Dawn Johnsen At OLC

by hilzoy

The Obama transition team has announced several new appointments at the Department of Justice: David Ogden as Deputy Attorney General; Elena Kagan as Solicitor General; Tom Perrelli as Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel. I want to focus on the last of these.

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."

Comments

[Eric Martin]

And I loved him in Miami Vice...

[Ugh]

The GOP is scalp hunting, they may miss Holder and get her. We'll see, I guess.

[woody]

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."

Well, it's purty clear t' me those Genever fellers never saw "24," or faced th' threat of a tur'rist attack by swarthy villains wantin' t' distroy 'mocracy.

[Nell]

Thanks, Hilzoy; this is heartening.

Another little hopeful bit of news to hold on to in a sea of bleak events (the assault on Gaza and coal-waste inundation in TN, to name but two).

[Gary Farber]

"Like many people, I had never heard of the Office of Legal Counsel before the Bush Administration...."

Some of us well-remember when William Rehnquist held the job for Richard Nixon 1969-71, and ruled on such matters as the legality of the invasion of Cambodia.

Like just about everything in the W. Bush administration, abuse of OLC started under Richard Nixon:

B. Rehnquist in the Office of Legal Counsel

Following his clerkship, Rehnquist next encountered the separation of powers with his appointment as Assistant Attorney General for the Office of Legal Counsel (OLC) in the Justice Department. (34) During his tenure there, Rehnquist handled several matters implicating core questions of the separation of powers. Before turning to that advice, we consider Rehnquist's conception of the role OLC played within the executive branch, as that conception itself gives us some insight into Rehnquist's understanding of the separation of powers.

1. OLC's role as an institution

At the time Rehnquist headed it, OLC was responsible for preparing the Attorney General's formal opinions, giving legal opinions to executive branch agencies and assisting the Attorney General in advising the President. (35) In the discharge of these duties, Rehnquist rejected a "European Ministry of Justice" model for the Justice Department, in which it would act as a disinterested office within the executive, exercising its own discretion independent of the administration's policy objectives. (36) Instead, Rehnquist defended the position that the Justice Department "is but one of several instrumentalities engaged in the process of administering justice." (37) That is not to say that Rehnquist countenanced the assertion of any position at all. The Department's position had to be...

I don't know if this link to the full piece via my library will work for anyone else, but it's here, and oh look who one of the two authors is -- it all comes around, as I said:

WILLIAM REHNQUIST, THE SEPARATION OF POWERS, AND THE RIDDLE OF THE SPHINX.
Authors:
Bybee, Jay S.1,2
Samahon, Tuan N.3
Source:
Stanford Law Review; Apr2006, Vol. 58 Issue 6, p1735-1762, 28p

Bruce Shapiro, it turns out, wrote about the connection in 2004, something I only just noticed, in "Rehnquist, Cambodia & Abu Ghraib."

[hilzoy]

Extra bonus: she used to be general counsel at NARAL, I think. ;)

[Gary Farber]

Shapiro's piece begins:

It is April of 1970. President Richard Nixon, frustrated with the Vietnam War, orders tens of thousands of US and South Vietnamese troops to invade neutral Cambodia. He launches his new war--and widens his bombing campaign--without consulting an outraged Congress. Demonstrations engulf campuses and cities. Aides to National Security Adviser Henry Kissinger quit in protest. And at the Justice Department, an assistant attorney general named William Rehnquist, in charge of the Office of Legal Counsel, makes a case for the legality of Nixon's new war in a white paper, "The President and the War Power."

It is half a lifetime from that spring to this one, and half a world from Cambodia to Iraq. The historical chasm abruptly collapsed, though, with the release of the memo on torture written for the White House in August 2002 by Assistant Attorney General Jay Bybee, Rehnquist's latter-day successor at the Office of Legal Counsel. What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration's interrogation policy.

We can't escape Nixonland.

More:

[...] t is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion: "By crossing the Cambodian border to attack sanctuaries used by the the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the "necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was "necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to "something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to "the sort of tactical decision traditionally confided to the commander in chief."

And the legal opinion came from OLC.

[Gary Farber]

Oh, yes, and this one last quote:

[...] The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

[Ugh]

We can't escape Nixonland.

I read that in October and was stunned at how many of Nixon's tactics are part and parcel of the GOP's election strategy today, especially heavy reliance on hating the other.

