Dems Get Cloture On Harold Koh

About damn time. There was literally no reason not to confirm him. Republicans are threatening to take all 30 hours of floor time to "debate" his confirmation. Obstructionist whiners.

Dawn Johnsen's next.

Dawn Johnsen A Pawn In The Student Loan Privatization Game?

We now have a clear picture of why Dawn Johnsen has not been confirmed to head up the Obama Administration's Office of Legal Counsel. Key legal questions on Administration policies are being left unchallenged by a true civil libertarian because a couple Democrats refuse to allow an up or down vote.

Here are the numbers as they stand right now:

Votes Against Johnsen: 37 Republicans

Votes for Johnsen: 57 Democrats plus Indiana Republican Richard Lugar

Undecideds: Republicans Olypmia Snowe and Susan Collins and Democrats Arlen Specter and Ben Nelson

Reid frames the issue by saying he needs a couple Republicans to cross the line before he has the 60 votes necessary to overcome a filibuster. But as the numbers show, it's just as much an issue of Reid not being able to muster the entire Democratic caucus in support of Johnsen.

Specter has been noncommital on whether he would vote for cloture. But Ben Nelson is basically opposed entirely and that's holding the whole thing up. During the Bush years, Nelson very willingly supported almost all of Bush's most controversial judicial and executive branch appointments, while fighting harder against the President of his own party. I agree with Christy Hardin Smith that Nelson is fishing:

And the latest from Nelson's press secretary? Johnsen worked for NARAL.

No. You are kidding me --a pro-choice president in a pro-choice country nominated a pro-choice attorney to an office where she won't even be dealing with abortion issues. And that's objectionable.

It's a mystery.

And then? I did a little digging. I think Ben Nelson is fishing:

Nelson is perhaps the Senate's fiercest protector of subsidies for student lending institutions, which, not coincidentally, are an engine of job growth in Nebraska. He has vowed to block any effort to reduce those subsidies. And given that Democrats have 58 members and generally need 60 to break a GOP filibuster, he can enforce his will on his colleagues....Multiple congressional sources say that congressional Democrats have decided to use reconciliation to go after student-lending subsidies, specifically to get around Nelson.

Nelson is holding up Obama Administration appointments so he can save his student loan middleman and increase the burden on students. Now that's cynical.

But as Christy notes, there's a way around this, especially for a popular President. Yes, Reid could just wait for the extra vote of Al Franken and make Nelson, at least in this case, irrelevant. But the President could also loudly suggest to the people of Nebraska that their Senator is vindictively withholding the ability of his White House to do their job because Ben Nelson wants to punish students some more. And that might generate some opposition inside Nebraska, particularly the Omaha area where Obama WON. Unless we are to conclude that Obama would rather not waste political capital on having a strong civil liberties voice at the Office of Legal Counsel.

Now They Want Sebelius

Looks like we may have a Health and Human Services Secretary by tomorrow, just in time to get started in the middle of a flu outbreak and fears of a pandemic. Funny how the GOP finally agreed to end the obstruction right at this time, ay?

On the flip side of this, I agree with Brian Beutler that the continued obstruction of Dawn Johnsen is troubling.

In fact, Dawn Johnsen's nomination to head the Justice Department's Office of Legal Counsel seems to be, if anything, in more trouble than does Sebelius'. There have been rumors of a Johnsen filibuster for weeks now, and outside groups, both pro-confirmation and anti, have been lobbying Congress as the process has all-but-ground to a halt. (Just today, the groups People For the American Way, Alliance for Justice, National Women's Law Center, and NARAL Pro-Choice America hosted a conference call for reporters during which former OLC-chiefs Walter Dellinger (who served under Clinton) and Douglas Kmiec (who served under Reagan and George H.W. Bush), along with Johnsen's Indiana University colleague Aviva Orenstein, made the case for a quick confirmation.)

