The Obama DOJ’s embrace of Bush’s state secrets privilege in the Jeppesen(torture/rendition) case generated substantial outrage, and rightly so. But it’s now safe to say that far worse is the Obama DOJ’s conduct in the Al-Haramaincase — the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush’s NSA warrantless eavesdropping program. Here’s the first paragraph from the Wired report on Friday’s appellate ruling, which refused the Obama DOJ’s request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:
A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.
And here are the two paragraphs from the AP report:
The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. . . .
The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.
Let’s just pause for a moment to consider how remarkable those statements are. One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President’s actions. They would insist that “secrecy” prevented a judicial ruling even when the President’s actions were (a) already publicly disclosed in detail and (b) were blatantly criminal — as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized. Secrecy claims of that sort — to block judicial review of the President’s conduct, i.e., to immunize the President from the rule of law — provoked endless howls of outrage from Bush critics.
Yet now, the Obama administration is doing exactly the same thing. Hence, it is accurately deemed “a blow to the Obama administration” that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants. Why is the Obama administration so vested in preventing that from happening, and — worse still — in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?
Obama defenders take note: this is not a case where the Obama DOJ claims more time is needed to decide what to do, nor is it even a case where the Obama DOJ merely passively adopted the Bush DOJ’s already filed arguments. Here, they have done much, much more than that. Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding – emergency appeals, requests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court.
During the controversy in the Jeppesen/rendition case, there were actually “defend-Obama-at-all-costs” advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush’s State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent. But in the Al-Haramin case, the Obama DOJ has now lost — twice — in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims:
Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security. . . .
[H]ours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.
”The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.
Manifestly, the Obama DOJ has one goal and one goal only here: to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal. And they’re engaging in extraordinary efforts to ensure that occurs.
To explain why this behavior is so pernicious, so lawless and so dangerous, I’m going to turn the floor over to a long-time, eloquent critic of Bush’s secrecy theories — who just so happens also to be Obama’s soon-to-be-confirmedappointee for Chief of the Office of Legal Counsel, Dawn Johnsen. In March of 2008 — less than a year ago — this is what she said about the Bush administration’s efforts to conceal its FISA-violating eavesdropping activities:
NYT? What’s Bush’s Excuse for Keeping Law Violations Secret?
But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?
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 surveillanceor 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.
Yet here we have the Obama DOJ doing exactly this – not merely trying desperately to keep the Bush administration’s spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants. As Obama’s hand-picked OLC chief put 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.”
The details of this case (which I’ve recounted in full here) highlight even further how indefensible is the Obama DOJ’s conduct. The Bush administration succeeded in blocking all other judicial challenges to its illegal NSA eavesdropping with the Kafkaesque argument that because (a) nobody knows on whom the Bush administration spied without warrants (precisely because eavesdropping without warrants ensures that the targets are concealed from everyone, including even a court) and (b) that information cannot be disclosed to anyone (including courts) because it’s a “State Secret,” no individual party has “standing” to sue because nobody can prove that they were actually subjected to the illegal eavesdropping (because it was done in the dark).
But this case, from the start, was different. As part of a criminal investigation against the Al-Haramain Islamic Foundation, an Oregon-based charity, the Bush DOJ accidentally turned over to the charity’s lawyers a documentshowing that the Bush NSA eavesdropped without warrants on conversations between the charity and its two lawyers, both U.S. citizens. The charity and its lawyers then sued the Bush administration for illegally eavesdropping on their communications. That document is what distinguished this case from all other NSA cases, because it enables the plaintiffs (the charity and its lawyers) to prove that they were subjected to Bush’s illegal spying program and they therefore have standing to sue.
It is that document — which has been described publicly and which the plaintiffs’ lawyers have already seen – which the Obama DOJ is now desperately attempting to block the court from considering on the grounds that allowing the case to proceed will — somehow — harm America’s national security. Everyone knows the Bush administration spied on Americans without warrants and in violation of the law. Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on.
