Dawn Johnsen: Finish the Job of Fixing Office of Legal Counsel

Dawn Johnsen has a must-read op-ed today describing how the Bybee memo damaged the Office of Legal Counsel.

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department’s Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination — withdrawn this spring — to head this office. While attention understandably is focused on confirming the president’s Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the “torture memo” by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.

There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

While I agree with everything Johnsen says (go figure), I’m wondering, why now? Is she worried that Obama’s preparing to nominate someone who does think the Bybee memo is reasonable? There’s also this bit, at the end, which suggests she’s pushing for more transparency in OLC than there is now.

The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo’s conclusion that the president’s constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That’s how democracies work.


The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks.

Granted, the torture memo did come out via a leak, so her comment is not totally out of context. But we have had a recent leak about OLC’s involvement in efforts to make our stance on Gitmo trials coincide with our stance on drones.

Is there something specific Johnsen is responding to?

49 replies
  1. bonjonno says:

    wow, she speaks so clearly and forcefully it’s no wonder they didn’t allow her a position of power. Our loss.

  2. Peterr says:

    Hard to tell if this is looking ahead at a rumored nominee-in-waiting, or if this is a shot at some of the Senate neanderthals.

    It also may be a veiled statement of support for certain members of the House, especially members of the House Judiciary Committee, like Jerry Nadler. In April 2009, Ryan Grim at HuffPo wrote:

    Rep. Jerry Nadler, a senior Democrat on the House Judiciary Committee, called Monday for the impeachment of federal judge Jay Bybee, one of the principal authors of the torture memos released last week by the Obama administration.

    “He ought to be impeached,” Nadler said in an interview with the Huffington Post. “It was not an honest legal memo. It was an instruction manual on how to break the law.”

    Nadler, a New York congressman, is chairman of Judiciary’s Constitution, Civil Rights, and Civil Liberties Subcommittee. Bybee is currently serving a lifetime term on the Ninth Circuit Court of Appeals, appointed in 2003 and confirmed before it was publicly known that he had authorized the torture of detainees.

    Nadler is meeting with Attorney General Eric Holder on Tuesday to argue that the release of the torture memos further buttresses a call he had made earlier for a special prosecutor on torture.

    “Any special prosecutor on torture would have to look at the authors of those torture memos,” said Nadler. “And certainly you have real grounds to impeach him once the special prosecutor took a good look at that. I think there ought to be an impeachment inquiry looked at in any event. Which should happen first, I’m not sure.”

    Nadler has no voice in Senate confirmation battles, but reading through Dawn’s piece makes me wonder why the authors of such memos like Bybee and John Yoo should continue to have any role in shaping the American judicial system.

    Dawn doesn’t mention any names, but Bybee and Yoo are at the center of her critique. Beyond Nadler and the HJC, I wonder what Dean Edley thinks of this piece from Dawn.

    • timr says:

      Yes, this ass should be impeached. Just how the hell did he manage to get the votes needed? Did some democrats vote for him?
      What is desperately needed is that all those who either tortured or who approved torture should damn well be tried in court. If we can not find any court in the US with the balls to do this then ship them out to the international court.
      We need to do this if for no other reason than to regain the leadership that we had in the world, before bush came along.
      What the rethugs are doing to delay and to attempt to change the subject should not be allowed. That the MSM has done nothing about this says volumes about who now controls the news in the US.
      Authoritarianism is the watchword. The rethugs have become the Authoritarian party. Google Authoritarianism and read for yourselves the studies-some multigenerational-that show where we are headed if we do nothing. How to recognize an Authoritarian, be they a leader type or a follower type.

  3. BoxTurtle says:

    Is she worried that Obama’s preparing to nominate someone who does think the Bybee memo is reasonable?

    Gonzo is available. Yoo is probably uncomfortable in his current situtation. I suppose I could dream that Bebee would feel threatened enough to “retire” and take the post.

