Dawn Johnsen Has GOP Hard Liners Quaking in Their Boots. Is She the Wyatt Earp Who Could Bring Justice to Bush Era Outlaws?

A BUZZFLASH NEWS ANALYSIS
by Christine Bowman

Texas Sen. John Cornyn and other GOP hard liners would like to block President Obama's nominee to head the OLC. Just what is it that has them so scared?

As Neil A. Lewis commented in The New York Times Tuesday, "Although the parties have changed places, the nomination wars continue." Among those caught in the partisan fray of Senate confirmation hearings is President Obama's choice to head the Office of Legal Counsel in the Department of Justice, Dawn E. Johnsen. GOP senators have delayed the floor vote on her nomination and are said to be considering a filibuster to block her appointment.

Opposition to Johnsen's appointment is grounded in part in standard ideological and policy differences between Republican and Democratic administrations. Because Johnsen served as legal director to the National Abortion and Reproductive Rights Action League (NARAL) twenty years ago, opponents of abortion and reproductive choice have lined up to block her confirmation. But there's much more.

Johnsen is the antithesis of George W. Bush's OLC appointees such as John Yoo and Jay Bybee, which is what really has some folks worried. Again, quoting Neil A. Lewis:

Ms. Johnsen, a law professor at Indiana University, was an unsparing critic of memorandums, written by lawyers at the Office of Legal Counsel in the Bush administration, that said the president could largely ignore international treaties and Congress in fighting terrorists ...

The [Bush Administration OLC's] broad reading of presidential authority was “outlandish,” and the constitutional arguments were “shockingly flawed,” Ms. Johnsen has written.

In other words, the Johnsen nomination reminds worried senators that accountability for Bush administration activities could be lurking ahead, and Johnsen personifies that dreaded possibility. The NY Times editorial makes this crystal clear by describing the function and recent history of the OLC and spelling out why the GOP would worry no matter who the nominees to the department might be:

In the Bush administration, the Office of Legal Counsel gave a green light to many objectionable policies, from a lawless expansion of executive power to the use of torture. ...

The Office of Legal Counsel is little known to the public, but it plays an important role in guiding national policy. As the legal adviser to the executive branch, it informs the White House and the agencies about what the law requires — and what it prohibits. The office was thrust into the limelight a few years ago when word leaked out of an O.L.C. torture memo that cleared the way for horrific forms of interrogation.

... Republican senators’ ... main complaint seems to be [Johnsen's] opposition to torture and to extreme views on presidential power.

At thechattahbox.com, the analysis is less circumspect:

... Johnsen has been publicly critical of Bush’s staffing the Justice Department with ideologues, who subverted the rule of law for political gains. She signed on to a statement of 19 former OLC lawyers, decrying Bush’s abuses and politicizing of the office. Johnsen doesn’t support torture or John Yoo’s use of his former office to provide Bush with a legal torture memo. As a result, Republicans have accused Johnsen of not supporting the fight against terrorism.

David Latt writing at Huffington Post concurs but goes further. He quotes Johnsen's own commentary at Slate.com and urges that she should be confirmed precisely because she takes the law more seriously than her predecessors did:

 ... Ms. Johnsen had criticized the memos of Bush Administration lawyers like John C. Yoo, William J. Haynes II, Jay S. Bybee, and David S. Addington who argued after 9-11 that the President could abrogate laws regarding torture and ignore international treaties he disagreed with.

[quoting Johnsen, now] ... 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... OLC [Office of Legal Counsel], 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.

It is because she was such an articulate defender of the law that she should take charge of the very office that Mr. Yoo and Mr. Bybee had undermined.

Scott Horton writing at "The Daily Beast" puts it more bluntly still. He calls Dawn Johnsen "The Woman Who Could Nail Bush."

Until recently, the Justice Department’s Office of Legal Counsel, often considered the “brains” of the department, has been known mostly to legal experts. But for the past eight years, it was the epicenter of allegations of political manipulation and, worse, the source of infamous memoranda on torture. In tapping Eric Holder as attorney general, President Obama has promised to restore standards of professionalism to the department. For Republicans, this is tantamount to a declaration of partisan war.

... The real reason for their vehement opposition is that Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years.

Johnsen's objective credentials leave little room for criticism or, certainly, a GOP-led filibuster. Currently a professor of law at Indiana University, she served in the OLC for five years including taking the reins as acting chief. She also served as US Acting Attorney General and US Deputy Assistant Attorney General; graduated summa cum laude from Yale Law School; and was an editor of the Yale Law Journal. Her academic expertise is in issues of separation of powers and civil liberties.

For further analysis on other prospective Obama administration legal voices, BuzzFlash recommends reading in its entirety Scott Horton's The Woman Who Could Nail Bush at The Daily Beast.

^{Photo Credit: Ruth Fremson, The New York Times / Redux}

 A BUZZFLASH NEWS ANALYSIS

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