.
Okay, after all the Rahm Clinton Daschle Gates Geithner Horror, here's someone who sounds like an excellent appointment: Dawn Johnsen. She replaces the Bush regime member likeliest to be the first convicted for crimes against humanity, John Yoo.
http://www.mcclatchydc.com/227/v-print/story/59012.html
McClatchy Washington Bureau
Posted on Mon, Jan. 05, 2009
Obama's Justice nominees signal end of Bush terror tactics
Greg Gordon | McClatchy Newspapers
last updated: January 06, 2009 10:40:28 AM
WASHINGTON — In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.
The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers.
Johnsen, who spent five years in the Office of Legal Counsel during the Clinton administration and served as its acting chief, has publicly assailed "Bush's corruption of our American ideals." Upon the release last spring of a secret Office of Legal Counsel memo that backed tactics approaching torture for interrogations of terrorism suspects, she excoriated the unit's lawyers for encouraging "horrific acts" and for advising Bush "that in fighting the war on terror, he is not bound by the laws Congress has enacted."
"One of the refreshing things about Dawn Johnsen's appointment is that she's almost a 180-degree shift from John Yoo and David Addington and (Vice President) Dick Cheney," said Harvard University law professor Laurence Tribe, referring to the main legal architects of the administration's approval of harsh interrogation tactics.
Walter Dellinger, a Duke University law professor, said that Johnsen's appointment "sends a very strong message that the administration intends to make sure that its power is exercised in conformity with constitutional rights and respect for civil liberties."
Obama also said that he'd nominate:
_ David Ogden, a top Justice Department official during the Clinton administration, as deputy attorney general, the No. 2 figure under attorney general nominee Eric Holder.
_ Elena Kagan, the dean of the Harvard University Law School and a former Clinton White House aide, as solicitor general. She'd be the first woman to hold the post.
_ Tom Perrelli, counsel to Clinton Attorney General Janet Reno from 1997 to 1999, as the associate attorney general who oversees civil matters.
Obama said that he hoped that the four appointees would restore "integrity, depth of experience and tenacity" to the lead federal law-enforcement agency, which has been battered by scandal.
"This is a superb set of appointments," said Dellinger, who headed the Office of Legal Counsel from 1993-96 and then served as U.S. solicitor general. "These four are highly accomplished in the profession and bring a stature to the job that will allow them to say no to the president when no is the correct answer."
While Obama fleshed out his Justice Department team, Democratic officials said that he'll name former Democratic congressman and Clinton White House chief of staff Leon Panetta to head the CIA, tapping a figure who once oversaw the secret budgets of spy agencies but lacks hands-on intelligence experience.
The Justice Department has yet to fully regain its image of independence since allegations of political influence mired the agency in scandal in 2007, leading to the resignations of Attorney General Alberto Gonzales and about a dozen other department and White House officials.
Congress still is seeking records related to allegations that nine U.S. attorneys were fired for political reasons, senior department employees skewed career hiring to favor Republican applicants and politics influenced the enforcement of voting-rights laws.
"It's clear that the Department of Justice has been savaged by the Bush administration and has been profoundly disgraced," Tribe said. "It's going to be a major task to rehabilitate it."
The task will be complicated, Tribe said, partly because Republican lawyers have been embedded in career jobs, and "a number of them will have to be reassigned to responsibilities and places where their ideological single-mindedness" doesn't interfere with their duties.
Obama's picks contrast with Bush's selection of Gonzales, who lacked Justice Department experience. Since stepping down as attorney general in September 2007, Gonzales has yet to find a job.
Without referencing Gonzales, Dellinger said that Obama's four picks are "great lawyers who have terrific jobs they can go back to and the strength to be a strong, independent voice for the law. They are not people who will be easily pushed around."
Erwin Chemerinsky, dean of the University of California-Irvine law school, praised them as "highly professional, experienced lawyers who are not partisans."
Ogden, a partner at the law firm of Wilmer Cutler Pickering Hale and Dorr, served as chief of the Justice Department's Civil Division from 1999 to 2001. He's led the Obama transition team's Justice Department review.
Kagan, the Solicitor General designate, lacks Supreme Court experience, but served as a Clinton White House adviser from 1995 to 1999 and has headed the Harvard Law School since 2003. Tribe hailed her as "the greatest dean I'd ever seen or imagined," and Chemerinsky said she "is held in incredibly high esteem across the spectrum.''
Perrelli, managing partner of the Washington office of the Chicago-based law firm of Jenner & Block, served for four years in the Clinton Justice Department, finishing as a deputy assistant attorney general in the Civil Division.
Johnsen, whom Dellinger hired to the Office of Legal Counsel, served in the unit for five years. During the presidential primaries, she joined Hillary Clinton's campaign in Indiana.
(Jonathan S. Landay contributed to this article.)