Now, keep in mind that Sebelius will be a cabinet-level official while Johnsen will not, and in that sense it's plausible that Democrats have prioritized a vote on Sebelius' nomination in order to make Obama's cabinet whole. But it's also plausible that Senate Majority Leader Harry Reid (R-NV) isn't as sure he can clear the cloture hurdle if the question on the floor is on the confirmation of Dawn Johnsen. More on the apparent disparity as I learn it.

Especially given the release of the OLC memos justifying torture and the display of how important that office is to upholding the rule of law, we need Johnsen in that seat now more than ever.

...Sebelius will still need 60 votes, by the way, though it appears safe that she can get them.

They're Smearing Dawn Johnsen

Sen. Specter is whacking off on the Senate floor about some bills of his on limiting executive power. And yet he refuses to move forward on confirming a Justice Department nominee who would be the leading critic inside the executive branch on executive power, and with the power to limit it besides.

President Barack Obama's nomination of an Indiana University law professor to head the Justice Department's Office of Legal Counsel is meeting stiff resistance in the Senate, stalled for a month by Republicans who say she's a polarizing figure because she aggressively criticized the Bush administration's legal rationale on torturing terrorism suspects and radical in her views on abortion rights.

Dawn Johnsen's nomination made it through the Senate Judiciary Committee on a party-line vote, but the Senate's Democratic leadership has yet to schedule a final floor vote on her confirmation.

"I think she's in real trouble," said Sen. George Voinovich, R-Ohio. "From what I'm picking up from consensus, she's got a problem." [...]

Senior Senate aides say there is no single senator holding up Johnsen's nomination. But they acknowledge that efforts to bring her up for a vote now would likely be blocked procedurally.

Johnsen and her supporters are trying to change that. She's met with Sen. Arlen Specter of Pennsylvania, the Senate Judiciary Committee's ranking Republican. Specter passed on voting for or against moving her nomination out of committee. He said Wednesday that he hasn't decided yet how he would vote if her nomination goes to the floor.

Sheldon Whitehouse, Dawn Johnsen's greatest defender, says he'll be ready if conservatives try to move on a filibuster. But it's people like Specter, claiming to be concerned about executive power while opposing the woman who would be his biggest ally in that fight, that kills me.

Christy Hardin Smith sums up the conservative smear job on Johnsen:

What's Cornyn's real beef -- and that of the GOP establishment? That Dawn supports the rule of law. That she takes the job and her responsibilities in it seriously, meaning that she isn't the sort of person who puts shortcuts and shading to further personal ambitions ahead of doing the right thing and following the written precedents.

In other words, unlike some people, Dawn isn't the kind of gal who can be bought off or shut up. And Cornyn no likey that. This is all about GOP CYA and the kabuki to cover it.

Why is OLC important? I'll let ACS' Peter Shane explain:

Perhaps the most important reason we have government lawyers is to “take care that the laws be faithfully executed” even when laws are ambiguous and especially when no one is looking. If the rule of law is to have any meaning, government lawyers playing an advisory function must take a relatively objective stance....It is critical that government lawyers remember that their “client” is the American people, and not the ephemeral roster of incumbent federal officer holders.

There it is in a nutshell: putting the public interest ahead of political kabuki. Hence the fear and stall tactics from Cornyn and company:

The pressure to kill the Johnsen nomination may become even stronger now that President Obama has released more OLC memos detailing the CIA’s abusive interrogation tactics last week.

Let's not let them get away with it. The stakes are too high.

I don't know that this is even about Johnsen. The GOP just wants a victory.

Christy has a list of Senators you can call about this. Please do so.

Why Dawn Johnsen Is Important

Here's yet another civil liberties issue where the Obama Administration has decided to mirror the Bush Administration in order to defend their practices.

The Obama administration yesterday appealed a judge's decision granting three detainees at a U.S. military prison in Afghanistan the right to challenge their detention in U.S. courts, arguing partly that compliance would inhibit the future capture of Pakistani citizens for detention by U.S. forces in Afghanistan.

The appeal makes clear that, despite the ruling this month by U.S. District Judge John D. Bates, the Obama administration for now wants to stick with a policy set by President George W. Bush that those incarcerated by U.S. troops in foreign prisons have no U.S. legal rights. But officials said that did not foreclose a change of heart after the completion in July of a comprehensive review of detainee policy.