    Kidding aside, I don’t think she’s responding to anything specific. Just reminding folks that the office is empty and why. I don’t care how nice a person she is, there’s GOT to be some bitterness about how she was treated.

    I think that ANYBODY nominated for that post now needs to be treated as suspect. ObamaLLP is not going to nominate anyone who will not toe his line. He’s seen how important it is to control DOJ. Clinton didn’t and had special prosecutors all over him because of a blowjob. Bush did and is getting away scot-free committing war crimes.

    Boxturtle (Now class, what lesson did President Obama learn from that?)

    • Hugh says:

      I agree with you. Just look around at the people Obama has surrounded himself with. They are a nasty crew, and they are playing for keeps. Obama didn’t just happen to leave Dawn Johnsen dangling for more than a year. I think he realized that nominating someone like her was a mistake. But her nomination, not her confirmation, served a useful purpose. It kept the OLC without a permanent head. I am pretty sure this is why the Administration was perfectly content to keep her nomination going for so long. We all know that if and when Obama does get around to naming someone else to the OLC position, it will be a corporatist apparatchik. But seeing how long he drew out the Johnsen nomination, Obama has not been in any hurry to name someone else.

      There are a couple of reasons Johnsen might be speaking out now. It’s been a while since she withdrew her nomination, and so a good time to reflect on the OLC without charges of sour grapes being thrown about. Or she may have heard another nomination is in the works and wanted to go on record for the type of person the office needs.

      But again, we need to dispense with this idea that Obama and the Democrats are anything except deadly serious about their corporatist agenda and manipulation of the levers of government to further that end. These are not people we can work with, make common cause with. We can only oppose them.

      • earlofhuntingdon says:

        [W]e need to dispense with this idea that Obama and the Democrats are anything except deadly serious about their corporatist agenda and manipulation of the levers of government to further that end. These are not people we can work with, make common cause with. We can only oppose them.

        That’s why Mr. Obama seems happier working with conservative Republicans than his own base, in working for insiders more than the voters who naively expected change from a man who succeeded so spectacularly in working the status quo.

  4. Leen says:

    EW the Diane Rehm show is focused on news of the week right now. Bet you could get a relevant question in about this op ed by Dawn Johnsen and the OLC. David Corn is one of the guest. 30 minutes left. hundreds of thousands listening
    [email protected]
    1-800- 433-8850 keep pushing redial

  5. Arbusto says:

    While His plate is full, although little by way of legislation has escaped the Senate due to his soft ball approach to the august Senate, or forcing the issue on the many vacancies awaiting confirmation, he and his are more than able to shore up and expand the Imperial Presidency and entrench our self serving oligarchy.

    How gentile of Ms Johnson to spare ObamaCo from criticism on her confirmation, damning by faint praise, process. Ms Johnson will not see employment in the government in the capacity of an appointed position in the near future. I wish she would have let the White House feel the lash of her tongue instead of a pat on the po-po.

  6. bobschacht says:

    …There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

    While I agree with everything Johnsen says (go figure),…

    So does this mean that you disagree with bmaz’ vehement insistence that ObamaRahma could have pushed her nomination through anytime they wanted to, and that the Republican opposition was not, in fact, the real obstacle to her nomination?

    Thanks for your follow-up on this. We really need someone like Johnsen in that position.

    Bob in AZ

    • bayofarizona says:

      The Senate does suck, but everyone forgets the Presidential power of recess appointment. Just adjourn the Senate and appoint everyone you want. The Shelby hold was a great opportunity to do so.

      Why is is that Obama’s defenders conveniently forget one of the few powers solely within the discretion of the executive?

  7. bmaz says:

    See, I think Obama has pretty much finished up the job of “fixing” the OLC that was started by Bush/Cheney. It wasn’t broken prior to their Presidencies, but Bush and Obama have “fixed” the OLC nevertheless. And the job is just about complete. We have a new norm, and it is neither a good nor proper one, yet it is the new norm.

