In an op-ed in today's WaPo former nominee to head the Office of Legal Counsel Dawn Johnsen writes about her failed nomination and the extreme politicization of the position post-torture memo.
In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.
It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.
There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice....
After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." [pdf] We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."
Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were....
The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks. Nor should such a critical office go without a confirmed head. It is time for the swift confirmation of an assistant attorney general and a renewed bipartisan commitment to the integrity of the OLC's work.
The OLC nomination, closing Guantanamo, creating a commission to determine how to detain and prosecute enemy combatants--all of these issues have been largely pushed aside by the administration and by Congress. They're too difficult, too messy and complicated and, yes, politicized. But they also all represent the still festering wounds the Bush administration inflicted on the nation in the aftermath of September 11. Shuffling it all off to hide it away to think about some other, later day only compounds the problem.
Absent a full, public airing of the entire sordid history of the development of those OLC torture memos, the implementation of torture, the responsibility chain for torture, Johnsen's vision for "renewed bipartisan commitment to the integrity of the OLC's work" will never happen. At this rate, it's entirely possible that the OLC will go another six years without a confirmed leader.