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Squabble in Administration over Rule of War, Khadr, Drones

Steven Edwards, one of the four journalists banned from Gitmo for reporting publicly available information, has an important story on squabbles within the Obama Administration about what should be in the recently updated Gitmo military tribunal manual. At issue is whether actions like Khadr’s alleged crime–throwing a grenade during active warfare–should be included.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate.

In a turf battle familiar from the Bush Administration, the dispute pits State–Harold Koh–against DOD–General Counsel Jeh Johnson.

U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

Of particular interest, Koh appears to have shared the concerns laid out here–that if we treated Khadr’s alleged attack as a war crimes violation, it would put our own use of drones in the same category (though I imagine it is in that category in any case).

Along with Koh, two OLC attorneys opposed the inclusion of murder in the manual. From the sounds of things, others in the Obama Administration overrode these two OLC attorneys. Which I guess is a lot easier to do when there’s no Assistant Attorney General at OLC to champion such battles. One more benefit to the unilateralists of scotching Dawn Johnsen’s nomination, I guess. But it does raise questions about whether OLC under Obama has gotten even more politicized than under Bush?

One more note before I send you off to read the whole thing. This article doesn’t mention Daniel Meltzer, the Deputy White House Counsel who resigned earlier this month to spend more time with his law students. But the timing of it would certainly line up.

Updated: Corrected reference to specific OLC lawyers–my post went beyond what Edwards wrote in his story.

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. Read more

The Inevitable Sacking Of The Dawn Johnsen Nomination

There was never any question but that the nomination of Dawn Johnsen to be head of the Department of Justice Office of Legal Counsel would be withdrawn. None. Much to the dismay of progressives everywhere who believe in the principles Professor Johnsen has written and stood for, early on in the Obama Administration it was crystal clear Mr. Obama and his Administration had retreated completely from the what has turned out to be empty rhetoric of his campaign and short term in the Senate.

As dday and Sam Stein have already alerted, Professor Johnsen’s nomination has been withdrawn. I want to focus on a later part of Stein’s piece in the Huffington Post, not to pick on Sam who is a fantastic reporter, but to knock back the bullshit meme that is going to be pervasive in the media:

The withdrawal represents a major blow to progressive groups and civil liberties advocates who had pushed for Johnsen to end up in the office that previously housed, among others, John Yoo, the author of the infamous torture memos under George W. Bush.

But the votes, apparently, weren’t there. Johnsen had the support of Sen Richard Lugar (R-Ind.) but was regarded skeptically by Sen. Ben Nelson (D-Neb.) — primarily for her positions on torture and the investigation of previous administration actions. A filibuster, in the end, was likely sustainable. Faced with this calculus, the White House chose not to appoint Johnsen during Senate recess, which would have circumvented a likely filibuster but would have kept her in the position for less than two years.

In a statement accompanying Johnsen’s letter, White House spokesman Ben LaBolt said her credentials were “exemplary and her commitment to the rule of law has been proven time and again.”

“After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to – to provide impartial legal advice and constitutional analysis to the executive branch,” LaBolt added. “He will work now to identify a replacement and call on the Senate to move swiftly to confirm that nominee in order to achieve those goals.”

It is indeed a serious blow to progressives; but far more than that, it is a serious blow to the country and its desire to bring common sense, morality and the rule of law back to the tattered United States Department of Justice. No division of the DOJ has more symbolized the rot, moral and legal decay brought on by the Bush/Cheney Administration than the OLC where the sick and despicable opinions of John Yoo, Jay Bybee and Steve Bradbury emanated from. This is why Dawn Johnsen was both symbolically and pragmatically so critical and so welcomed. But it was not to be; it was never to be.

But Stein, and the rest of the major media that has had their head in the sand and not been paying attention need to wake up and realize that the failure of the Johnsen nomination is NOT and NEVER WAS about a lack of votes. No, it is completely and unequivocally about the failure of Barack Obama and his Administration to support their own nominee and stand up for the values she proffered which led them to select her in the first place. This is about Obama, not the Senate, not Republicans and not about obstruction. From an earlier post:

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

By the way, we have now seen the OPR Report on the “Torture Memos”; did you know that there has been a parallel OPR investigation going on all along over the OLC illegal warrantless wiretapping memos?? You have to wonder where that report is and how it played into the refusal to support Dawn Johnsen. You also have to wonder why nobody else is asking that question.

I wrote about this previously here and here and demonstrated the point with evidence. Yet no matter what my effort, the point refused to gain traction in the greater media. Will the major media continue to flail with their head in a dark place? You can bet on it.

Koh v. Johnson: Material Support in Far Away “Battlefields”

I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.

Obama Discovers Recess Appointments–But Not for Dawn Johnsen

Congratulations to Craig Becker, who has finally gotten his recess appointment to serve on the National Labor Relations Board. As well as 14 other people who were similarly recess appointed today.

Not on that list?

Dawn Johnsen.

Any more questions about why Johnsen hasn’t assumed her role as Assistant Attorney General yet?

Update: I asked the White House for comment on why Johnsen wasn’t included. This is the comment I got back, from Spokesperson Jen Psaki:

Of the 77 people on the calendar, we are only recess appointing 15 and there are a number of qualified individuals the President has nominated that do not fall in this group.  If the Republicans do not end their campaign of obstruction, the President reserves the option of exerting his authority to recess appoint qualified individuals in the future, but our hope is that we can move beyond the partisan politics that have held up the process for the last fifteen months for the good of the American people.

