?

    • bmaz says:

      Good people in key positions like heading OLC is better, doing their best, is better than the alternative. There was a great deal of importance to Johnsen; some of it was pragmatic and tangible, some of it was symbolic. But you have to start somewhere with at least trying to adhere to the rule of law and principles the country is supposed to stand for; Johnsen would have been important as both that start and the symbol.

    • earlofhuntingdon says:

      I think that’s backward. It’s the administration that puts its most desired candidates in top positions in order to achieve its objectives. Dick Cheney spent a lifetime learning how to do that, both under the table (by establishing a wide informal network beholden to him) and above board (by becoming the de facto head of Bush’s personnel and transition teams).

      It’s not Johnsen who had to have the independence and pull, though she needed that. It was Obama who needed her to do the job he wanted doing. Contrast that with the pull David Addington possessed. As the chief lawyer for a constitutional nullity, the vice president, he was the most powerful lawyer in Washington. Why? Because he did what the CEO most wanted done.

      No, the fault lies neither with Dawn Johnsen’s stars nor herself. It lies with Barack Obama. Expect an interesting new OLC nominee to glide into the slipstream of the Stevens replacement bruhaha. Who that is will better inform the public about what the picture of Mr. Obama in the attic really looks like.

    • Mary says:

      There was this guy called Bradbury who couldn’t even get past a cloture call – he seems to have made a little “impact” (at least, you might think so if you were a victim of the torture his memos solicited) from taht post, even without all that WH “pull”
      ****************

      Great post and header bmaz. It’s something we’ve been calling forever, but sometimes it really helps to lay it all out. I think by the end of Jan, 2002, at a minimum, it was clear Obama wouldn’t put Johnsen in.

      By then, he’d already killed a few children in Pakistan by his authorized drone strikes into Pakistan. By then, he’d tapped Hillary Clinton for Sec of State – so that anything involving a rendition/illegal surveillance investigation that would inevitably also touch on Bill Clinton would have to be put off limits to keep from undermining her in her role as our representative for torture treaties and the Gen Conv etc. on the international stage.

      Everything after the first couple of weeks of Obama’s term has just morphed the handwriting on the wall into indelible chalk on the chalkboard, writing it over and over and over and over.

      And over.

      • earlofhuntingdon says:

        Using a chalkboard is easier than climbing that ladder laid against the side of the barn and climbing it at night in order to paint over the old rules that no longer apply. I guess some politicians continue to be more equal than their voters.

  11. tjbs says:

    Obama was chosen for us, that’s stupidity to believe he just appeared acted presidential and was the only choice.He was vetted and approved by the moneyed permanent republican majority and Mc Cain was a fall guy.

    Obama is a bloodthirsty two face bastard who speaks with the famous forked tongue. There is no hope in this dope.

  12. BoxTurtle says:

    By the time the ObamaLLP presidency is over, the only positive thing we’ll be able to say about him is that he was still the better choice over McBush.

    Boxturtle (He’s got two years left to make me eat that)

  13. emptywheel says:

    The thing that pisses me off about this is that no one is seeing this as an Obama failure. Yeah, we know he got what he wanted. But still, remember how Clinton got beat up for the way he treated Lani Guinier? That was a matter of MONTHS!!!! Yet after Johnsen is left hanging for an entire year, no one lays any blame for this at Obama’s feet?

    • Mary says:

      Sure they do, EW. It’s just that his feet happen to be situated a few inches over a large body of water, so everything they lay there sinks pretty quickly.

      Do I need the /s? Nah.

  14. 1boringoldman says:

    By then, he’d tapped Hillary Clinton for Sec of State – so that anything involving a rendition/illegal surveillance investigation that would inevitably also touch on Bill Clinton would have to be put off limits to keep from undermining her in her role as our representative for torture treaties and the Gen Conv etc. on the international stage.

    in response to Mary @ 30

    That’s a very interesting thought. Is there evidence?

    • Jeff Kaye says:

      I assume Mary’s statement is inference, and a plausible one at that.