[Ugh]

And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

What I really don't understand about all this is why? Do they really think it's a good thing for the President to have to powers of a tyrant? And these are "conservatives" who profess to be horrified at the thought of "I'm from the government and I'm here to help."?? I guess they prefer "I'm from the government and I'm here to destroy your life."

[Gary Farber]

"What I really don't understand about all this is why? Do they really think it's a good thing for the President to have to powers of a tyrant?"

My answer is that it's entirely simple: these were the guys in charge under Richard Nixon, who learned the game and the rules and What Should Be, under Richard Nixon.

So, yes, when their boss, and they, are in charge, the president should have the powers of a tyrant over the wimpy and probably oppositional Congress.

"When the president does it, it isn't illegal."

It was all right there. And these are Nixon's Men.

And they were still in charge under Gerald Ford, and again in charge under Ronald Reagan, and under George H. W. Bush, and again under George W. Bush. For their adult lifetimes, they, and their executive Republicans have Been In Charge most of the time; the exceptions were abberations that should never have happened, in their view.

Really.

That's the natural order of things as they see it, so, yes, the President, who should be a Republican, who will appoint them, and their heirs (employees below them in the past eight years), should be a tyrant with the trappings of democracy.

From the sidebar of my blog since 2002:

"Augustus was sensible that mankind is governed by names; nor was he deceived in his expectation, that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedom."
-- Edward Gibbon

[Nell]

Bybee should be impeached.

It's not enough just for his successor to be committed to the rule of law and a less authoritarian concept of the OLC. That's nice, but is no structural solution.

Bybee, and Rehnquist before him, perverted the OLC to serve an elected-dictatorship model of the U.S. presidency. They should pay for their actions. Instead, they've been elevated to the highest courts. That has to stop, and Bybee needs to be stripped of a position for which he has shown he is not qualified.

Unlimited executive power "legalized" by get-out-of-jail-free OLC opinions is not a policy difference: it is a criminal perversion of the U.S. constitution.

[Gary Farber]

"...the President, who should be a Republican...."

In fairness, that's the "right sort" of Republican. It's not as if they'd be pleased with President Susan Collins, or as if President Colin Powell, or President Lincoln Chafee, would be satisfactory.

Now, President Sarah Palin, on the other paw....

[Gary Farber]

In case anyone is unaware, Nell is referring to the fact that Jay Bybee is currently on the United States Court of Appeals for the Ninth Circuit.

[gwangung]

That's the natural order of things as they see it, so, yes, the President, who should be a Republican, who will appoint them, and their heirs (employees below them in the past eight years), should be a tyrant with the trappings of democracy.

Judging by some of the...noisier...lights on the Right, they've succeeded in passing on this ideological poison to a new generation...

[Gary Farber]

And Bybee offered these infamous words:

[...] Among other things, the memo concluded that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." It also concluded that for purely mental pain to constitute torture it "must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

In case it isn't clear, I couldn't agree more strongly with Nell.

[Anon NYC]

Johnsen's article can be found in a nicely readable PDF form here:

http://www.uclalawreview.org/articles/archives/?view=54/6/1-3

Just click the little PDF icon to the right of the title.

[bedtimeforbonzo]

"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 . . ."

So, I guess we can rightfully anticipate the appropriate prosecutions to begin soon after Jan. 20.

And if not, why?

[Observer]

Hilzoy:

OLC's key function is to restrain the executive; frankly, in the current administration, I don't expect that to be as vital.

The appointment that really excites me is Kagan. I think it's fairly clear that she's being groomed for the first SCOTUS vacancy. That's probably going to be Ruth Bader Ginsburg, and her replacement will have to be a woman. The problem with Kagan is that her nomination to the DC Circuit got blocked during a spat between the GOP and Clinton, and she's never even argued a case before the Supreme Court.

Generally, nominees need experience on the federal bench. Working as Solicitor General is the other accepted path. It's not without awkwardness, as it requires a lot of recusals in the first few years of the appointment. But with SCOTUS, you play for the long term. And we can't do much better than Kagan.

[Sabina's Hat]

Greenwald is also very positive about the Johnsen appointment and cites a couple of her blog [yeah!] postings over at Slate that are extremely encouraging regarding both torture and executive power abuses.

[Gary Farber]

More on Dawn Johnsen.