Still, there’s the Obama administration — just like the Bush administration — claiming that we’ll all be slaughtered if a court rules on whether the President broke the law. And, as Marcy Wheeler astutely notes, the lawbreaking here is particularly egregious (and certainly criminal) since some of the warrantless eavesdropping here appears to have occurred in March, 2004 – during the exact period when even the Bush DOJ expressly concluded that the NSA program was so illegal that it refused to certify its legality and top DOJ officials (including John Ashcroft) threatened to resign in protest of its continuation (here’s more from Marcy on some key details in this case, andfrom EFF as well).
Our nation’s most transparent administration in history won’t bother to explainwhy they’re doing any of this: “A Justice Department spokesman declined to comment.” We’ll probably have to wait for one of them to gather up enough courage to anonymously whisper their alleged reasons into Marc Ambinder’s faithful ear. In the meantime, while we wait for that, what is clear is that the Obama DOJ has undertaken exactly the same mission as the Bush DOJ for years so successfully carried out: namely, ensuring that Presidents remain above the law by invoking patently absurd claims of secrecy to argue that our National Security cannot withstand judicial rulings on whether the President’s actions were, in fact, illegal.
* * * * *
On a related note: last week, I interviewed the ACLU’s Jonathan Hafetz about the Obama administration’s March 23 deadline to file a Supreme Court brief in the Al-Marri case, brought by the last person still being held on U.S. soil as an “enemy combatant.” In 2003, Al-Marri (Hafetz’s client), who was in the U.S. legally on a student visa, was about to be tried on various criminal charges when, at the last minute, Bush declared him an “enemy combatant” and ordered him transferred to a military brig, where he has remained ever since with no charges and no trial. In his case, the Fourth Circuit’s Court of Appeals last year largely upheld the power of the President to imprison legal residents (and even U.S. citizens) on U.S. soil in military prison with no criminal charges, and the U.S. Supreme Court had agreed to review that decision.
This week, the Obama DOJ filed criminal charges against Al-Marri, so he will now be transferred back to the civilian court system and have what the U.S. Constitution clearly mandates: a full trial and due process. For Al-Marri, that is a positive step: now, he’ll only remain in prison if he’s convicted of a crime in a real court and (presumably) will be freed if he’s acquitted. That’s how our system is supposed to work.
But whether this is a positive step in a general sense is a different question. In the Jose Padilla case, the Bush administration kept a U.S. citizen in a cage for many years without charges of any kind, and then suddenly filed criminal charges against him right as the Supreme Court was set to rule on the constitutionality of imprisoning U.S. citizens as “enemy combatants” with no trial. Once they finally indicted Padilla, the Bush administration ran and argued that the indictment rendered the questions before the Court moot. The Supreme Court, in essence, agreed and refused to hear the appeal, thus leaving in place the Fourth Circuit’s affirmation that the President has this power.
If that is what the Obama DOJ does here — namely, if it succeeds in its efforts to convince the Supreme Court not to rule on this critical matter because, yet again, the individual who has been encaged for years without charges was, at the last minute, transferred to a civilian court (thus leaving standing the Fourth Circuit’s horrendous ruling) — that will be destructive for all the reasons that Bush critics cited when the same thing was done in the Padilla case.
The Obama DOJ deserves some limited credit for indicting Al-Marri and thus refusing to continue to imprison him with no charges. It’s certainly not Obama’s fault that Al-Marri was imprisoned for years with no charges, and the only fair option was to do what they did: give him a real trial. But if this indictment results in the preservation of the President’s power in the future to similarly detain people without charges — because of the Obama DOJ’s efforts to block the Supreme Court from ruling on this question — then it is worthy of criticisms for the same reasons it was in the Padilla case.
Ultimately, the real question is not whether you think Obama will use these powers the same way Bush did (nobody can know that), but rather: do you want the secrecy and detention architecture built by George Bush, Dick Cheney and David Addington to remain in place so that — even if it remains dormant now — Obama or some future President can decide at any time to revitalize and use it at will? Thus far, Obama’s answer to that question seems to be a resounding “yes.”
