As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Monday, January 05, 2009

A New Day At The OLC

About a year or so ago, the local ACLU chapter had Pulitzer prize-winner Charlie Savage in for a chat, and much of the discussion centered on the Office of Legal Counsel (OLC), which he called "the Supreme Court for the executive branch." Essentially, a favorable OLC opinion can justify virtually any abuse of the system by the executive, and because it's pretty much a secret office, nobody understands the legal ramifications unless and until the executive branch is challenged on their reading of the law. The OLC is the provenance of the worst abuses of the Bush Administration, including memos justifying torture and warrantless wiretapping. Therefore, seeing that Dawn Johnsen, a powerful advocate for the rule of law, will be heading up that body is extremely encouraging news for anyone who believes the Obama Administration will represent a break from prior practice and the expanding of the Presidency through unitary executive theories. Johnsen is a professor at Indiana University, but her public writings are what give civil liberties hope. The starkness of the language, the ANGER with what the Bush regime has done to justice, is what sticks out in this Slate article Johnsen authored:

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.

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. . . .

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" . . .

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. . . .

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. . . .

The correct response to all this? Marty has several good suggestions to start. And outrage. Directed where it belongs: at President Bush, as well as his lawyers.

As Glenn Greenwald notes, this is not the language of the Village, and it is much to Johnsen's credit to play this out in public.

I don't know all that much about her, but anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor, stating the OLC's "core job description" is to "say 'no' to the President," all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come" -- and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters -- is someone whose appointment to such an important post is almost certainly a positive sign. No praise is due Obama until he actually does things that merit praise, but it's hard not to consider this encouraging.

Tim Fernholz likes the other sub-cabinet choices made today as well. And if you add in Leon Panetta, who has explicitly argued against torture, at CIA, you have the makings of a Presidency more dedicated to upholding the rule of law than trashing it. Very good news indeed.

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