Our nation has a decision of monumental importance to make.
Throughout the eight years of the Bush/Cheney administration, top government officials have strayed further from the rule of law and moral decency than at any time since our nation first took the lead in establishing a system of international law and morality.
Following the Nazi Holocaust and World War II the recognition of the need for such a system became acute and widespread. The United Nations was
conceived by President Roosevelt and
led to fruition by President Truman, in an effort to make it a reality. Our nation also took the lead, through the
Nuremberg trials, in holding the perpetrators of war crimes and crimes against humanity accountable for their actions.
But the Bush administration did away with all that. Not only did they
set up a torture regime, but they used that torture regime largely to
force false confessions to justify an illegal and immoral war of aggression.
If we allow that to stand; if we confer impunity upon the perpetrators of those crimes, then we effectively condone them and thereby allow a terrible precedent to stand.
Of all the single actions that could lead towards the re-establishment of the rule of law and morality in our country, the confirmation of Dawn Johnsen to head the Office of Legal Counsel is perhaps the most important.
It was from the OLC that John Yoo authored his infamous
torture memos. As
head of the OLC, Dawn Johnsen will be the principle legal advisor to the Attorney General and responsible for providing legal advice to the President and other Executive Branch agencies. She will be in the third most authoritative position, next to Eric Holder and Obama himself, to pursue the many serious crimes committed by the Bush/Cheney administration.
Johnsen graduated from Yale Law School and was an OLC official in the Clinton administration. Her strong and publicly vocal opposition to Bush administration crimes make it seem unlikely that she will stand for allowing those crimes to be ignored. If she is confirmed it seems highly likely that she will aggressively push for a full investigation into those crimes, with appropriate action taken in response to wherever those investigations lead.
Yet, Republicans are
threatening to filibuster her confirmation – precisely because they are afraid that she will do that.
DAWN JOHNSEN ON TORTURE, THE LIMITS OF EXECUTIVE POWER, AND ACCOUNTABILITYOn Bush administration tortureIn April 2008, Johnsen
expressed her outrage over the revelation of the latest Bush OLC torture memo:
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.
We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise… will threaten the rule of law – and not just for the remaining nine months of this administration, but for years and administrations to come.
OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. . . .
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.
I 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….
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. . . .
And Johnsen is definitely not one to limit accountability to low even high level personnel:
Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not…. Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity… In fact, the ones at Justice who didn't last are the officials who dared to say "no" to the President – which, by the way, is OLC's core job description. . . .The correct response to all this? Outrage… directed where it belongs: at President Bush, as well as his lawyers.
On the limits of executive authorityJohnsen
is an expert on the limitations of Executive power and OLC’s role in enforcing those limitations, and she has
written about that issue:
OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government. The Constitution expressly requires the President to "take Care that the Laws be faithfully executed." This command cannot be reconciled with executive action based on preferred, merely plausible legal interpretations that support desired policies… If such advice were given with a wink and a nod so that the President was not actually misled, OLC would be wrongfully empowering the President to violate his constitutional obligations.
She has also
written forcefully about the Bush administration’s abuse of its power, and her disgust with Congress for allowing it:
I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else) – despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.
She has also dealt with the issue of how the OLC should seek to ensure Executive Branch compliance with the rule of law, and she has
signed on to guidelines to that effect:
OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action…
On holding criminals accountable for their crimesIf there was any doubt from the above writings by Dawn Johnsen that, as head of the OLC, she would be intent on holding the Bush administration accountable for its crimes, here is what she wrote on that subject in March 2008, in an article titled “
Restoring our Nation’s Honor”:
I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. . . .
Whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .
The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of us who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.
IF YOU AGREEThe above statements by Dawn Johnsen leave little doubt as to how she will proceed with this issue. If you agree with me that her appointment to head the OLC is likely to go a long way towards restoring the rule of law in our country and our moral standing in the world, then please consider contacting your Senators to urge them to support her confirmation. Here is
a link you can use to do that. Add your own message to the comment box, or feel free to use mine:
Although President Obama
has declared that our nation will no longer torture, the precedent set by the Bush administration that enabled our government to torture unknown numbers of our detainees remains in effect. That precedent will continue to remain in effect until we demonstrate as a nation that we will not allow crimes against humanity to be committed in our name with impunity.
Some U.S. Senators are threatening to filibuster the appointment of Dawn Johnsen to head the Office of Legal Counsel because they fear that she will work to uphold the rule of law by advocating the prosecution of government officials involved in torture or other crimes against humanity. We must not allow that to happen. We need an independent Office of Legal Counsel that will not be afraid to uphold the rule of law in our country and take steps to restore our moral standing in the world.
Please support the confirmation of Dawn Johnsen to head the Office of Legal Counsel.
For additional help, you can view
the past 25 messages sent (of the current total of 5505) through the above link. Here is a
New York Times editorial supporting Dawn Johnsen’s confirmation. And this article
describes the support of former conservative OLC head Douglas Kmiec.
Glen Greenwald, referring to Johnsen’s writings,
sums up the importance of Dawn Johnsen’s confirmation:
Anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor… all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come"… is someone whose appointment to such an important post is almost certainly a positive sign… It's hard not to consider this encouraging.
But it will be a terrible, and very possibly fatal blow to our efforts to hold Bush administration officials accountable for their crimes if the U.S. Senate fails to confirm her nomination.
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