The Senate Judiciary Committee will “most likely” vote Thursday on whether to resend Dawn Johnsen, the nominee to head the Office of Legal Counsel, to the Senate floor, according to a senior Senate staffer.
President Obama initially nominated Johnsen last February to head the OLC, which gained notoriety under President George W. Bush for generating the “torture memos,” in which Bush administration lawyers developed legal arguments to circumvent international and domestic law against the mistreatment and torture of detainees.
Johnsen made it through committee on a party line vote last March, but her nomination stalled on the Senate floor. Following Senate procedure, it was sent back to the president on Christmas Eve. She currently works as a law professor at Indiana University-Bloomington and is teaching this semester.
Republican senators and a few Democrats, including Arlen Specter (D-Pennsylvania) and Ben Nelson (D-Nebraska), raised questions about Johnsen’s positions on abortion and national security. Specter has since agreed to support Johnsen’s nomination under public pressure from a Democratic challenger for his seat, Rep. Joe Sestak (D-Pennsylvania).
With the support of one Republican, Sen. Richard Lugar (R-Indiana) – who “still plans to vote for her,” according to Lugar’s press secretary Andy Fisher – Johnsen looked like a lock for the nomination. But with the election of Scott Brown (R-Massachusetts), she appears to have lost the crucial vote needed to overcome a Republican filibuster.
When reached by email, Johnsen said, “I’ve been asked to decline requests for interviews pending my confirmation.”
Supporters say Johnsen, if nominated, will bring a renewed focus on human rights to the OLC, which acts as a legal adviser to the president and the executive branch.
“What is missing in Obama’s inner circle are any prominent voices in favor of civil liberties,” said Jonathan Turley, a liberal law professor at George Washington University and an expert on homeland security and constitutional law. “She would help bring greater balance.”
Specifically, Turley said Johnsen would provide a crucial “counter” voice in the Justice Department to Attorney General Eric Holder. Under Holder’s leadership, the Justice Department has shown an unwillingness to investigate and prosecute accusations of misconduct by Bush administration officials and officials in the intelligence community, including CIA operatives who used legal memos as justifications for torturing detainees.
“[Holder] is not known to fight on principle when the political costs could be great,” Turley said, pointing to the Justice Department’s decision not to investigate accusations of war crimes committed by Bush administration officials, and its recent decision not to take legal action against John Yoo and former OLC head Jay Bybee – the authors of many of the “torture memos.”
During the Bush administration, Johnsen spoke out against what she viewed as the abuse of the office’s power. In an editorial for Slate Magazine on the so-called “torture memo,” Johnsen wrote, “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.”
Supporters say that Johnson’s nomination would prompt a sea change in the way the office is run.
“The OLC is supposed to give guidance on how to follow the law, not on how to avoid it,” said Scott Horton, a human rights lawyer and author who frequently writes about legal affairs. “Johnsen would restore the office to its proper role.”
Johnsen worked for the OLC for five years under the Clinton administration, first as deputy assistant attorney general – the same post John Yoo held – and then as acting assistant attorney general in charge of the OLC from 1997-1998.
Republicans, though, have focused on her time at the National Abortion & Reproductive Rights Action League (NARAL), a pro-choice lobbying organization, where Johnsen worked during the late 80s and early 90s.
In particular, she came under fire by Senator Specter during her confirmation hearing for a footnote in a friend-of-the-court brief she filed 20 years ago on behalf of NARAL, in which she compared laws that attempt to limit abortion to “involuntary servitude.”
Johnsen pointed out that the OLC’s mission is not to advocate particular legal positions, but to provide impartial examinations of the law. Experts say the exchange over an obscure footnote highlights a fundamental problem with the nomination process.
“It tends to deter anyone who has had a single creative thought or writing,” Turley said.
In her own words, Johnsen has argued strongly against past misconduct and for a renewed commitment to government accountability. “We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power,” she wrote.
“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 … for years and administrations to come.”
Others said reluctance by the White House to come out in full support of Johnsen’s nomination was the reason she was not confirmed in the first place.
“The Obama Administration is a lesson in perfectly absurd timidity,” Horton said. “The Bush Administration used all kinds of tactics to push their nominees through. Their approaches could not be more different.”
Horton stressed the increasing importance of the OLC, and its profound role in the Bush administration. For former Vice President Dick Cheney, “the real key to exercising control over national security was not to control appointees to high-level public policy positions, but to have them in important second- and third-tier positions: the National Security Council, the Office of the Secretary of Defense, and the OLC,” he said.
The OLC, in turn, helped to craft legal justifications for torture and mistreatment of detainees, and “[Cheney] went to them for opinions that would make anything he wanted legal,” he said. “They were essentially issuing ‘Get Out of Jail Free’ cards.”