      I wonder whether any OLC head would ever consider revisiting the national security directives that derived from the 1947 National Security Act, and in particular, NSC 10/2, which established the Office of Special Projects:

      As used in this directive, “covert operations” are understood to be all activities (except as noted herein) which are conducted or sponsored by this Government against hostile foreign states or groups or in support of friendly foreign states or groups but which are so planned and executed that any US Government responsibility for them is not evident to unauthorized persons and that if uncovered the US Government can plausibly disclaim any responsibility for them. Specifically, such operations shall include any covert activities related to: propaganda, economic warfare; preventive direct action, including sabotage, anti-sabotage, demolition and evacuation measures; subversion against hostile states, including assistance to underground resistance movements, guerrillas and refugee liberation groups, and support of indigenous anti-communist elements in threatened countries of the free world.

      Or what about Public law 81-110, which among other things, authorized the CIA to use confidential fiscal and administrative procedures, and exempting it from most of the usual limitations on the use of Federal funds? It also exempted the CIA from having to disclose its “organization, functions, officials, titles, salaries, or numbers of personnel employed.” Such exemption is unconstitutional. When the House of Representatives’ Pike Committee got a peek into these activities and tried to blow the whistle, its report was suppressed, and remains suppressed to this day.

      A section of the government, responding to the pressures of the Cold War, raised itself into extra-Constitutional status, and proceeded to penetrate most of the institutions with significant power in this country, most importantly the Department of Defense, and later important sectors of civil society. DoD was not without its own willingness, in part, to acquiesce in this. In Special Forces, established in 1952, the CIA found an important ideological and operational ally, and their activities were often complementary and merged, long before the Bush II era.

      Going OT here, so will stop. My main point is that the oversight of legal questions regarding Executive Branch actions have long been suborned.

    • Mary says:

      The Clinton renditions to Egypt were a cause celebre in the region and were used by Zawahiri in his pre-Embassy bombings propaganda/threat as being the trigger for those attacks. I don’t have time to go look up links now, but if you google around on the Clinton renditions to Egypt you’ll probably find several stories – excerpts from some Mayer New Yorker pieces, Frontline, etc.

      Several of the wiretap stories also referred to Clinton having a similar warrantless wiretap of Americans program for Latin American calls during his war on drugs.

      If you mean support for Clinton era having some ties (albeit not nearly like the Bush ties) to both rendition to torture and warrantless surveillance program ties. If you mean support for my thought that Obama wouldn’t have named Clinton SOS unless he had no intention of following though on investigations of the torture and warrantless wiretap programs, no – no one with the Obama admin ever fessed that up to me directly. *g*

      • tjbs says:

        Who approved the Clinton renditions?

        Calling the war criminal, Eric Holder to take time from your diligent, intense investigation into the Torture / Murder/Treason ( BMAZ I know you don’t agree, YET) to answer the question. Did you support kidnapping SUSPECTS, in the Clinton administration, and moving them to another country for any reason or can he produce documentation to support your vehement opposition to this UN-AMERICAN activity.

        It’s time for Holder to recluse himself from any torture investigation unless he can document his unrelenting opposition to rendition/ torture.

        • librty says:

          It’s time for Holder to recluse himself

          Heck tjbs, Holder is guilty of ordering the killing of US Citizens in his previous positing at DoJ. He’s bought and paid for.

  15. JohnLopresti says:

    The ultimately lapsed nomination to OLC reflects on the Obama administration*s learning curve. ew about eighteen months ago wrote a concise appraisal of what the new leadersnip of the freshly minoritized Republican membership of congress portended. I think Obama*s lassitude with followthrough in the Johnsen nomination was informed by O*s senate experience, to some measure; he met and *worked with*, or in a congressional ambience obtunded by the morphing of the Republican party at a time when its demititular leadership was summarized by Cheneyist hyperbole. I think O cast a glance forward, at OLC in 2013, 2018; and contemplated what measure of adherence to the best traditions of DoJ would remain after some future Republican majority prosecuted attempted corruption of the balances of the branches of government, as well as the Republican emasculation of interagency constructs. In environmental law, I continue discovering the extent of the stasis Bushco induced through agency nullification. One of the interesting outcomes I continue to look to observe, besides how O*s administration develops its own internal chemistry, as exposed somewhat rawly in the Johnsen affair, will be the overall process Obama*s outfit employs to steer the ship of state thru the obstruction which is the Republicans* chosen and zealously protected sea of obtuseness. I thought Obama skirmished well in healthcare, though losing its key provisions. The rude criticisms of Sotomayor desiccated. There is even talk of applying TARP to remediation of some setbacks in education. So, I think Obama remains a Democrat, based on the administration*s performance so far, and looking at his historical development.

