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Dawn Johnsen, whom Obama is appointing to head up the Office of Legal Counsel, John Yoo's old haunt, is author of an issue brief: "All the President's Lawyers:  How to Avoid Another "Torture Opinion" Debacle" and an article on guidelines for the President's legal advisors.

Dawn Johnsen: The Role of the OLC and DOJ (At The American Constitution Society)

She spoke at an October 2007 event on principles to guide the Department of Justice. Below are excerpts from that panel discussion.

Dawn Johnsen discusses the role of the Office of Legal Counsel.

Big Changes at the Office of Legal Counsel
by NLinStPaul at, Mon Jan 05, 2009 at 18:03:21 PST
If you wish to repost this essay you can download a .txt file of the html here (right click and save). Permission granted.

Obama announced that he has chosen Dawn Johnsen to lead the Office of Legal Counsel, the same position once held by the infamous John Yoo.

In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counter-terrorism 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 at 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 permitted the aggressive interrogations of terrorism suspects, she excoriated the unit's lawyers for advising Bush ``that in fighting the war on terror, he is not bound by the laws Congress has enacted.''

Yep, I'd say Ms. Johnsen is a bit outraged at the whole idea that a Unitary Executive can decide to torture at will. Here's something she wrote last April when the "torture memo's" were released.

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.

Think maybe she'd join us in signing the petition for a Special Prosecutor?

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Other Obama appointees to the Justice Department include:

_ David Ogden, a top Justice Department official during the Clinton administration, as deputy attorney general, the No. 2 figure under Attorney General-designate Eric Holder.

_ Elena Kagan, the dean of the Harvard University Law School and a former Clinton White House aide, as solicitor general.

_ Tom Perrelli, counsel to Clinton Attorney General Janet Reno from 1997 to 1999, as the associate attorney general who oversees civil matters.

Docudharma Tag: petition for a special prosecutor

Closely related story: The Man: Attorney General-Designate Eric Holder Jr.

Originally posted to Edger on Tue Jan 06, 2009 at 07:01 AM PST.

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Comment Preferences

  •  A No-Torture Memo would be a good thing, yes? (16+ / 0-)

    Prosecution of torturers would be an even better thing, yes?

    Petition Badge
    Get Badge

  •  I'm glad we elected a constitutional scholar (8+ / 0-)

    to be our president.

    moderation in everything ... including moderation

    by C Barr on Tue Jan 06, 2009 at 07:16:44 AM PST

  •  This choice, along with Panetta's (5+ / 0-)

    tells me that we AMERICA voted properly a few months ago.

    What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

    by agnostic on Tue Jan 06, 2009 at 07:17:40 AM PST

  •  Allow me point out: Indiana University Law School (4+ / 0-)

    Shameless plug for Indiana University.

    Dawn Johnsen Professor of Law and Ira C. Batman Faculty Fellow

    Obama reveals vision for DOJ with round of top appointments

    Once more, another reason I am proud to have been a staff member at Indiana University for almost 22 years.

    "We must become the change we want to see in the world." - Mahatma Gandhi

    by HeartlandLiberal on Tue Jan 06, 2009 at 07:22:38 AM PST

  •  Now THIS is Change! (3+ / 0-)
    Recommended by:
    conchita, Edger, Chacounne
  •  thanks to nlinstpaul and edger (3+ / 0-)

    for writing this.  great collection of positive info.  any chance we can get it on the rec list/

  •  The public is about to witness (0+ / 0-)

    a stern rebuke of Bushco's flouting of law and morality. Whether or not heads will roll, the selection of Panetta at CIA and Johnsen at OLC seems to be a prelude to an outright public confrontation of the crimes committed and a vow that such will never happen again.

    Imagine Obama, when pressured and criticized by press such as WaPo and other media organs of appeasement, by lingering Republican hawks and neocons, and by corrupted politicians like Feinstein and Lieberman, what a barnburning speech he could make, he the constitutional scholar with all righteous fact and legal philosophy on his side, to effing scald the slime right off the walls.

    •  And if he and Holder don't (0+ / 0-)

      appoint a special prosecutor and prosecute bush administration crimes, it will be just that.

      Another sternly worded letter. Full of high sounding empty words.

