Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

3. OLC’s obligation to counsel compliance with the law, and the insufficiency of the advocacy model, pertain with special force in circumstances where OLC’s advice is unlikely to be subject to review by the courts.

4. OLC’s legal analyses, and its processes for reaching legal determinations, should not simply mirror those of the federal courts, but also should reflect the institutional traditions and competencies of the executive branch as well as the views of the President who currently holds office.

5. OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the President). On the very rare occasion when the executive branch—usually on the advice of OLC—declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification.

6. OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.

7. OLC should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.

8. Whenever time and circumstances permit, OLC should seek the views of all affected agencies and components of the Department of Justice before rendering final advice.

9. OLC should strive to maintain good working relationships with its client agencies, and especially the White House Counsel’s Office, to help ensure that OLC is consulted, before the fact, regarding any and all substantial executive branch action of questionable legality.

10. OLC should be clear whenever it intends its advice to fall outside of OLC’s typical role as the source of legal determinations that are binding within the executive branch.

In short, regardless of whether Jeff Sessions plans to accuse Johnsen of eating babies, she still intends to follow the law at OLC, rather than be a handmaiden of abuse of power like John Yoo was.

If you’re lucky enough to have any of the following SJC Republicans as your Senator, call him and remind them of the difference:

Arlen Specter, (202) 224-4254

Orrin Hatch, (202) 224-5251

Chuck Grassley, (202) 224-3744

John Kyl, (202) 224-4521

Jeff Sessions, (202) 224-4124

Lindsey Graham, (202) 224-5972

John Cornyn, (202) 224-2934

Tom Coburn, (202) 224-5754

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37 replies
  1. WilliamOckham says:

    Do I really have to call John Cornyn? I usually just like to pretend he’s a character on a bad TV show. Sigh…. Not that it will do much good, but I owe it to the rule of law and future generations…. Dialing….

  2. Leen says:

    Ew you are spittin nails this morning

    Hopefully Dawn Johnson will not go the way of Freeman…kicked out on her ass

  3. Leen says:

    Specter I support “vigilance when it comes to corruption” get on with it Specter we are waiting for some action.

  4. emptywheel says:

    Updated the post with this:

    Update: Predictably, Arlen “Scottish Haggis” Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

  5. nomolos says:

    Tried to call but was on hold for 5 mins at long distance so I gave up. I will try again later. Wasn’t there some noise about The Spec running as a Dem next time around?

  6. ShotoJamf says:

    “…Dawn Johnsen is a radical who eats babies and loves terrorists…”

    I’ll bet she doesn’t eat terrorist babies, though. That would sort of be counterproductive…

    • Leen says:

      the shoe thrower got sentenced to 3 years. lesson…throw a shoe at Bush=3 years in prison. Invade a country based on lies (thousands dead) = 0 time in prison

  7. Mary says:

    I get the feeling now and then that they are playing this some, and playing the people watching it. I find those guidelines still pretty weasely and they don’t do much that is specific to how OLC opinions on classified info should be addressed (I have a hard time understanding EVER not releasing legal rationale for something that is intended for reliance by the Exec, despite redactions of facts)

    I think they will set this all up as a big deal, then reluctantly and with fighting put her in, then she’s going to be a non-factor on almost everything relating to current prosecutions and on the few things she is going to be a factor the fix is in that she will make sure things work out for Obama. Then they will point to all the uproar to get her into the slot and say – see, those lefty radicals just out for Bush’s head on a platter, even the person they demanded doesn’t buy that anyone should be prosecuted for relying on or drafting the old opinions, just that there should be better process going forward, but they just can’t give it up.

  8. ThingsComeUndone says:

    Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief

    Snark? I mean this takes Hackery to a new level here.

  9. ThingsComeUndone says:

    1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

    I want her on the Supreme Court! Thurgood Marshall is the only Supreme I can recall who thought, who cared about justice the purpose of the law rather than how to twist it to do what they wanted the law to do.
    Granted I don’t follow the Supremes much but we do need someone like Dawn on the Court.

  10. jswinct says:

    Just got off the phone with Specter’s office and only waited about a minute. Clearly they had been processing calls all morning. Crisp, businesslike. Voiced my objections to the Johnsen “hold”; said if the “hold” was intended as terminal opposition, the Senator was beneath contempt.

    Also said he might consider running as a Dem, rather than continue having to be the mouthpiece for a bunch of crazy zealots/obstructionists the “core” of his party now represents.