    • jdmckay0 says:

      John:

      I enjoy reading your posts, and have found you to be among most thoughtful/insightful commenters here.

      But… I don’t agree w/you at all.

      The only extent to which course(s) BO has chosen which have been “informed” by his Senate experience, AFAIC, is that Senate experience was a very short 2 years in which he didn’t do a whole hell of a lot. Some of tougher issues, he caved… several others, he wasn’t even there. So if inexperience and “junior” status is an excuse, ok.

      But BO didn’t campaign on “Hey, I’m green behind ears, but give me a few years and I’ll figure it out”. Hell, Bush was at least as “raw”, yet he hit the ground running w/all kinds of stuff (tax cuts), entirely undeterred by visions of minority resistance. Rather, Bush steamrolled ’em.

      There was no political force/influence, at least which he acknowledged, that made Obama do any of this stuff. IMO, his early choices for finance/economy/treasury more clearly suggested what he was going to do, and that was his choice alone… period. He had plenty of advisors w/creds suggesting paths other than refinancing crooks who executed this “greatest downturn since the great recession”, yet for whateve reasons, he chose to run w/the bank’sters.

      Not good, not good indeed.

      With all due respect, whatever evidence you have suggesting he’s just needs a little time to “get his feet”, I’d really like to hear it.

      I’m concerned you may be caught in the fog of “hope”.

      Regarding subject of this post: given untenable situation (well documented corrupt DOJ), how can one expect any kind desirable results when toddling with incremental adjustments embodied within the corrupt context… I mean, we’re talking state sponsored torture here, w/DOJ that lies about it. That’s like an alcoholic fixing his problem by switching to beer, or wine, or… whatever.

      Or to put it another way, it’s sameness masquerading as change.

      I worked to get BO elected, listened to his words closely, had his ear a few times here (NM) in small meetings. I know both what he said explicitly, and what he implied generally… a lot.

      I consider all these actions a broken contract… he’s not doing what he told us he would.

    • ackack says:

      Dude, We all get you have a vocabulary, but it doesn’t lend itself to the clearest expression of your points. Simply stipulate that you’re an attorney(evinced by your proclivity toward verbosity, loquaciousness, and torture of the language and syntax), and then make your point succinctly. A paragraph or a break here and there might help, also.

      No disrespect. Just saying.

      • skdadl says:

        I love John’s words. I always learn at least one new one. Today it was “obtunded.” I haven’t even looked that up yet; if it doesn’t exist, it should.

        • earlofhuntingdon says:

          “Obtunded”, lacking full mental capacity, sometimes caused by head trauma by the proverbial blunt instrument. I imagine there are a plethora of non-medical uses, many derogatory.

  16. earlofhuntingdon says:

    The course Mr. Obama sets is not simply to avoid the Scylla of Republican obstructionism. He is avoiding the Charybdis of his own campaign promises. He is not shutting his ears to the Sirens’ song; he is playing the lyre for them, hoping that it will be progressives and true centrist Democrats that land on the rocks instead.

  17. wigwam says:

    Obama wants Dawn Johnsen heading OLC like he wants a third nostril.

    Ever since her nomination, I’ve imagined Rahm Emanuel muttering: “When will that bitch take a hint and go away?” I’d like to know how Obama ever made this mistake in the first place, but I’m confident that Greg Craig had something to do with it.

    Nobody who believes in presidentially ordered extra-legal assassinations and preventive detention wants legal counseling from Dawn Johnsen (or for that matter from anyone else who respects the Constitution).

  18. aardvark says:

    Interesting speculation. But, that is all it is, speculation. Would be interesting to see some actual proof.

    • bmaz says:

      Where is that comment directed? If it is to the premise there have been sufficient votes for cloture on Johnsen’s confirmation vote, not to mention the actual floor vote itself ever since Franken was sworn in, then I would very much argue the proof has been more than firmly adduced and confirmed, and that it would be rather ostrich like to claim otherwise.

