Editore"s Note
Tilting at Windmills

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January 5, 2009
By: Hilzoy

Dawn Johnsen At OLC

As Steve noted earlier, the Obama transition team has announced several new appointments at the Department of Justice. I want to focus on one: Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel.

Like many people, I had never heard of the Office of Legal Counsel before the Bush Administration, and more specifically before John Yoo's torture memos came out. The OLC basically gives legal opinions for the Executive. It tells, for instance, the CIA and the Department of Interior what it judges to be permissible under the laws, and its opinions are binding. Under George W. Bush, the OLC seems to have been used to provide Get Out Of Jail Free cards -- opinions that would license whatever Bush and Cheney wanted to do, and provide some cover for people who did those things. That the OLC has that kind of power makes it a very, very important job.

That's why I decided to look into Dawn Johnsen's writings a bit -- especially when I saw that they had titles like "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power". I accessed it through Lexis-Nexis. Basically, it notes that neither the Courts nor the Congress adequately constrain the Executive. The Courts are limited by issues of justiciability (e.g., whether or not someone has standing), and by doctrines of deference. The Congress may not want to constrain the Executive, especially when the President and the Congressional leadership are from the same parties; besides, the Executive might keep its actions secret, or refuse to follow the plain meaning of statutes. Thus, there must be checks internal to the Executive as well. She focusses, conveniently enough, on the OLC, and writes:

"OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government. The Constitution expressly requires the President to "take Care that the Laws be faithfully executed." This command cannot be reconciled with executive action based on preferred, merely plausible legal interpretations that support desired policies, rather than an attempt to achieve the best, most accurate interpretations - especially when the enforcement of a federal statute is at stake. For OLC to present merely plausible interpretations framed as the best interpretations would, as the Guidelines acknowledge, "deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action." Alternatively, if such advice were given with a wink and a nod so that the President was not actually misled, OLC would be wrongfully empowering the President to violate his constitutional obligations."

It is, of course, easy to say that the OLC's opinions should be driven by the law, but she goes on to ask: how can we make sure that this happens? She proposes a number of safeguards, of which the most important is transparency. From a set of Guidelines for the OLC that she signed, and that are reproduced as an Appendix to this article:

"OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action. Making executive branch law available to the public also adds an important voice to the development of constitutional meaning - in the courts as well as among academics, other commentators, and the public more generally - and a particularly valuable perspective on legal issues regarding which the executive branch possesses relevant expertise. There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters. OLC should consider the views regarding disclosure of the client agency that requested the advice. Ordinarily, OLC should honor a requestor's desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation. In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law. Finally, as discussed in principle 5, Presidents, and by extension OLC, bear a special responsibility to disclose publicly and explain any actions that conflict with federal statutory requirements."

In the article, Johnson elaborates on the exception to the transparency requirement:

"Policymakers should not have to fear public disclosure of their hastily conceived ideas for potentially unlawful action - that is, as long as they abide by OLC's advice. The public interest is served when government officials run proposals by OLC, and publication policy must not unduly deter the seeking of legal advice. Thus, the Guidelines state, "ordinarily, OLC should honor a requestor's desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action."

A hypothetical helps illustrate: Assume that in the immediate wake of the Oklahoma City bombing, the counsel to the President had asked OLC to consider several necessarily rough and hurried prepared proposals, among them whether the government could torture and unilaterally wiretap the leaders of right-wing militias suspected of planning future attacks, notwithstanding federal statutes apparently to the contrary. If OLC advised that the proposed actions would be unlawful and the White House followed that advice and decided not to pursue the policies, there ordinarily would be relatively little need to publicly disclose the request or the response and good reason to keep them confidential. If, however, the White House acted contrary to OLC advice or if OLC issued an opinion interpreting the relevant law to allow the torture and warrantless wiretapping, the public would have a strong interest in seeing the OLC opinion in an appropriate, timely manner."

That makes sense to me. But her general advocacy of transparency is really heartening, as is her seriousness about the need for OLC to check the President, and her commitment to the rule of law.

It's also worth noting that she is pretty scathing about many of the Bush administration's legal theories and opinions, including its account of the unitary executive and the Commander-in-Chief powers. What she says is especially striking when you take into account the rather sedate style of law review articles. E.g.:

"The Torture Opinion is an easy target for criticism, an extreme example of poor lawyering. A strong case can be made that the Opinion does not meet the professional standards that define any transactional attorney's ethical obligations in advising a client."

