By Jason Leopold

Next week, the Senate Judiciary Committee will hold confirmation hearings for Dawn Johnsen, President Barack Obama’s pick to lead the Justice Department’s Office of Legal Counsel (OLC), the once obscure office that is now synonymous with torture.

It was at the OLC where then-Deputy Assistant Attorney General John Yoo, and his boss Jay Bybee, drafted a highly controversial legal opinion on Aug. 1, 2002 that gave the Bush administration the legal justification it sought to authorize the CIA to subject suspected terrorist detainees to long-outlawed interrogation techniques such as waterboarding. That memo was prepared for then-White House Counsel Alberto Gonzales and signed by Bybee.

A Justice Department watchdog report into the genesis of the torture memo, as well as other controversial legal opinions drafted by Yoo, concluded late last year that Yoo and Bybee essentially fixed the law around the administration’s desired policy in what would appear to be a breach of OLC guidelines, according to people who has seen the report and spoke on condition of anonymity because the report is still classified.

Johnsen, who served at OLC during the presidency of Bill Clinton, has been one of the most outspoken critics of the George W. Bush’s interrogation and domestic surveillance policies go so far as to call the Bush administration “lawless.”

She is a major proponent of open government and has called on the DOJ to publicly release all of the extraordinary legal opinions drafted for the Bush administration.

In the past five years, Johnsen, a professor of law at Indiana University and a contributor to a now defunct legal blog at the web magazine Slate, has published dozens of articles that were sharply critical of the Bush administration and John Yoo in particular. She has told her law students that it “pains her” to know that OLC wrote “a legal opinion on the issue of torture.”

Johnsen’s published articles as well as answers to her questionnaire and other documents are now part of the Senate Judiciary Committee’s voluminous nomination materials distributed to members of the Judiciary Committee Tuesday who will decide whether to confirm her as head of OLC. Here hearing is scheduled for Feb. 25 at 2 p.m.

More than two-dozen prominent attorneys who served in Democrat and Republican administrations have sent letters of support to the committee lauding Johnsen’s legal work in areas such as abortion and constitutional law.

A peek at the materials leaves no doubt that Johnsen will face tough questions from Republicans on the committee who have tried unsuccessfully over the past two months to force Obama’s picks for cabinet positions, notably Attorney General Eric Holder, to state their positions on whether specific interrogation techniques met the legal definition of torture and whether they backed calls to launch criminal probes into Bush administration officials responsible for enacting the policies.

Johnsen’s hearing is important because it will keep the issue about investigations into the Bush administration’s torture program front and center and will likely lead to further debate in the halls of Congress about the formation of truth commission, as proposed two weeks ago by Judiciary Committee Chairman Patrick Leahy, to probe torture as well as other Bush-era policies whose legality has been questioned.

As recently as last November, Johnsen said there is no doubt that the Justice Department must “investigate past wrongdoing.”

“There will be an understandable desire to be forward looking, but the [Attorney General] has an oblig[ation] to quickly appoint individuals of [the] highest integrity to DOJ leadership, individuals who can be counted on to tell the President ‘no’ when necessary.” Johnsen said during a discussion Nov. 12, 2008, hosted by The Center for American Progress, according to a transcript released by the Judiciary Committee.
 
Her comments would appear to be a critique of the way in which the OLC operated under Yoo and Bybee, and Steven Bradbury, all of whom, according to the DOJ watchdog report blurred the lines between attorneys charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, people who have seen the report said.

In the same panel discussion last November, however, Johnsen said the legal memos Yoo drafted and Bybee signed “are binding on the [executive branch] and make it very difficult to hold someone accountable for illegal actions if they relied on an OLC opinion.”

That’s the line Bush, Dick Cheney, and other high-level officials in the previous administration have used to explain their actions. During an interview with CNN’s Larry King before he left office, Bush, who admitted he signed off on waterboarding of at least three terrorist suspects at Guantanamo, said, “I got legal opinions that said whatever we’re going to do is legal.”

Johnsen added that when she worked at OLC it had previously acted as the “internal counsel” to the executive branch, “outside of public limelight.”