UPDATE: I spoke to the annual conference of the ACLU of Massachusetts last month regarding impediments to the restoration of civil liberties under the Obama administration. I posted the link at the end of yesterday’s post, but since that was at the end of the day, and since the speech relates directly to the topic here, I’ll post it again for those interested: the 30-minute speech can be heard on MP3 here and is also available on ITunes here (the video of the speech may or may not be posted at some point in the future).
Three days after the world learned that $50 billion may have disappeared in Bernie Madoff’s Ponzi scheme, The Times led its front page of Dec. 14 with the revelation of another $50 billion rip-off. This time the vanished loot belonged to American taxpayers. That was our collective contribution to the $117 billion spent (as of mid-2008 ) on Iraq reconstruction — a sinkhole of corruption, cronyism, incompetence and outright theft that epitomized Bush management at home and abroad.
The source for this news was a near-final draft of an as-yet-unpublished 513-page federal history of this nation-building fiasco. The document was assembled by the Office of the Special Inspector General for Iraq Reconstruction — led by a Bush appointee, no less. It pinpoints, among other transgressions, a governmental Ponzi scheme concocted to bamboozle Americans into believing they were accruing steady dividends on their investment in a “new” Iraq.
The report quotes no less an authority than Colin Powell on how the scam worked. Back in 2003, Powell said, the Defense Department just “kept inventing numbers of Iraqi security forces — the number would jump 20,000 a week! ‘We now have 80,000, we now have 100,000, we now have 120,000.’ ” Those of us who questioned these astonishing numbers were dismissed as fools, much like those who begged in vain to get the Securities and Exchange Commission to challenge Madoff’s math.
What’s most remarkable about the Times article, however, is how little stir it caused. When, in 1971, The Times got its hands on the Pentagon Papers, the internal federal history of the Vietnam disaster, the revelations caused a national uproar. But after eight years of battering by Bush, the nation has been rendered half-catatonic. The Iraq Pentagon Papers sank with barely a trace.
After all, next to big-ticket administration horrors like Abu Ghraib, Guantánamo and the politicized hiring and firing at Alberto Gonzales’s Justice Department, the wreckage of Iraq reconstruction is what Ralph Kramden of “The Honeymooners” would dismiss as “a mere bag of shells.” The $50 billion also pales next to other sums that remain unaccounted for in the Bush era, from the $345 billion in lost tax revenue due to unpoliced offshore corporate tax havens to the far-from-transparent disposition of some $350 billion in Wall Street bailout money. In the old Pat Moynihan phrase, the Bush years have “defined deviancy down” in terms of how low a standard of ethical behavior we now tolerate as the norm from public officials.
Not even a good old-fashioned sex scandal could get our outrage going again. Indeed, a juicy one erupted last year in the Interior Department, where the inspector general found that officials “had used cocaine and marijuana, and had sexual relationships with oil and gas company representatives.” Two officials tasked with marketing oil on behalf of American taxpayers got so blotto at a daytime golf event sponsored by Shell that they became too incapacitated to drive and had to be put up by the oil company.
Back in the day, an oil-fueled scandal in that one department alone could mesmerize a nation and earn Warren Harding a permanent ranking among our all-time worst presidents. But while the scandals at Bush’s Interior resemble Teapot Dome — and also encompass millions of dollars in lost federal oil and gas royalties — they barely registered beyond the Beltway. Even late-night comics yawned when The Washington Post administered a coup de grâce last week, reporting that Interior Secretary Dirk Kempthorne spent $235,000 from taxpayers to redo his office bathroom (monogrammed towels included).
It took 110 pages for the Center for Public Integrity, a nonpartisan research organization, to compile the CliffsNotes inventory of the Bush wreckage last month. It found “125 systematic failures across the breadth of the federal government.” That accounting is conservative. There are still too many unanswered questions.