  8. tjbs says:

    Expecting this make believe President would take a principled stand, toe to toe for anything is, well, make believe.

  9. Mary says:

    Is there something specific Johnsen is responding to?

    If I were her, I’d have the Kagen nomination very much on my mind. Kagen’s been such a torture apologist and a political haven and maven for torture lawyers like Goldsmith in search of solace and monetary/career security, along with supporting the Obama approach of shipping suspects (or even known innocents) to war zones to justify holding them and covering up what was done to them.

    But I don’t think anything will come of it – we’re going to be stuck with Kagen and that’s enough to make me wish Obama had never won. With McCain and a Democratic Congress, there’d at least have been some window dressing offered up before putting torture approval on the Sup Ct.

  10. wirerat1 says:

    I’d agree with the sentiment that it was the White House that refused to push her nomination or defend her. Why, you ask? Because the White House doesn’t want to give up the power that Bush had taken for the executive branch. Why would it want to do that?

    Obama is a corporate whore who wants nothing more than to take all the power he can and take bribes from the corporations who put him there to do their bidding.

    Can’t wait for the war in Iran. My son and I will be leaving the country when that comes. I will be damned if he is going to be drafted and have to fight and die in another corporate mandated/funded/supported war.

  11. Frank33 says:

    There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat.

    Dawn Johnsen deserves great credit for opposing torture. The Obama and Republican torturers deserve great shame and contempt.

    But it is not just Johnsen who is not allowed in the government. Only torturers need apply. Only torturers are allowed to make decisions about the Law. Only torturers are allowed to make wars, keep the secrets and spy on everyone else. The torturers have given the government to the multinational corporations.

  12. oldgold says:

    Much of this commentary overlooks two salient facts. They are that Obama nominated [01-09] and then re-nominated [01-20-10] Dawn Johnsen to head the OLC.

    • Mary says:

      ANd that he didn’t recess appoint.

      And that he never lobbied for her.

      And that the votes were there for her – including Lugar being onboard.

      But yeah – Obama nominated her. Which is, after all, more than he has done for a CIA IG.

    • Hugh says:

      You should look at my #17. Obama made a tiny number of progressive appointments and took a couple of progressive positions (as for example to close Guantanamo in a year) early on. But he has walked back and reversed the positions and the progressives either got dumped or left to hang. As I point out in may #17, keeping the Johnsen nomination going likely had nothing to do with actually wanting to see her confirmed.

    • bmaz says:

      Nothing said here overlooks those facts, and you damn well know it because you have trolled with the same shit on my posts explaining this in painful detail. Don’t be disingenuous.

      • oldgold says:

        I am not being disingenuous. I am disagreeing with you. Is that permitted?

        As for your earlier explanations, I thought they were unpersuasive. Is that OK? Is everyone who comments here required to hold the same position?

        I would note that your claim that Obama is the person primarily responsible for Dawn Johnsen not being confirmed, has not been advanced by Dawn Johnsen. Is she too being disingenuous? Of course, it is possible that she has not had the opportunity to read your explanations.

        • bmaz says:

          Your specific statement was

          Much of this commentary overlooks two salient facts. They are that Obama nominated [01-09] and then re-nominated [01-20-10] Dawn Johnsen to head the OLC.

          Nothing in this post, nor any other post here, has ever overlooked that point. Never. It is a wholly conclusory statement of your own germination and unsupported by any fact. You are more than free to disagree with this too. But bleating about whether or not you can express your contrary opinions, when you constantly do so freely, seems remarkably suspect. Disagreement with your wrongheaded and conclusory statements is not censorship.

    • bayofarizona says:

      He also claimed to filibuster (not simply vote against) the FISA amendments act in 2008 while running for the nod. After it was a done deal, he voted in favor. Same deal.