"While that review is pending, we concluded that it was necessary to appeal this ruling," said Justice Department spokesman Dean Boyd. Otherwise, he said, the detainees would immediately have access to U.S. courts, which the administration has long said would impose large burdens on its military forces in the region.

That's really not the issue at all, and the Obama lawyers are making rash assumptions to maintain untrammeled power. The judge's ruling applied to non-Afghans who were captured in areas completely separate from the Afghan conflict, who ought to have the right to habeas corpus proceedings to challenge their detentions in court. The lawyers let their slip show just a couple paragraphs later, explaining that the American system of justice is simply too taxing.

Holding such proceedings would force the military to reveal details about the "the place of capture" and the "identity of U.S. or foreign forces or entities" that conducted the operation, the appeal said. It added that keeping records on such matters and litigating the cases would divert U.S. forces from their counterterrorism missions.

Following the law would divert their attention, so, stuff it.

Glenn Greenwald has lots more on this, as you would expect, including the powerful use of then-candidate Obama's words against him - in talking about the Supreme Court's decision in Boumediene, which allowed habeas rights for all prisoners at Guantanamo, Obama said:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

He's essentially turned his back on that argument now, considering that Bagram and Guantanamo are no different when it comes to the subjects who were picked up around the world and flown far away to these prisons without formal charges made.

One thing he does not address is the importance of a strong, independent voice at the Office of Legal Counsel. As I understand it the OLC is the Supreme Court inside the executive branch. The decisions that the executive wants to make get checked by the legal opinions coming out of OLC. Now, in the Bush Administration those opinions were manufactured by the likes of John Yoo and Jay Bybee to achieve a desired result. By all accounts, Dawn Johnsen is quite different, and she has repeatedly gone on record against the use of state secrets and other deprivations of the Bush Administration. But she is not yet in office, with her confirmation being held up in the Senate. What exactly does this mean? Is there any review process going on inside DoJ? Is the acting OLC chief a Bush-era retread or someone without strong opinions on the issues, getting rolled by Eric Holder and the desires of the President to defend Bush policies? We don't know, as all of that happens outside the public eye. But this certainly does argue for Johnsen to be quickly confirmed, to at least see if the decisions change once an independent voice committed to civil liberties protections and the rule of law has at least some power to dictate what the executive can and cannot do.

...just to update, I sought some clarification here, and OLC wouldn't necessarily have input on every single DoJ decision. It is unclear whether the decision on Bagram would fall under the purview of OLC at all. And the Attorney General can choose to override the OLC, in any case. I still think Johnsen's absence isn't exactly helping matters, and progressives shouldn't be silent in arguing for her confirmation, particularly because the opposition is being led by the conservative smear machine. But it's hard to speculate whether or not her presence would be helpful in this specific case.

Republicans Engage In Another Stick-Up?

Yesterday I wrote about John Brennan's efforts to conceal additional classified memos from the Bush Administration from the Office of Legal Counsel, offering their authorization and direction of specific techniques of brutal treatment and torture. Today Scott Horton claims that the issue is more one of blackmail:

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward [...]

The release of the memos that the Senate Republicans want to suppress was cleared by Attorney General Eric Holder and White House counsel Greg Craig, and then was stopped when “all hell broke loose” inside the Obama administration, according to an article by Newsweek reporter Michael Isikoff. Newsweek attributes internal opposition to disclosure of the Bush-era torture memos to White House counterterrorism adviser and former CIA official John O. Brennan, who has raised arguments that exposure of the memoranda would run afoul of policies protecting the secrecy of agency techniques and has also argued that the memos would embarrass nations like Morocco, Jordan, Pakistan, Tunisia and Egypt, which have cooperated closely with the CIA in its extraordinary renditions program. Few informed independent observers, however, find much to credit in the Brennan objections because the techniques are now well-known, as is the role of the cooperating foreign intelligence services—any references to which would in any event likely be redacted before the memoranda are released. Moreover, the argument that the confidence of those engaged in torture—serious criminal conduct under international and domestic law—should be kept because they would be “embarrassed” if it were to come out borders on comic.

