Infamously, it was the Office of Legal Counsel (OLC) under the Bush administration that twisted US and international law and all rational thought to justify the use of torture and the elimination of civil and human rights for people the president deemed a threat.
President Obama has taken several steps to restore the legitimacy of that office. First, he has released a number of the legal memos written in that office under the Bush administration that justified the use of torture. Second, he has nominated Dawn Johnsen to head the office.
Johnsen is a distinguished legal scholar with years of experience in civil rights law and in the Department of Justice itself when she served as the Deputy Assistant Attorney General for OLC from 1993-1998. If confirmed, Johnsen, a Yale graduate and former federal court clerk, would also be the first woman to hold the position.
Despite an already distinguished and highly regarded legal career, Sen. John Cornyn (D-TX) has opposed confirmation of Johnsen because, in his view, she lacks the "requisite seriousness" for the job. Cornyn's comment unfortunately lacks the "requisite seriousness" a Senator must show in his or her Constitutional duty towards the confirmation process.
Senate Republicans oppose Johnsen's nomination for reasons they'd prefer not to talk about too much. Johnsen has written and commented extensively on matters on separation of powers (especially presidential power) and civil liberties. She was also among a strong chorus of legal critics of the Bush administration's justification of torture, a fact that shames Bush's congressional allies, like the Senate Republicans who today are blocking her nomination.
In her writings, Johnsen also took issue with secretive claims of broad presidential authority to violate the federal criminal torture statute and the Foreign Intelligence Surveillance Act. Both of these assertions of authority provoked strong bipartisan condemnation that echoed Johnsen’s criticisms. You may remember the kind of twisted legal logic the Bush administration used to insist during war, neither Congress nor the courts had the authority to oversee or rein in its actions.
In preparation for the position, Johnsen has moved to restore OLC’s integrity by calling together a bipartisan group of former OLC attorneys, which authored a statement of 10 "Principles to Guide the Office of Legal Counsel."
Some Senate Republicans seem willing to apply the abortion litmus test on Johnsen as well. Johnsen, early in her career, worked as general counsel for NARAL, an abortion-rights advocacy group, and having written on this constitutional right.
But Johnsen has also sharply criticized the infusion of ideological agendas and motives into the interpretation of the Constitution and US laws that characterized the Bush administration on so many levels. One of the guiding principles of the new OLC would be to "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 … inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.”
Johnsen's nomination has the backing of dozens of legal, civil rights and labor movement organizations. Her advocacy of restoring US integrity on the issue of the treatment of its prisoners and on the vigorous protection of the Constitution is serious and much-needed. There is no justifiable reason the US Senate should delay any longer in confirming this nomination.