      • bmaz says:

        Keep in mind that the FAA became a “done deal” if not at Obama’s bidding, then certainly with his full consent and participation, his token public statements notwithstanding.

  13. Mary says:

    While it’s a bit of restating the obvious, part of what DJ may be thinking about is that we’ve had Democratic control since 2006 and nothing has been done or even pushed seriously to address the huge OLC issues (and, for that matter, the DOJ in-housing of “investigations” as well, with no independent counsel legislation any more).

    Now, it looks like Dems may start to go down for the count and I know a lot of people from a State like IN that was a swing one for Obama who wouldn’t vote for him again. People who made really almost ugly jokes about Palin are getting to the point where they’d take her, if that’s what it took to ditch him.

    So in that kind of context, she may feel some real impetus that if something is going to be done, it needs to be done now. Tacked onto all of that is the overlay that Koh and Johnsen have been taking the Executive branch further into assassination territory than Bush and his crew went – and nothing from Congress or the courts to serve as a counterbalance. Now we are also going to be having Military Commissions and trials based on torture. The Ghailani trial, btw, has shown the same disregard to date of the defendant’s torture as the precedents from Padilla and Saleh and other “terrorist” cases. [An interesting side note is that the most recent detainee “suicide” in GITMO, the one that no one can figure out since it supposed occured under 24 hour psych watch, anyway, one of the main charges against that detainee has been proven to be false and was based on torture statements made by — Ghailani]

    We are also looking at forever detentions, deploying assassination squads into more countries around the world, and a slew of other reports from the last few weeks on the criminality and depravity being embraced by the Obama DOJ/CIA/DoD etc. that might make her feel like there’s a sense of urgency involved in someone putting on brakes. Especially if we are about to have two years now of more and more Republicans being elected and a very possible ousting of Obama and enshrinement of someone like Palin into ownership of the powers claimed by Obama, without even a hiccup from the Dems.

      • Mary says:

        I mean what OLC enables – it gets implemented on different fronts and with different faces, but it’s what OLC enables. If OLC had nixed the drone program as illegal, it wouldn’t have mattered how enthusiastic both Koh and Jeh Johnsen were; if OLC had nixed the rights of then DAG, Larry Thompson to send Maher Arar to be disappeared and tortured, then Kagan and Katyal wouldn’t have had the briefing to the Sup Ct. etc.

        • BoxTurtle says:

          If OLC had nixed the drone program as illegal, it wouldn’t have mattered how enthusiastic both Koh and Jeh Johnsen were

          I bet you 50 quatloos that wouldn’t have stopped (or even slowed down) the drone program. At worst, it would have caused the OLC head to resign and be replaced with someone who’s first name is “Acting”. The opinion would then get recalled for review.

          Boxturtle (I also bet 50 quatloos that the drone program is THE litmus test for the position)

  14. jedimsnbcko19 says:

    Obama end games is pretty simple,

    Obama and Rahm want the Democrats to lose control of the House and Senate.
    Especially the House.

    Obama and Rahm are republican hatchet men, they are trying to destroy the progressives in the House.

    It is not complicated at all.

    Dawn Johnsen is not Blanche Lincoln.

  15. wigwam says:

    There is no simple answer to why my nomination failed.

    Dawn Johnsen doesn’t get it.

    Her nomination, the promise to close Gitmo, the promise of transparency were all “head fakes,” just like the promise to filibuster any bill that gave retroactive immunity to the law-breaking telcos. Since then, Obama’s true colors have come out, and we have discovered that on matters of human rights and rule of law, he is well to the right of George W.Bush, who did not prosecute whistle blowers and/or authorize the assassination of American citizens (so far as we know).

  16. MadDog says:

    Speaking of the OLC – From Josh Gerstein at Politico:

    Panel named to hear Yoo appeal

    The names are out (6 page PDF) of the appeals court panel which will hear arguments Monday morning in a closely-watched lawsuit against former Justice Department official John Yoo and legal experts say the assigned judges could make Yoo’s appeal an uphill battle, though the outcome is far from certain…

    • Peterr says:

      Rebecca Pallmeyer — Clinton appointee to the N IL district court, on loan to the 9th circuit court of appeals. She was the judge that handled former IL Governor Ryan’s corruption case.