  19. jo6pac says:

    Yep, just business as usual. You wouldn’t want any honest people in govt. now would we. I can’t figure why people still like o

  20. wigwam says:

    But BO didn’t campaign on “Hey, I’m green behind ears, but give me a few years and I’ll figure it out”. Hell, Bush was at least as “raw”, yet he hit the ground running w/all kinds of stuff (tax cuts), entirely undeterred by visions of minority resistance. Rather, Bush steamrolled ‘em.

    Bush implemented the platform on which he ran. More or less, Obama has been dedicated to implementing the platform of the other side — see http://seminal.firedoglake.com/diary/40024

    • jdmckay0 says:

      Bush implemented the platform on which he ran. More or less,

      yah… except for:

      no nation building
      – privatize social security
      – politicize PBS (has everyone forgot that episode already?)
      – militarize/weaponize space (Rummy’s dream, what happened to that?)
      – 3 rounds of massive tax cuts in 1st term
      – put fundamentalist no-nothing teenie bopppers in policy/personel position all over fed gov, not to mention admin in Iraq
      – and… (drumroll), how ’bout the unitary exec thingie? Was that part of platform?
      – Oh yah, and give Jack Abramhoff executive authority througout government, then forget he ever met the guy.

      Actually, Bush’s (RNC) platform was about as meaningless as “freedom fries”.

      Just saying…

  21. wigwam says:

    Headline at HuffPo:

    Arianna Suggests Elizabeth Warren As A Candidate To Replace Justice John Paul Stevens On The Supreme Court (VIDEO)

    I love the notion but that nomination would surely, at the hand of Rahm Emmanuel, meet the same fate as did the nomination of Dawn Johnson. He hates liberals, and he runs the White House. ’nuff said!

  22. JThomason says:

    This is the irony: tyranny and arbitrary governance is not politically aligned and is as susceptible to the fig leaf of social progress as that of economic expediency. The banal manners of governance has historically countenanced much human atrocity. Arbitrary power always looks to minimize decency for the sake of political advancement. A system of constitutional checks is designed to confront this given. Many recognize that the emergence of the corporate power as the host of the constitutional agencies has proven naturally antithetical to the environment where the “people” hosted government. Still the toothpaste is not easily put back into the tube.

    The principle instrument of repression then is exercised in the hegemony of corporate economic power and the protections stemming from limited liability once thought to engender a policy economic risk taking. Now individual liberties are attacked in the narrow corporate employment policies that require the subordination of individual conscience to the corporate aim of profit taking.

    Johnsen is a voice of the “people” and the rule of law that emerged of the constitutional order, but with government officers increasingly co-opted into the the corporate ethos which thrives on exploiting tyrannical impulses, her relevance from the perspective of governance then is diminished. Realistically Johnsen’s constituency and authority is increasingly limited in the political context.

    The historical corollary to the restoration of decency and individual standing is a difficult reality to fathom though what Ghandi and King have exemplified certainly ennoble the possibilities.

    There is much more to be said in this regard including an understanding of why non-violent solutions have been politically demeaned in the rise of the corporate order. In the technological economy the human cost of industry is certainly ameliorated. The human cost of power is not so easily disposed of.

  23. masswaster says:

    Couldn’t Obama have recessed appointed Johnson when he did the others? To me this smells as if Johnson would have been a fly in the ointment of Obama’s obvious policy of defending Cheney’s policies.

    The “it’s Nelson’s fault” excuse just doesn’t fly (more of the old shift the blame game for Democratic collaboration and failure).

  24. JohnLopresti says:

    Yeah, I agree with bmaz*s post; and with some of the critiques of mine, I was pressured for time and saw the imprecision in the comment, sorry for that. I was looking at some of the increased peril for some of the institutions which an installed Johnsen would have begun to protect; and whether O*s people can muster a different bulwark as surrogate. I was glad to see JKaye review some of the old statute, some of the very considerations tempering my post before.

    I think communications, media, and transportation are shifting much of the foundations in individuality and character that contributed to the amalgam of our government system from its outset. Maybe bmaz has it right again, time for the JGiles CD; right after looking for that peculiarly missing written memo from Goldsmith [see other new diary].