And:

"That the President should premise his actions on the administration's best - and not merely plausible - interpretations of the relevant law is a relatively uncontroversial principle, at least as a theoretical matter. (...) Measured by this standard, the Torture Opinion utterly fails."

Finally, I very much liked this bit:

"The proposition that the President's own legal advisors can provide an effective constraint on unlawful action understandably engenders a high degree of skepticism - especially in light of recent events. One of President Bush's legacies undoubtedly will be the deepening of Americans' cynicism about presidential adherence to the rule of law. The Bush Administration, however, also provides some evidence to the contrary, for example, in the resistance to advice given by the U.S. Department of Justice's Office of Legal Counsel (OLC) regarding torture from lawyers and other advisors elsewhere in the executive branch and later from within OLC itself. Internal checks alone, of course, are insufficient. But we debase our commitment to democracy and justice if we do not view legal advice from within the executive branch as an essential component of efforts to safeguard civil liberties, the constitutional allocation of governmental authority, and the rule of law. We invite failure if we allow our cynicism to excuse presidential abuses as simply expected - in effect relieving Presidents (and those who serve them) of their obligation to take care that the laws be faithfully executed, as the U.S. Constitution commands."

I'm very happy that the person who wrote these words will soon be responsible for carrying them out.


***

UPDATE: I omitted one very important point: Johnsen appears to believe not just that the torture memos were badly argued, but that many of the interrogation practices they licensed are in fact illegal:

"The Torture Opinion focuses exclusively on just one statutory prohibition, which could give the impression that interrogations that fall just short of the Opinion's narrow interpretation of torture are not unlawful. In fact, several other laws further prohibit coercive forms of interrogation that would fail to meet even a broad definition of torture. The soldiers who committed the Abu Ghraib abuses, for example, were subject not only to the limits of the federal anti-torture statute, but also to far more extensive restrictions contained in the Uniform Code of Military Justice (UCMJ), most notably prohibitions against cruelty, oppression, or maltreatment of a detainee. The anti-torture statute itself implements a treaty that prohibits "cruel, inhuman and degrading treatment." A final example: Common Article 3 of the Geneva Conventions goes far beyond torture and prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." At the time of the Torture Opinion's issuance, violations of Common Article 3 were punishable war crimes under federal law."


Hilzoy 3:05 PM Permalink | Trackbacks | Comments (12)

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Comments

Fingers crossed she walks the walk as she talks the talk. America might just stop being a laughingstock sooner rather than much much later.

Posted by: slappy magoo on January 5, 2009 at 3:27 PM | PERMALINK

Talk's cheap until the OLC actually DOES say no to the president. We'll never know if that happens.

Posted by: Helena Montana on January 5, 2009 at 3:34 PM | PERMALINK

This sounds great for the Obama administration, but what besides tradition will keep these practices going in future (Republican) administrations?

Isn't having the OLC as an appointment of the executive and a member of the executive a little incestuous? Shouldn't there be an external check on the legality of the president's actions?

I don't think we're going to make any drastic changes at this moment in history on this issue, our obvious chance was in 74 when Nixon was forced from office.

Posted by: mark r on January 5, 2009 at 3:38 PM | PERMALINK

Hobbling Obama?

Hilzoy: That makes sense to me. But her general advocacy of transparency is really heartening, as is her seriousness about the need for OLC to check the President...

Did you not hear that Bolton and Yoo are arguing the need to fetter the Presidency? I am not so sure it's a smart thing for Democrats to chorus with Republicans right now in regards to handcuffing the new FDR and the new economy...

In other words: I want Barack to seize as much unitary power as he dares. My fear is that he will be too timid. Truly, nothing short of a Gaia autocrat will save us going forward. We need massive investment in a solar infrastructure. MASSIVE. Seriously, the time for debate and compromise and tiddly-winks is over. This is not the time to put our President in irons. This is the time for Barack to declare war on Arab oil dependency and get something huge done...

Posted by: koreyel on January 5, 2009 at 3:39 PM | PERMALINK

Basically, it notes that neither the Courts nor the Congress adequately constrain the Executive. The Courts are limited by issues of justiciability (e.g., whether or not someone has standing), and by doctrines of deference. The Congress may not want to constrain the Executive, especially when the President and the Congressional leadership are from the same parties; besides, the Executive might keep its actions secret, or refuse to follow the plain meaning of statutes. Thus, there must be checks internal to the Executive as well. She focusses, conveniently enough, on the OLC, and writes:

"OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government."