      •  Not exactly (0+ / 0-)

        because US foreign and domestic policy will conform to its original shape. As I said, whether or not heads will roll, the message will go out, the light will shine on those crimes,  and the gate will be shut against future abuses.

        Think big.

        •  No. Exactly that. (1+ / 0-)
          Recommended by:

          It will mean that Obama's words, Holder's words, and Johnsen's words in the video above, are meaningless, toohless, self congratulatory expressions of support for a judicial system and a rule of law that applies only to those with neither power nor wealth enough to subvert them.

          It will mean that torture is illegal, but if done by the "right" people that they are above the law, and will result in them being yelled at.

          It will make a mockery of American justice and law.

          U.S. Code: CHAPTER 113C--TORTURE

          Summary of International and U.S. Law Prohibiting Torture and Other Ill-treatment of Persons in Custody

          International and U.S. law prohibits torture and other ill-treatment of any person in custody in all circumstances. The prohibition applies to the United States during times of peace, armed conflict, or a state of emergency. Any person, whether a U.S. national or a non-citizen, is protected. It is irrelevant whether the detainee is determined to be a prisoner-of-war, a protected person, or a so-called "security detainee" or "unlawful combatant." And the prohibition is in effect within the territory of the United States or any place anywhere U.S. authorities have control over a person. In short, the prohibition against torture and ill-treatment is absolute.
          A federal anti-torture statute (18 U.S.C. § 2340A), enacted in 1994, provides for the prosecution of a U.S. national or anyone present in the United States who, while outside the U.S., commits or attempts to commit torture.

          Torture is defined as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." A person found guilty under the act can be incarcerated for up to 20 years or receive the death penalty if the torture results in the victim's death.

          You have signed the petition?

          •  Think bigger. Think. Even a little. (0+ / 0-)
            •  Now you're just insulting me (0+ / 0-)

              which means you think you're losing the argument. Whatever. But for me, the central issue is the survival of the constitution, the rule of law and international accord on Geneva conventions. This can happen whether or not the guilty are punished.

              And, I signed the petition and voted to put the issue on the Change list.

          •  Bingo. (1+ / 0-)
            Recommended by:

            I am pleased with Johnsen's appointment, and hopefully look forward to her confirmation.  OLC needs to be cleaned up.  It is a start.  A major step in the right direction.  But there MUST be accountability for what has taken place wrt to torture and its enablers.  Even former OLC head Jack Goldsmith tried to reverse the decisions of OLC rendered under Bybee's tenure as head.  The section is under a slow repair, but no one who perverted it has been held to account.  

            The Bybee / Addington / Yoo triumverate did great damage to OLC, and by extension, harmed the character of this country.  They gave CIA interrogators a green light to engage in just about any coercive (a generous term) regardless of its effectiveness in obtaining actionable intelligence.  FBI interrogators EXCUSED themselves from detainee interrogations administered by CIA officials, that's how bad and ILLEGAL they were.  The FBI wanted no part in torture.

            Goldsmith is no liberal lawyer, either.  He had to resign from OLC because no one was able to take on Addington.  No one.  Addington, Bybee and Yoo need to be brought to justice.  It is ABSOLUTELY necessary that these men pay for their crimes.  Obama should understand this.  He should also understand that more than lip service has to be paid to 'rule of law'.

            My 'diaries' SUCK! But check 'em out anyway just to make sure.

            by 4kedtongue on Tue Jan 06, 2009 at 09:52:28 AM PST

            [ Parent ]

            •  Addington, Bybee and Yoo... and (0+ / 0-)

              quite a few others, as well. Pelosi included.

              Understanding Pelosi: One Word: "Accessory"

              Nancy Pelosi was briefed on and signed off on torture. She won't impeach because she is an accessory to war crimes.

              She would be impeaching and convicting herself.

              Glenn Greenwald, Tuesday July 15, 2008
              The motivation for blocking investigations into Bush lawbreaking

     important political impediment to holding Bush officials accountable for their illegal torture program:

              An additional complicating factor is that key members of Congress sanctioned this program, so many of those who might ordinarily be counted on to lead the charge are themselves compromised.