ON THE WEB
Testimony of Dawn Johnsen before the U.S. Senate Committee on the Judiciary Subcommittee on the Constitution
"Outrage at the Latest OLC Torture Memo," by Johnsen
McClatchy Newspapers 2008
In the best endorsement I can imagine, the WSJ editor-commandos are preparing Johnsen for the Zoey Baird treatment.
http://online.wsj.com/article/SB1231548 ... 08_mostpopJANUARY 10, 2009
President Gulliver's Lawyer
A nominee who wants to tie down the executive branch.
Barack Obama's cabinet choices are understandably getting most media attention, but everyone knows policy is also made by the sub-cabinet. So we think more public scrutiny should be drawn to Mr. Obama's choice of Dawn Johnsen to lead one of the executive branch's most important legal offices. Her appointment makes sense for a President Gulliver, but not for a Commander in Chief fighting terrorists.
Ms. Johnsen became famous in the left-wing blogosphere as an especially arch critic of the Bush Administration's war on terror. As an Indiana University law professor, she took to the Web with such lawyerly analysis as "rogue," "lawless," "outrage," and that's the mild stuff. Now she's been nominated to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch.
One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been "strangled by law," to quote Jack Goldsmith, a former Bush OLC chief.
Yet Ms. Johnsen seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes. She has written that "an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch." And in touting her qualifications, the Obama transition cited her recent law review articles "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."
In other words, Mr. Obama has nominated as his main executive branch lawyer someone who believes in diminishing the powers of the executive branch. This is akin to naming a conscientious objector as the head of the armed forces, or hiring your wife's divorce lawyer to handle your side of the settlement too.
It's also a radical reinvention of the Framers' view that the three branches of the federal government would vigorously assert their powers to achieve the proper political balance. For this reason, OLC's longstanding jurisprudence -- reaching across Administrations of both parties -- emphasizes an expansive reading of Presidential authority. For example, the office has always filed opinions opposing the 1973 War Powers Act, which sought to limit the chief executive's ability to send military forces abroad. Such opinions covered both Bill Clinton's intervention in Kosovo and George H.W. Bush's in Somalia.
Ms. Johnsen's work ignores all of this in an attempt to assail the entire scope of Bush counterterrorism policy, from surveillance to detention to interrogation. She claims that the OLC "misinterpreted relevant constitutional authorities, particularly when seeking to justify actions otherwise prohibited by law." She pays special attention to John Yoo's August 2002 OLC memorandum that set down the legal limits for interrogation, which she calls "the Torture Opinion."
Ms. Johnsen accuses Mr. Yoo of "seeking maximum flexibility -- that is, the ability to use the most extreme methods possible without risking criminal liability -- in interrogations of suspected al Qaeda operatives." She means this as a condemnation. But this in fact is the OLC's job -- to explore the legal boundaries of vague statutes and treaties to define where lawful interrogation ends and torture begins. You can debate that Mr. Yoo went too far, as Mr. Goldsmith later did when the Bush Administration withdrew the opinion. But Mr. Yoo was acting in good faith in response to the CIA's request for legal clarity, while leaving the policy choices to the war fighters.
And that's where Ms. Johnsen's premises are most dangerous. "In considering whether a proposed action is lawful," she writes, "the proper OLC inquiry is not simply whether the executive branch can get away with it," in the sense of writing opinions that can "withstand judicial review." She sees the OLC staff not as legal technicians working on behalf of the President but as a policy outfit free to quash Presidential actions with which it happens to disagree.
This is far from an academic exercise, because the OLC's advice is traditionally binding for the executive branch except in rare cases where it is overruled by the President or Attorney General. To the extent that such a mentality seeps across the executive branch, it will begin to make our spies and other war fighters risk-averse and overcautious. This is precisely what happened during the Clinton years after Deputy Attorney General Jamie Gorelick's infamous 1995 memo instructed FBI agents and federal prosecutors to go "beyond what the law requires" in limiting their collaboration against al Qaeda.
Suffocating our terror fighters with excessive legal caution can only impair the difficult task of defending a free society that believes in the rule of law from terrorists who believe in neither freedom nor law. If President Obama matures under the burden and accountability of stopping the next terror attack, he may come to regret having Dawn Johnsen around.
Johnsen's an outrage because she thinks law exists independently of power. To the rabid dogs of the WSJ, the executive should recognize only those limits forced on it in the course of a death struggle with the other branches.
Carl Schmitt calling!
"One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth."
Yes, Congress, terror to the weak White House of the last eight years.
Note they don't say presidential authority under the constitution, as this is apparently synonymous with constitutional authority per se. The Constitution makes no mention of "executive privilege," so they hasten to add that, along with the "war powers" that the Constitution actually vests in the legislature.
In other words, Mr. Obama has nominated as his main executive branch lawyer someone who believes in diminishing the powers of the executive branch. This is akin to naming a conscientious objector as the head of the armed forces, or hiring your wife's divorce lawyer to handle your side of the settlement too.
Again, this is how the WSJ understands the idea that constitutional limits and the law of the land apply to the executive branch: as a diminishment of powers, which apparently require no legal basis. Executive branch members who place law above president are fifth columnists, "Suffocating our terror fighters with excessive legal caution"!