Obama to Shelby (and Others): Let Those Hostages Go

graphic: twolf1

Apparently, Obama told Mitch McConnell that if the GOP didn’t start releasing their hostages, he would recess appoint the whole lot of them. And, as a result of a direct threat, McConnell and his buddies released 27 of their hostages.

But Obama is calling for the Republicans to release all their hostages.

Today, the United States Senate confirmed 27 of my high-level nominees, many of whom had been awaiting a vote for months.

At the beginning of the week, a staggering 63 nominees had been stalled in the Senate because one or more senators placed a hold on their nomination. In most cases, these holds have had nothing to do with the nominee’s qualifications or even political views, and these nominees have already received broad, bipartisan support in the committee process.

Instead, many holds were motivated by a desire to leverage projects for a Senator’s state or simply to frustrate progress. It is precisely these kinds of tactics that enrage the American people.

And so on Tuesday, I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments. This is a rare but not unprecedented step that many other presidents have taken. Since that meeting, I am gratified that Republican senators have responded by releasing many of these holds and allowing 29 nominees to receive a vote in the Senate.

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future.

Sure, it reads like a sternly-written letter. But with recess upon us in just over a week, it may not be an idle threat. I’ve asked for clarification, but the general read on this is that Obama is not going to recess anyone this time around.

So it is, indeed, a sternly-written letter.

Obama Had 60 Votes For Dawn Johnsen's Confirmation Last Year; Johnsen Stalled Again This Year

3855The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again. The renomination of Johnsen was set to be voted out of the Senate Judiciary Committee Thursday, but somehow they just “ran out of time” before they could get to it, even though they found time to muse about a couple of far less significant district court judges and other lesser nominees.* It is a continuing and puzzling pattern of delay and diversion that has kept Dawn Johnsen’s nomination in limbo for better than a year.

I previously wrote about the failure of the Obama Administration to support the Dawn Johnsen nomination, a far less than good faith effort that finally resulted in Johnsen’s nomination being killed by operation of Senate Rule XXXI when they adjourned on Christmas Eve, December 24, 2009. It turns out what I wrote has been borne out and, as lawyers are wont to say, proved up pretty well.

As I will detail below, there is now crystal clear evidence that Barack Obama and Harry Reid had the sixty (60) votes for cloture on the confirmation of Dawn Johnsen all along last year, at least subsequent to July 7, the day Senator Al Franken was sworn in, and despite that fact refused to call a vote and get Johnsen installed in her critical post at OLC. Here is what I wrote immediately following the Christmas Eve death of her nomination:

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

My calculations on the 60 votes being available were confirmed upon Obama re-nominating Johnsen when it was immediately announced to much ballyhoo that Arlen Specter would be the 60th vote for cloture on the re-nomination; albeit apparently only after Johnsen has been again dragged through the committee process and other vagaries of prolonged confirmation procedure. The TPM report of Specter’s intention to support Johnsen’s confirmation confirms exactly what I stated, Specter was the 60th vote (there were always 58 Dems plus Richard Lugar) and was there all along; all Obama and Harry Reid had to do was call the vote. Read more

Why Did Obama Kill The Dawn Johnsen Nomination?

imagesYesterday, when I wrote about 34 Obama Nominees Not Named Dawn Johnsen being confirmed by the Senate on the heels of the healthcare vote, and before they left town, I was not aware, in addition (h/t earlofhuntingdon), the nomination was now completely dead. From Main Justice:

The Senate approved a unanimous consent request today to hold over several nominees for the second session of the 111th Congress, which begins in January.

But nominees to head three DOJ offices: Dawn Johnsen, for the Office of Legal Counsel, Mary L. Smith, for the Tax Division, and Christopher Schroeder, for the Office of Legal Policy, were returned to the White House before the Senate recessed for the holidays.

Johnsen, who was nominated in February, was approved by the Senate Judiciary Committee in March on a party line vote.

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

The nomination of Dawn Johnsen to be the head of the Office of Legal Counsel at DOJ, a critical post, is now truly dead. If Ms. Johnsen is to serve, she will have to be renominated by Barack Obama and start over. She never got the up or down vote promised as soon as the Senate had done healthcare, she never got an ounce of support from the Administration that nominated her, and a year of her life was taken in what certainly appears to be a cowardly and demeaning Read more

34 Obama Nominees Not Named Dawn Johnsen Confirmed

imagesBarack Obama first announced his intention to nominate Dawn Johnsen, a distinguished lawyer, professor of Constitutional law and former AAG in the Office of Legal Counsel for the DOJ, to be his head of the supremely critical Office of Legal Counsel nearly one year ago on January 5, 2009. Ms. Johnsen is eminently qualified and one of the best selections Obama has made for any position in his administration. In spite of that fact, Barack Obama and Harry Reid have callously and shamelessly left her twisting in the wind and have refused to put any emphasis or effort in forcing her confirmation. It is one of the greatest unpublicized scandals of an increasingly feckless Obama Presidency.

As recently as the end of November, there were promises that the Senate would take up Dawn Johnsen’s confirmation as soon as they were done with the healthcare bill. Well today, after patting themselves on the back for passage of the Bailout For Health Insurance Corporations Bill, the United States Senate managed to confirm thirty four (34) Obama nominees. None of them, of course, are Dawn Johnsen. Still she waits.

Here is a list of nominees that Hanoi Harry Reid, and without any question Barack Obama himself, since he will not lift a finger to help, think are more important than installing the head of the Office Legal Counsel, to oversee reformation of the rotting festering hole that produced the torture and wiretapping crimes of the previous administration: Read more

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.

Read more