              As we witness not just Republicans, but also Democrats in Congress, acting repeatedly to immunize executive branch lawbreaking and to obstruct investigations, it's vital to keep that fact in mind. With regard to illegal Bush programs of torture and eavesdropping, key Congressional Democrats were contemporaneously briefed on what the administration was doing (albeit, in fairness, often in unspecific ways). The fact that they did nothing to stop that illegality, and often explicitly approved of it, obviously incentivizes them to block any investigations or judicial proceedings into those illegal programs.

              In December of last year, The Washington Post revealed:

              Four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

              Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

              The article noted that other Democratic members who received briefings on the CIA's interrogation program included Jay Rockefeller and Jane Harman.

              •  I've read some pretty convincing... (1+ / 0-)
                Recommended by:

                ...mitigating factors for members of Congress.  

                I think 'signed off' is too strong a characterization.  They were briefed, but they weren't even allowed to inform their staff members or take notes about the nature of the briefings due to 'National Security' concerns.  Some of them are not lawyers.  It is impossible to know who raised concerns at the time, or the nature of the concerns raised.

                I think there should be an investigation into what was discussed in those briefings and there should be some radical changes made in how Congress is briefed by the Executive.  Staff members and notes should be permitted.  No one's hands should be completely negates the reason for Congressional briefings.  

                Since OLC has the FINAL say on what is legal, members of Congress who were briefed may have mistakenly thought that the policies described in the briefings were objectively vetted by DoJ lawyers, and since they aren't lawyers themselves, they trusted that the bureacracy was functioning properly.

                I'm not saying they should get a free pass, but the fact that House and Senate leaders and Intelligence Committee members were briefed and this shit still happened has exposed some fundamental flaws in the briefing process that should be addressed...and corrected.

                My 'diaries' SUCK! But check 'em out anyway just to make sure.

                by 4kedtongue on Tue Jan 06, 2009 at 10:16:51 AM PST

                [ Parent ]

                •  You may be right, and (1+ / 0-)
                  Recommended by:

                  I have no objection to war crimes trials for them as well as bush, cheney and the other bushco members mentioned above, to determine their guilt or innocence. In fact I support that strongly.

                  They all deserve fair trials. Not kangaroo courts, or trials by media. Fair trials in courts of law.

                •  OLC in no way has the final say on what is legal. (0+ / 0-)

                  OLC advises the President. OLC does not make law. The Constitution and the Congress define law and The Supreme Court interprets law and from time to time may make new law through it's rulings.

                  •  OLC has been described as a... (1+ / 0-)
                    Recommended by:

                    ...'mini-Supreme Court'.  It adjudicates intra-agency battles between the Pentagon, CIA, all executive branch departments.  OLC informs the executive what the law is.  I'm not saying that OLC can not be wrong or even overturned by the Judiciary, what I am saying is that given the secrecy surrounding torture and surveillance, only after details of those policies were leaked to the NYT was there an opportunity to debate the decsions handed down by OLC.  Until what is secret is made public, OLC has the final say in what is legal in the form of its recommendations to the president.  Since Bush / Cheney were stacking the deck at OLC, and were keeping these policies secret from REAL Congressional and Judicial oversight, Yoo, Addington and Bybee WERE the law.  And those member of Congress who were briefed were at the mercy of the OLC decisions.

                    My 'diaries' SUCK! But check 'em out anyway just to make sure.

                    by 4kedtongue on Tue Jan 06, 2009 at 10:52:08 AM PST

                    [ Parent ]

                    •  Yes (1+ / 0-)
                      Recommended by:

                      And those member of Congress who were briefed were at the mercy of the OLC decisions

                      Under the direction of Bybee, with Yoo's assistance.

                      DOJ: Office of Special Counsel:

                      By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

                      All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval.

                      In addition to serving as, in effect, outside counsel for the other agencies of the Executive Branch, the Office of Legal Counsel also functions as general counsel for the Department itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval. It also performs a variety of special assignments referred by the Attorney General or the Deputy Attorney General.

  •  Yoo never headed OLC... (1+ / 0-)
    Recommended by:

    ...Jay Bybee (now a federal judge on the 9th Circuit Court of Appeals) headed the office.  Yoo was a lawyer in OLC under Bybee.  They're both fucking bastards, however.

    My 'diaries' SUCK! But check 'em out anyway just to make sure.

    by 4kedtongue on Tue Jan 06, 2009 at 09:12:05 AM PST

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