  25. jbjd says:

    bmaz, this brilliant article encompasses too many of the faults and foibles endemic to the Obama Administration to list here. In sum, though, these failures point to a contempt for law and a contemporaneously complicit press.

    I can only pray that, at some point, soon, given this evidence of Mr. Obama’s malfeasance in office coupled with media acquiescence; even the most progressive of Progressives will entertain this thought. Could these same factors perhaps also explain how he reached the Oval Office in the first place? OPEN LETTER to GREG ABBOTT, ATTORNEY GENERAL of TEXAS

  26. tanbark says:

    Good thread, BMaz.

    It’s as the point for some bloggers that they dangle the asshat republicans in front of us like shiny objects, to try to hide Obama’s selling out of progressives.

    Just think what they’ll have to do if Mr. Centrist goes all bipartisany with Stevens’ replacement. The posts about the evil repubs will be enough to wallpaper the Lincoln Memorial…and not a word about Obama.

    It’s the new technique.

  27. librty says:

    Thanks BMaz

    The withdrawal considered along with the Commander in Chiefs’ Shoot To Kill Orders on Anwar al-Awlaki is rational, straightforward and understandable.

    Didn’t say I agreed with it.

  28. RU4862 says:

    Dawn Johnson was the best nominee the White House put forth to date. It sad to know this white house doesn’t believe in fighting-the-good-fight.

  29. librty says:

    doesn’t believe in fighting-the-good-fight

    They don’t want her there, it’s not about fighting a good fight. She would be a difficult opponent in that office.

  30. ADC14 says:

    Obama sucks. Period. Can we move on to finding someone to run against him and start the ball rolling?

  31. getplaning says:

    Am I the only one who see this? She withdrew because Obama wants to nominate her to the Supreme Court!

    Yeah, yeah, nagga happn. Well, one can hope.

  32. Leen says:

    Dreams and aspirations. Reading Johnsen’s words and knowing that Obama does not really believe “no one is above the law” is so depressing.

    Dawn Johnsen

    “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.”

  33. librty says:

    First off, there is no such thing or power under Federal law at all

    No disrespect meant or intended Bmaz.

    Lt. Col Bo Gritz USA ret. served citizen arrest papers on federal employees for their conduct at the Ruby Ridge incident. You may not think much of his actions, but he was not sued nor charged.

    http://www.rense.com/general63/terrc.htm

    but he successfully used the arrest-tool against federal law enforcement in August 1992 when he intervened in the siege at Ruby Ridge, Idaho and brought what was left of the Randy Weaver family down the hill without further bloodshed. Sammy, the 14 year-old Weaver boy, was killed along with his mother, Vicki, and U.S. Marshal William Degan. Randy Weaver and another man, Kevin Harris, were wounded by police gun-fire. Gritz secured the services of renowned defense lawyer Gerry Spence, and the U.S. Department of Justice paid the Weavers $3.2-million in an out-of-court settlement. Harris was awarded more than $300,000.

    Even Federal Law Enforcement personnel must follow state law when operating within a state.

    • librty says:

      U.S. Department of Justice paid the Weavers $3.2-million in an out-of-court settlement.

      And our esteemed AG was in, way over his head, on the LE/DoJ operation that caused that payout.

      Egregious Unconscionable Abuse of Executive Power is not new nor is it confined to this and the previous Administration

        • bmaz says:

          Gritz actually helped in Ruby Ridge I suppose, but it had absolutely nothing legally to do with a legitimate citizen’s arrest; irrespective of what he may claim. His asinine actions in the Terri Schiavo matter, where he actually did try to pull a ginned up bogus citizens arrest, were deplorable and he should have been charged, convicted and parked in a jail for them. I have little use for such jackass antics.

  34. masswaster says:

    Obama sucks. Period. Can we move on to finding someone to run against him and start the ball rolling?

    Personally I’d like to him run against the Palin/Bachmann “I’M WITH STUPID” ticket.

  35. pmorlan says:

    If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.

    Sadly, I agree. We’ve got to figure out a way to make Obama and his advisors more afraid of liberals than they are of conservatives or we will most certainly have a Court even further to the right than we already have.