The Justice Department source confirms to me that Brennan has consistently opposed making public the torture memos—and any other details about the operations of the extraordinary renditions program—but this source suggests that concern about the G.O.P.’s roadblock in the confirmation process is the principle reason that the memos were not released. Republican senators have expressed strong reservations about their promised exposure, expressing alarm that a critique of the memos by Justice’s ethics office (Office of Professional Responsibility) will also be released. “There was no ‘direct’ threat,” said the source, “but the message was communicated clearly—if the OLC and OPR memoranda are released to the public, there will be war.” This is understood as a threat to filibuster the nominations of Johnsen and Koh. Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama’s legal policy team.

This is really an appalling situation, showing you just how far Republicans will go to protect their own criminal activities. Harold Koh and Dawn Johnsen are respected legal scholars - Koh even garnered the support of Bush's solicitor general Ted Olson. Conditioning their entry into the Administration on official secrecy makes a mockery of the whole concept of advise and consent.

First, the President has traditionally been given deference in the choice of his advisors. If some President wants to have someone in his cabinet, the presumption is that he ought to be able to do so, absent illegality or some sort of manifest incompetence. For the Republican Senators to hold these appointees up not for those reasons, but because they disagree with their policies, is just wrong; if this happened every time a new administration came into office, the opposition party would filibuster half the nominations and no one would never govern at all.

Second, what the Republicans are trying to do is to dictate to the President a matter that is purely his prerogative: deciding whether or not to unclassify documents. This is insane: it's as though Obama threatened to withhold funding for the Senate unless Mitch McConnell fired some staffer he didn't like.

And the combination -- holding appointments hostage while trashing people's reputations in order to keep Obama from making a decision he plainly has the right to make -- is unconscionable.

I am not, in general, a big fan of saying: Republicans: you lost. Get over it. But in this case, I'm going to make an exception. The Republicans do not seem to be willing to allow the President to do things that are plainly his prerogative: appointing the reasonable, qualified, law-abiding people of his choice, deciding which documents should be declassified, and so forth. Any moment now they'll threaten not to pass the budget unless he sets his air conditioner at their preferred temperature.

Glenn Greenwald doesn't seem to buy the claim of Republican blackmail, but agrees that there is no possible excuse for concealing these memos. These memos comprise secret laws agreed to by our government, under cover of darkness, which had wide-ranging impacts on American policy. No vote was scheduled, no disclosure made to the people, indeed no accountability whatsoever came as a result of this law. And of course, it violated international law and treaties to which America is a signatory. There cannot be any reason to continue this practice beyond a cover-up.

I would hope that, before believing this excuse for non-disclosure, everyone would first demand proof that this claim of GOP threats is true -- namely, I'd like to see evidence that the GOP Senate caucus is really prepared to unify in a filibuster of Obama nominees in order to keep these torture memos concealed. But even if it is true, it's entirely irrelevant. Politically, that's a fight the Obama administration -- if it even remotely believes in all the things it has been saying about transparency -- should be prepared to wage. But beyond the political considerations, the government simply has no right to keep things secret in order to avoid political embarrassment or conflict, and Obama's top OLC officials themselves spent the last five years arguing exactly that.

The only conceivable reason for wanting to keep these memos secret is to avoid the deep and justifiable embarrassment the U.S. will feel upon placing before the world documents that explicitly authorized war crimes at the highest levels of our government, and thereby avoid what will inevitably be the increasing political pressure -- domestic and international -- to investigate and prosecute the war criminals. Those who authorized these tactics knew full well that what they were doing was wrong.

At this point, I would certainly like to hear from every Republican Senator, to get them on the record about this. Do they believe Johnsen and Koh should be filibustered? Do the "Gang of 14" who acted to save the filibuster for judicial nominations believe the same thing? Once we have a full whip count, we can properly judge the reasons why the Obama Administration has delayed disclosure of these crucial memos.

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.