Ruth Marcus has an op ed piece in today's Washington Post entitled Ghost of John Bolton in which she excoriates Republicans for threatening to filibuster the nomination of Dawn Johnsen to head the Justice Department's Office of Legal Counsel. If you want examples of Republican hypocrisy on the question of filibuster, she will give you the ammunition. But consider this
The irony of the controversy over Johnsen is that she is firmly in the mainstream on the kind of executive power issues at the core of the OLC's work. During the Bush years, I regularly called Johnsen precisely because I found her analysis to be more thoughtful than the reflexive Bush-is-wrong liberal reaction.
I hope that has your attention. That is the start of a paragraph that brought me up short. I will quote the complete paragraph below the fold.
The irony of the controversy over Johnsen is that she is firmly in the mainstream on the kind of executive power issues at the core of the OLC's work. During the Bush years, I regularly called Johnsen precisely because I found her analysis to be more thoughtful than the reflexive Bush-is-wrong liberal reaction. She had an appropriate respect for presidential power; she understood the importance of keeping certain presidential communications private. On presidential signing statements, Johnsen staked out a nuanced position to the right of the American Bar Association, which opposed their use in all circumstances. She has expressed doubt about prosecuting CIA employees for engaging in torture based "on what OLC and the White House instructed that the law permitted."
Earlier today I posted a comment on NCrissieB's diary, in which I wrote in part
I want all the torture memoranda released, a full examination of what happened, including what was considered, so that anyone associated with such actions, actual or proposed, is fully exposed and never again let near the levers of power. It is why I am quite disappointed that John Brennan is in the White House staff.
I read that paragraph about Dawn Johnson and I am disappointed. I am aware that Obama has expressed a desire to move forward, but I am firmly of the belief that we cannot ignore what was done, ostensibly in our name. And I am as sure as hell that if we do not release the memoranda whose release is being blocked in part because of a threat to filibuster Johnsen, we will not know how the White House "instructed that the law permitted." Even ignoring the fact that an order from the president does not remove the illegality of an act, an issue to which I will return, the American people have the obligation to examine for ourselves the supposed legal arguments put forth by that administration to justify what clearly was torture. Obviously the participants in those actions knew there was a problem with what they had done, because all tapes of the "enhanced interrogations" at Gitmo were destroyed, in apparent violation of court instructions to preserve evidence - why take that risk of possible contempt charges unless one believed that the tapes exposed the participants to possibly much more serious charges? And if that fear existed, the destruction occurring while the administration which had issued the legal memoranda was still in power, then clearly there must have been doubts on the part of those participants as to the legality of their actions, even with the cover of paperwork from the administration.
Let me posit a not so new idea. It is not that 9-11 changed everything. It is that Nuremberg changed everything. We established a principle that there are things that are NEVER justified, that orders cannot give one cover for acts that are clearly violative of international standards, of basic human rights. That nations have continued to violate those clear standards does not make them any less meaningful than the fact our domestic laws are regularly broken. Passing of a law does not eliminate behaviors made illegal, but enforcement of laws reduces the violation. Our unwillingness to pursue violations by American officials, high and petty, of bright lines beyond which one should not go.
This nation needs to fully examine the record. I read what Marcus says about Dawn Johnsen and I find myself with an easy decision: given the choice between full exposure of the wrongs of the past administration, including the supposed "legal" reasoning used to justify torture and who knows what else, and the approval of one appointee whose commitment to accountability is at least questionable, I am unwilling to support going to the mat on her behalf.
This has nothing to do with her merits otherwise. And I am well aware that the statements she has made about abortion are complicating how some are evaluating their response in this situation. I am totally ignoring that part of the mess.
No president is above the law. No president can grant immunity by telling someone to do an illegal act. Every president has the power to pardon acts illegal under Federal law, if s/he is willing to take the political hit for exercising such clemency powers. No president has the power to pardon acts from prosecution under international law or where universal authority such as that being used by the Spanish judge is asserted to exist. And we cannot deny to other nations the right to apply such universal authority against our officials when we have been willing to apply it to the officials of other nations.
Here I find myself reluctantly but firmly parting company with the President on this appointment. I do not support putting into the Office of Legal Counsel someone who is not fully supportive of a complete exposure of the wrongs of the previous administration. I fear the legal justifications that will be offered for avoiding taking the hard but necessary actions to clear the air, to thereby ensure no president, present or future, will ever again be tempted to allow his administration to act with such impunity with respect to international law and basic human decency.
UPDATE - Arun has raised in the comments questions about the accuracy of the assertions by Marcus, and believes the links provided disprove at least in part Marcus's characterizations of the ABA position on signing statements. On that basis Arun argues that we should call into question both Marcus's assertion of her frequent consultations with Johnson and possibly the characterization of Johnson's position on prosecutions. I think those are fair concerns, to which I offer the following response: all that matter to me is the characterization of Johnsen's position on doubting whether one should pursue prosecutions because of memoranda. If that position is inaccurate, and Johnsen does not hold the position, I would withdraw my objection to her appointment. Nevertheless, I would still argue that release of the memoranda is more important than the appointment itself, would release them, and then dare the Republicans to mount a full filibuster. Oh, and while I am updating, I am also fixing my misspelling of Johnsen's name.