    • librty says:

      We’ve got to figure out a way to make Obama and his advisors more afraid of liberals than they are of conservatives

      They’re not afraid of conservatives, They Are Conservative

  36. gnomedigest says:

    And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens.

    So you realize that this was Obama’s decision, but you still peddle the BS idea that it has something to do with a lack of backbone. *facepalm*

    When Obama wants something, he shows plenty of backbone and fight, just like he did at the very end of the health insurance “reform” fight once he had the industries bill and wanted it passed.

    So how about we finally drop the charade of the poor little weak president? He has shown enough backbone to order the deaths of countless civilians in Pakistan through drone strikes, ordered the increased death toll in Afghanistan with his Bush 2.0 surge, and he had the backbone to outright order the death of an american citizen with no due process.

    He has plenty of spine. If he doesnt fight for something its because he doesnt want to and not because the poor little bitty president is scared or weak.

    • bmaz says:

      Did you read the quote? It was about the coming fight, not Johnsen and, yes, to some extent i feel backbone for a fight has some relevance in the coming nomination battle.

      • gnomedigest says:

        He will nominate who he wants and fight for them. If you are suggesting that he will nominate someone he doesnt want out of fear of the gop then I think you are peddling appologist BS.

        He has plenty of backbone when he wants something.

  37. b2020 says:

    “No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry.”

    I agree. There is no question that if Obama had had any intention of bringing accountability to the DOJ, he would have used a recess appointment at the first opportunity if he had not been able to get a vote before.

    However, I also have to assume that Johnsen is smart enough to know all this.

    Worse, I take for granted that whatever her personal take on Obama’s despicable conduct with respect to her nomination, she has to be fully aware of the difference between his campaign promises and her views on relevant legal matters on the one hand, and Obama’s and Holder’s conduct since his being sworn into office.

    What took her so long? And more importantly, why withdraw with a statement carefully tailored to provide an “urgency” fig leaf to whatever appointment Obama has contrived or will now contrive to paper over a decade of bi-partisan corruption on crimes and torture?

    If she is ‘preserving her credibility’ to wait for ‘more appropriate times’ to pronounce her criticism, that is just another way of looking forward instead of looking back. The same question, even more pronounced, exists for Barron and Lederman (and in fact any opponent of Bush torture, assassination, raids, detention, wiretapping etc.) in any office within the administration.

    It is telling that, when googling “Obama Lederman”, you get asked whether you intended to google “Lieberman” instead. There are many different kinds of black holes within the fabric the US judicial system now, and some of our best and brightest seem to have cognitively detained themselves in black sites located safely within the continental US, within the city limits of D.C., or within their own minds.

    Here I see one more devastating fallout of the reign of Obama: Not only does he, by past or present claimed, promised or pretend association, serve to discredit liberal policies, his touch will also discredit an entire generation of capable minds through their willingness to work for him and to lend their reputation to his cause.

    I am glad that Johnsen has now become a bystander of sorts, and is no longer set to become a potential associate, but I do not think that she has yet severed the ties that bound her voice. This I see as the most relevant question: what will she do now? Obama made his move over a year ago, the withdrawal was merely a belated acknowledgement of it. Is that the end of the matter?

  38. El Duderino says:

    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.

    Uh, Glenn, you just answered your own question: her nomination was allowed to die because her views on executive power are incompatible with Obama’s.

    • Leen says:

      No change there we can believe in. Losing his base. Just does not believe in accountability for serious crimes “moving forward, turning the page, next chapter’

  39. mongopawn says:

    I wouldn’t be surprised if this was planned all along. After the dust settles, most people will remember Obama for having nominated such a candidate in the first place, forgetting the details. He eventually gets exactly the candidate he wants (John Yoo?), while continuing to wear the faux halo of the liberal savior.

  40. Acharn says:

    I am constantly amazed that there is so little outcry among progressives. The MSM, of course, think that Obama is “centrist,” which is somehow supposed to be good. It’s appalling that we haven’t seen any outcry, heck not even any comment, over the assassination program, much less military tribunals, or continued renditions.

    Still, as I commented to a friend last week, you’ve sure got to hand it to him, Obama is a heck of an orator; he makes absolutely great speeches.

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