Dispatches from the Creation Wars

Obama’s DOJ Nominees

The Obama campaign has released the names of several nominees for key positions in the Department of Justice. The most prominent is Elena Kagan, current dean of Harvard Law School, to replace Paul Clement as Solicitor General. I don’t know much about Kagan as an actual courtroom advocate, but she certainly has all the credentials as a legal scholar.

Following Clement will be a hard act to follow. He had few peers as an advocate, rivaling John Roberts in the eyes of most observers on both the right and the left as one of the finest appellate attorneys ever to appear before the high court.

The key nomination I’ve been waiting to see is Dawn Johnsen, tapped by Obama to head the Office of Legal Counsel, the DOJ agency that advises the executive branch on what is and is not legal under the constitution. I was hoping that the nomination would go to Marty Lederman, a former OLC official now teaching at Georgetown who has been highly critical of that agency during the Bush administration.

But Johnsen strikes me as an excellent candidate. She teaches law at Indiana University and seems committed to overturning the legacy of unconstitutional actions by the Bush administration, as indicated by the title of a recent article she wrote in the Boston University Law Review, What’s a President to Do? Interpreting the Constitution in the Wake of the Bush Administration’s Abuses. She also has experience at the OLC, serving as acting assistant attorney general in charge of that department in 1987-1988.

Here’s an article she wrote in Slate blasting John Yoo’s torture memos and the culture at the OLC that allowed it to be written. She minces no words, arguing that it isn’t enough to go after Yoo, but Bush must be held accountable as well:

I want to second Dahlia’s frustration with those who don’t see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it–all demand our outrage.

Yes, we’ve seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law–and not just for the remaining nine months of this administration, but for years and administrations to come.

Dahlia’s aptly summarizes this just-released memo’s constitutional conclusion: “if the president authorizes it, it isn’t illegal.”

OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. The earlier-leaked 2002 OLC torture memo said the same in connection with the CIA (a program the Bush administration sought to reassure us was extremely limited and controlled). Here, the military is the group exempt from the laws.

One striking example of the memo’s plainly flawed reasoning: In an 81-page memo, Yoo relegates to a footnote (footnote 13) and then quickly dismisses the clearly correct counter-argument that Congress may regulate interrogations under its constitutional authority to “make Rules for the Government and Regulation of the land and naval Forces.” His only support to the contrary is another still-secret OLC Bush administration memo, issued just the year before, that concluded Congress “cannot … make rules for the Armed Forces to regulate military commissions.” If Congress cannot regulate military commissions, Yoo argues, it cannot regulate interrogations. Of course, the Supreme Court in Hamdan has since held that not only does Congress have the authority to regulate military commissions, it had regulated them to render Bush’s military commissions unlawful.

John Yoo, the memo’s author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith’s harsh criticism–and withdrawal–of the memo. Not only that, Yoo attempts to spin the memo’s advice on presidential power as “near boilerplate:” “Far from inventing some novel interpretations of the Constitution, our legal advice to the President, in fact, was near boilerplate.”

I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since. I know (many of us know) Yoo’s statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC’s integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.

Far from “near boilerplate,” recall that the last President who took the view that “when the President does it that means that it is not illegal” was forced to resign in disgrace.

To be precise, President Bush has not been foolish enough himself to say “If I authorize [torture, domestic surveillance, fill in the blank], notwithstanding federal statutes to the contrary, it isn’t illegal.” At least not so that he can be directly quoted. (Actually, President Nixon didn’t say it that clearly either until after he had resigned.)

Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not.

As Dahlia points out, Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity–or for breaking the laws. In fact, the ones at Justice who didn’t last are the officials (like Goldsmith) who dared to say “no” to the President-which, by the way, is OLC’s core job description.

Far from firing anyone, President Bush asked for this kind of distorted legal advice. Remember, from day one the President sent his lawyers the express message that they were NOT to interpret the law impartially and straight up. Instead they were to further his and Vice President Cheney’s agenda of expanding presidential power, of restoring it to its pre-Watergate condition, and leaving the presidency stronger than when Bush took office. And that was before 9/11. After the terrorist attacks, “Legally, the watchword became “forward-leaning,” by which everybody meant: ‘We want to be aggressive. We want to take risks.'” (For support for all this, and more, read the excellent recent books by Jack Goldsmith and Charlie Savage.)

And in another Slate article, she called on the next president to expose all of the crimes of the Bush administration:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

I agree with Glenn Greenwald that this may be Obama’s best nominee so far. Here is video of Johnson speaking at a meeting of the American Constitution Society discussing the importance of the president being restrained by the law and the need for the Office of Legal Counsel to act as a watchdog on executive actions rather than as a rubber stamp for what the president wants to do.