    Do call the office! Don’t just gripe here!

  11. Socked Salmon says:

    Would it really be such a tragedy if Specter were defeated in his next campaign??? His record is to talk moderate and vote hardline conservative.

    Every frackin’ time.

    He’s Lucy with the football every time fall rolls around: the Dems fall all over themselves trying to get his vote but in the end he always supports the Republican line.

  12. maryo2 says:

    Rove will testify to Congress…”in several weeks” according to his lawyer.

    Sen. Specter wants to work with Sen. Leahy to find out the depth of politization of the DOJ wherever it may lead…but he has put a hold on Dawn Johnsons nomination.

    EW and bmaz have discussed expiring statutes of limitations. The tick tock is getting louder. Are there more expiry dates approaching that we don’t know about?

  13. JimWhite says:

    On my call, I vented for quite a while and asked if there was going to be an official statement for the reason for the hold. I told them that absent a statement, I could only conclude that Specter endorses the war crimes that the previous OLC heads enabled. They said they would put through the request for an explanation (and the rest of my comment, believe it or not!).

    • emptywheel says:

      Nicely done.

      Thanks for all of you calling SPecter.

      He’s almost certainly doing this to stave off Toomey. But if it alienates him with Dems while he’s considering a flip, it’s not going to help him either.

      • JimWhite says:

        He’s almost certainly doing this to stave off Toomey.

        Yep, nothing on the newswires or his website yet about the hold, but there are plenty of stories with him duking it out with Toomey already.

  14. ally says:

    Called Specter’s office – I asked if he was holding up President Obama’s appointees for partisan political reasons? She replied “No, he wouldn’t do that.”

    Sure he would – he has no integrity, and is mostly a disgrace to PA as a senator.

  15. radiofreewill says:

    EW – You ought to be Nominated for a Nobel Prize for nailing the structure of the Ten-Linked Pretzel Helix embedded in the Loyalist Genome…I’ll bet you turn out to be right-on!

    It doesn’t seem too different from the Novak-Hohlt-Rove Model for Exceptional Shillwork in the Journalism Arena, either.

    You may have stumbled upon the basic, repeating pattern of Bush and Cheney feeding their Agenda into an “Actioning” Process that assures them Maximum Control with Minimum Risk, makes Plausible Deniability a series of Check-listed elements, and allows them to Dupe others into unwittingly holding the Liability.

    If we could see all those millions and millions of White House e-mails, Blackberry messages, or those untold numbers of withheld documents – who doubts that we’d find this same pattern of Improper Political Influence repeated over and over, again – kind of like a ‘Boss-pleasing Protocol’ that everyone used, just like they were told to.

    Can you just imagine all the Rove, Miers, Goodling, Sampson, and Sara “He’s Lazy!” Taylor communications traffic working through this same 10-step process in the US Atty Firings?

    The desired outcome is always known in advance – all the hoopla is about making it look legit to everyone else.

    Of such was the confetti of bad faith made in the Bush Parade.

  16. BillE says:

    Specter is toast in PA. He’s burned bridges with the Rs and the Ds have good candidates already. The party don’t like him much after so many years of poking them in the eye. His only shot on the R side is a religious nut already in the primary him and now a Randian in Toomey splitting up the protest vote.

    My guy Murphy is looking good ( yeah I worked for him and BO )

  17. Leen says:

    called Spceter
    the woman answering the phone was incredibly polite. After I let her know how disappointed that Specter would “obstruct” such a qualified nominee. I then asked what were Specter’s reasons for doing so. She answered “I don’t know” Asked if they were getting lots of phone calls “yes”

  18. JohnLopresti says:

    Leahy is reportedly warning the senators who are employing the anonymous hold for some nominations that he is preparing to bring some transparency to that privilege.

    Continuing to cast the gaze at contingent nominations of the sort that put Frist in 2005 curmudgeonly mode, I viewed a still available CNN 1 hour 40 minute recorded broadcast of an American Academy of Arts and Sciences panel which included Associate Justice Souter with a thoughtful presentation with q+a concerning his interest in the historical framework of mental vitality; the event occurred yesterday. Several passages which appeared excerpted in the lawblogs seemed to indicate the video content might be germane to nomination scuffles in Senate history. Time was too brief to locate the video passage precisely, though it may be during the informal session near the tape’s conclusion. I recommend review of his comments, however. Even the NH accent seemed to infuse his take with charm.

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