      Pamela Ann Rymer
      — Reagan appointee to the N CA district court in 1983, and elevated to the 9th Circuit Court of Appeals in 1989 by GHW Bush (taking Anthony Kennedy’s seat when he moved to SCOTUS). Before all that, was director of political research and analysis for Goldwater’s presidential campaign.

      Raymond Fisher — Clerked for Justice Brennan, served as Associate AG in Clinton administration, then appointed by Clinton to the 9th Circuit bench in 1999.

      Fisher’s background as AssocAG could be quite interesting as this case moves along. Yoo’s lawyers will be much less likely to be able to get away with making unsubstantiated claims about how the DOJ “always” handles things.

  17. wigwam says:

    But what about Marty Lderman? He is the righteous Georgetown law professor who used to write those hard-hitting Balkinization postings against torture and other evil-doing by the Bush Administration. Per the Wikipedia:

    Martin “Marty” S. Lederman is a Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel (OLC), appointed by President Obama in January 2009. He previously served as an Attorney Advisor in OLC from 1994 to 2002. He has concentrated on questions involving freedom of speech, the Religion Clauses, congressional power and federalism, equal protection, separation of powers, copyright, and food and drug law.

    Lederman is currently on leave from his position as Associate Professor of Law at the Georgetown University Law Center. He teaches courses in constitutional law, separation of powers, and executive branch lawyering. When not serving in government, he has been a regular contributor to the weblogs SCOTUSblog and Balkinization. His blogging and scholarship focuses on matters related to executive power, detention, interrogation, civil liberties, and torture.

    I wonder how he fits in with Obama’s pack of evildoers.

  18. earlofhuntingdon says:

    Johnsen has had months to make these observations and chose not to. The climate for forthright legal views in DC has worsened, not improved, which makes speculation about “Why now?” totally appropriate. So restrained a voice as Johnsen’s almost certainly has specific motivation to finally speak.

  19. earlofhuntingdon says:

    Scott Horton makes the point that Harry Reid has been incompetent and Rahm Emanuel has been unwilling to devote resources to pushing any of Obama’s hundreds of nominees, let alone a controversial one like Johnsen, who might act on the audacity Mr. Obama claims to hope will motivate government service.

    Mr. Emanuel must feel that so enabling conservative Republicans, by failing to advocate for Obama’s avowed staffing choices, somehow gives him street cred or more power. It reality, it makes him more of a tool than he was before becoming COS.

    That Obama-Emanuel reluctance to support their own team is a dramatic failure that goes under-reported (except here). It is so narrowly self-serving, it amounts to negative leadership. It is also a failure to engage in substance, which would require looking back, assessing what one finds, and using it to plan and implement a different course. Mr. Obama seems happy to have his hand on the tiller, and happier still not to deviate far from the course set by his predecessor.

  20. earlofhuntingdon says:

    On one level, Ms. Johnsen is clear about her concerns:

    1. The OLC hasn’t had a Senate-confirmed leader for six years.

    That makes it easier for the Attorney General and the White House to fashion their own advice, based on political, not legal considerations.

    2. The OLC’s job is to advise the president and executive branch agencies on the legality of their contemplated actions, to ensure that they comply with the law. The OLC ought to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.” The OLC’s job is sometimes to tell the president “No”.

    3. “The stability of the rule of law must not depend on leaks.”

    In other words, political whim is a poor substitute for the rule of law as a foundation for constitutional government. Political whim, “expansive theories of presidential power”, and ambition to power is precisely what the rule of law is designed to guard against.