So, basically, the One's choice for OLC agrees with "unitary executive" position with respect to restraints on Presidential authority that us conservatives have been advocating. I'm surprised that alone doesn't disqualify her in your pure liberal eyes. Are you sure that she's not a secret member of the dreaded Federalist Society? LOL

But like a true daft liberal, she thinks that a sub-office in that very same executive structure headed by a person who serves at the pleasure of the President gets to tell him "no" and be able to prevent him from acting. One question for Ms. Johnsen: Who the hell elected the OLC to tell the President he can't do something he wants with respect to national security?

I would guess that the very first time Ms. Johnsen tells the One "No", it will be the very last time that she will be asked before being replaced.

Posted by: Chicounsel on January 5, 2009 at 3:40 PM | PERMALINK

Chicounsel - She does not "agree" with the unitary executive position. She merely points out that the OLC can be abused because of limitations of Congress and courts. And yes, she could be replaced by giving unwelcome counsel, but she points out it is OLC's job to defend the law, even if it means quitting.

Of course, it is also the Congress' job to impeach a president who doesn't faitfully uphold the law - something Republicans in Congress failed to do for the last eight years.

Posted by: Danp on January 5, 2009 at 3:56 PM | PERMALINK

Chicounsel: She doesn't agree with the unitary executive theory at all, best I can tell. Did you misread "neither the Courts nor the Congress adequately constrain the Executive" to mean "neither should try to constrain them at all", as opposed to "while both can and should do what they can when the Executive oversteps, sometimes they will not have the power to succeed"?

Posted by: hilzoy on January 5, 2009 at 4:06 PM | PERMALINK

The Unitary Executive Theory states that in all relevant instances, the president cannot be constrained by anything the legislative or judicial branches say or do. Ms. Johnson has clearly stated that the president is indeed subject to the law as passed by the legislature and interpreted by the judiciary. She goes on to say that in those cases where these two branches fail in their obligations, it is the responsibility of the head of the OLC to rein in the president. That anyone can contort this to say that she supports the unitary theory that the president is all powerful leaves me shaking my head in amazement. No wonder our country is in such a mess after eight years of this kind of logic.

Posted by: Texas Aggie on January 5, 2009 at 4:36 PM | PERMALINK

Texas Aggie:

You're setting up a straw man. The Unitary Executive Theory does not state that "the president cannot be constrained by anything the legislative or judicial branches say or do." It does posit that neither branch can interfere with or diminish the executive power that is given solely to the President under Article II of the Constitution. With respect to their power as C-in-C, that is why every President from Ford and Carter onward, including the One wait and see, have claimed that laws like the War Powers Act or the FISA law are unconstitutional and reserve the right to ignore these laws if they deemed it necessary.

Hilroy:

No one has a problem standing up to a President who has "overstepped." The only problem is that you guys have been screaming that Bush has been doing so repeatedly in a whole host of areas. My guess is that you're going to be really surprised when the One concludes that Bush acted within well within his constitutional powers and has Ms. Johnsen prepare the legal reasoning and justification for the One's continuation of Bush's policies.

Looking forward to seeing you compare her to Yoo.

Danp:

True, the GOP didn't impeach when they had the majority. My question to you is why didn't Nancy and the boys do so when they took over in 06? Especally, when they believed (cough, cough) like you that Bush had committed impeachable acts. Doesn't that make their failure to do so even more reprehensible than the Republicans?

Posted by: Chicounsel on January 5, 2009 at 5:25 PM | PERMALINK

why didn't Nancy and the boys do so - Chicounsel

I wish she had. But there weren't the votes in the Senate. And there would have been zero Republicans, so it would have had the appearance of partisan politics. It was a terrible decision, in my opinion. The trial in the Senate would have been an important step in reestablishing balance of power, and rule of law.

Posted by: Danp on January 5, 2009 at 5:32 PM | PERMALINK

I take her at her word, until proven otherwise. She absolutely is no shinking violet. So I am hopefull.

As to the "Unitary Executive Theory"... It is an absolute joke that no serious constitutional scholar takes serious, and that anyone who as ever actually read the Constitution with a shred of comprehension can see. I refer all to Article I, section 8, starting with para 3:
"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

or how about para 14:
"To make rules for the government and regulation of the land and naval forces;"

To argue that the president as CinC has a free hand in foreign policy and unlimited war time powers is ludicrous on its face.

Posted by: tom p on January 6, 2009 at 12:13 PM | PERMALINK

At least on paper she sounds good. Like all the Obama picks she appears to be one of the "adults in the room". Let's hope most of them pan out.

Posted by: MarkH on January 6, 2009 at 5:03 PM | PERMALINK




 

 

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