But the “Bush administration changed all that with OLC’s terribly flawed advice on counterterrorism issues, especially infamous torture memoranda,” she said. In a speech to law students a few years ago, Johnsen said, “the torture memo is a great example of independent constitutional interpretation done exactly the wrong way.”  

The “torture memo goes against the tradition of OLC,” Johnsen said. “The President is not best served by lawyers who just tell him what he would like to hear; and OLC certainly should not be advising the [executive branch] on how to get
away with violating people’s rights.”

Last April, Johnsen testified www. judiciary.senate.gov/pdf/08-04-30Johnsen_Dawn_testimony.pdf before the Senate Judiciary Committee and testified about the work of the OLC and the legal memos drafted by Yoo and others.

“I was astonished, and immensely worried, to discover that some of the most important counterterrorism policies rested on severely damaged legal foundations,” she told the panel. “I was part of a group of nineteen former OLC lawyers who were outraged by that initial OLC Torture opinion that was leaked in the summer of 2004, and who responded by coauthoring a short statement of the core principles that we believe should guide OLC’s formulation of legal advice.

“Our statement of ten principles, issued in December 2004 and entitled Principles to Guide the Office of Legal Counsel (“the Guidelines”) describes how OLC should function, with an eye toward avoiding a recurrence of what to us was a dramatic and dangerous deviation from the office’s longstanding, best traditions.”

Prior to her testimony, Johnsen wrote in Slate: “The shockingly flawed content of [another torture] 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.

“John Yoo, the memo’s author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith’s harsh criticism–and withdrawal–of the memo,” Johnsen wrote. “Not only that, Yoo attempts to spin the memo’s advice on presidential power as “near boilerplate:”  “Far from inventing some novel interpretations of the Constitution, our legal advice to the President, in fact, was near boilerplate.

“I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since.  I know (many of us know) Yoo’s statement to be false.  And not merely false, but irresponsibly and dangerously false in a way that impugns OLC’s integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law. Far from “near boilerplate,” recall that the last President who took the view that “when the President does it that means that it is not illegal” was forced to resign in disgrace.”

Johnsen has also advocated for the public disclosure of OLC legal memos, particularly those dealing with torture.

“The likelihood of public disclosure will encourage both the reality and the appearance of governmental adherence to the rule of law, including by deterring “excessive claims of executive authority,” she said. “In significant part because of inappropriate secrecy, the current Administration has dangerously compromised the work of OLC. Particularly on important counterterrorism matters, OLC has failed to satisfy the Guidelines’ first and most fundamental principle: OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.

“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action. In short, OLC must be prepared to say no to the President.

“For OLC instead to distort its legal analysis to support preferred policy outcomes undermines the rule of law and our democratic system of government. Perhaps most essential to avoiding a culture in which OLC becomes merely an advocate of the Administration’s policy preferences is transparency in the specific legal interpretations that inform executive action, as well as in the general governing processes and standards followed in formulating that legal advice.”

Johnsen’s position on disclosing previous secret memos has become a point of contention among civil rights organizations and the Obama administration.

The American Civil Liberties Union recently filed a lawsuit to force the Obama administration to disclose three secret OLC memos revolving around torture, rendition and domestic surveillance. Much to the surprise of the ACLU, the Obama administration last week asked a federal court judge for a 90-day delay in a hearing over the ACLU’s lawsuit while it reviews the memos. The Justice Department said there was no guarantee that the legal opinions would be released.

During his first week in office, Obama promised to “usher in a new era of open government.”

“The Freedom of Information Act should be administered with a clear presumption: in the face of doubt, openness prevails,” states a memo Obama sent Jan. 26 to the heads of various federal agencies. “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

Jameel Jaffer, Director of the ACLU National Security Project, said while the Obama administration “deserves credit” for “its disavowal of torture and for the commitment it has made to transparency, but the public has waited long enough for the disclosure of these memos…While we applaud the administration for its promise of transparency, it’s now time to make good on that promise.”

On Tuesday, the ACLU and Obama’s Justice Department reached a compromise; both sides agreed to a 30-day delay while the DOJ reviews the memos and determine whether or not to release them publicly.