    What’s a president to do? Invigorate his own corporation’s government’s ability to tell him “No”, or put that power into permanent decline? Ms. Johnsen seems to be telling the public what many readers of this blog know: Only sustained, outside pressure will persuade politicians that there are any consequences at all to attempts to increase their own power, to the detriment of the institution they run and at the public’s expense.

  21. roydavis says:

    I have arrived a the conclusion that the Obama administration is the Emmanuel administration, and it is all about capitulation and corporations, not really different from the Bush administration. Without an OLC, especially one like Johnsen, Holder has no pressure to “look back”. Obama knows the left has no spine, so he postponed Johnsen until she gave up hope. Her editorial is the least she can do. I cannot imagine her disappointment or feeling of impotence. She is trying, and so are the progressive bloggers, but talk and discussion are proving to be quite irrelevant. The politicians don’t need to listen because the public is no longer their constituency. The whole argument for Bush accountability died when Obama “rendered” his first foreigner person, and it was further cemented when he appointed Bush to be Clinton’s partner in the Haiti recovery plan. He has done not one thing to show his partnership or concern about progressives or progressive values except the appointment of Van Jones. Then he let an asshole like Glen Beck drum him out without comment. We keep getting more of this and we’re still tallking! Talking is no longer sufficient. Savio;s message was right then, and it is right now. We need to clog the wheels of that damn Washington machine.

  22. harpie says:

    Dawn Johnsen on the Appointments Dilemma; Scott Horton; 6/11/10

    […] Under Obama there may have been progress on some fronts, but the recent controversies over drone warfare and the Omar Khadr prosecution reveal that there are too many unresolved contradictions in the administration’s position. […]

    Genocide Convictions at The Hague;
    Scott Horton; 6/11/10

    Vujadin Popović and Ljubiša Beara, may actually be worthy of more attention. They were charged with and convicted of “extermination as a crime against humanity” and “murder as a violation of the laws and customs of war.” The convictions rest on evidence that the genocidal crimes were not spontaneous, but rather the result of decisions taken within the formal chain of command during the 1992-95 war. And that makes it far more likely that the trial of Bosnian Serb leader Radovan Karadžić will similarly conclude with a genocide conviction.

    • bmaz says:

      As much as I am not a fan of Harry Reid, I do not think Horton is right to finger Reid on the failure of Dawn Johnsen’s nomination. Every iota of evidence I have seen and heard, and I was deep in these weeds for quite a while, points directly and unequivocally to the Obama White House as the culprit. Not intransigent Republicans and not Harry Reid, but the Obama White House.

      • harpie says:

        Something told me that was the case, so thanks for letting me know the outcome of your weeding.

  23. speakingupnow says:

    The Obama administration files to dismiss case against John Yoo

    As mentioned by Daniel Ellsberg, “there also is the issue of the Obama administration criminalizing and prosecuting whistleblowers to punish them for uncovering scandals within the federal government. Such as the arrest, of an Army intelligence analyst for leaking the “Collateral Murder” video of a deadly US helicopter attack in Iraq, which was later posted online at WikiLeaks. Also, the recent US indictment of Thomas Drake. Drake was a former senior official with the National Security Agency (NSA) who provided reporters with information about failures at the NSA.”

    “Ellsberg: For Obama to indict and prosecute Drake now, for acts undertaken and investigated during the Bush administration, is to do precisely what Obama said he did not mean to do — “look backward.” Of all the blatantly criminal acts committed under Bush, warrantless wiretapping by the NSA, aggression, torture, Obama now prosecutes only the revelation of massive waste by the NSA, a socially useful act which the Bush administration itself investigated but did not choose to indict or prosecute! Bush brought no indictments against whistleblowers, though he suspended Drake’s clearance. Obama, in this and other matters relating to secrecy and whistleblowing, is doing worse than Bush. His violation of civil liberties and the White House’s excessive use of the executive secrecy privilege is inexcusable!”

    I think many of us realize the direction this administration is going.

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