Just a short list is staggering. Who put that bogus “uranium from Africa” into the crucial prewar State of the Union address after the C.I.A. removed it from previous Bush speeches? How high up were the authorities who ordered and condoned torture and then let the “rotten apples” at the bottom of the military heap take the fall? Who orchestrated the Pentagon’s elaborate P.R. efforts to cover up Pat Tillman’s death by “friendly fire” in Afghanistan?
And, for extra credit, whatever did happen to Bush’s records from the Texas Air National Guard?
The biggest question hovering over all this history, however, concerns the future more than the past. If we get bogged down in adjudicating every Bush White House wrong, how will we have the energy, time or focus to deal with the all-hands-on-deck crises that this administration’s malfeasance and ineptitude have bequeathed us? The president-elect himself struck this note last spring. “If crimes have been committed, they should be investigated,” Barack Obama said. “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”
Henry Waxman, the California congressman who has been our most tireless inquisitor into Bush scandals, essentially agreed when I spoke to him last week. Though he remains outraged about both the chicanery used to sell the Iraq war and the administration’s overall abuse of power, he adds: “I don’t see Congress pursuing it. We’ve got to move on to other issues.” He would rather see any prosecutions augmented by an independent investigation that fills in the historical record. “We need to depoliticize it,” he says. “If a Democratic Congress or administration pursues it, it will be seen as partisan.”
We could certainly do worse than another 9/11 Commission. Among those Americans still enraged about the Bush years, there are also calls for truth and reconciliation commissions, war crimes trials and, in a petition movement on Obama’s transition Web site, a special prosecutor in the Patrick Fitzgerald mode. One of the sharpest appointments yet made by the incoming president may support decisive action: Dawn Johnsen, a law professor and former Clinton administration official who last week was chosen to run the Office of Legal Counsel in the Department of Justice.
This is the same office where the Bush apparatchik John Yoo produced his infamous memos justifying torture. Johnsen is a fierce critic of such constitutional abuses. In articles for Slate last year, she wondered “where is the outrage, the public outcry” over a government that has acted lawlessly and that “does not respect the legal and moral bounds of human decency.” She asked, “How do we save our country’s honor, and our own?”
The last is not a rhetorical question. While our new president indeed must move on and address the urgent crises that cannot wait, Bush administration malfeasance can’t be merely forgotten or finessed. A new Justice Department must enforce the law; Congress must press outstanding subpoenas to smoke out potential criminal activity; every legal effort must be made to stop what seems like a wholesale effort by the outgoing White House to withhold, hide and possibly destroy huge chunks of its electronic and paper trail. As Johnsen wrote last March, we must also “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.”
As if to anticipate the current debate, she added that “we must avoid any temptation simply to move on,” because the national honor cannot be restored “without full disclosure.” She was talking about America regaining its international reputation in the aftermath of our government’s descent into the dark side of torture and “extraordinary rendition.” But I would add that we need full disclosure of the more prosaic governmental corruption of the Bush years, too, for pragmatic domestic reasons. To make the policy decisions ahead of us in the economic meltdown, we must know what went wrong along the way in the executive and legislative branches alike.
As the financial historian Ron Chernow wrote in the Times last week, we could desperately use a Ferdinand Pecora, the investigator who illuminated the history of the 1929 meltdown in Senate hearings on the eve of the New Deal. The terrain to be mined would include not just the usual Wall Street suspects and their Congressional and regulatory enablers but also the Department of Housing and Urban Development, a strangely neglected ground zero in the foreclosure meltdown. The department’s secretary, Alphonso Jackson, resigned in March amid still-unresolved investigations over whether he enriched himself and friends with government contracts.
The tentative and amorphous $800 billion stimulus proposed by Obama last week sounds like a lot, but it’s a drop in the bucket when set against the damage it must help counteract: more than $10 trillion in new debt and new obligations piled up by the Bush administration in eight years, as calculated by the economists Linda J. Bilmes and Joseph E. Stiglitz in the current Harper’s Magazine.
If Bernie Madoff, at least, can still revive what remains of our deadened capacity for outrage, so can those who pulled off Washington’s Ponzi schemes. The more we learn about where all the bodies and billions were buried on our path to ruin, the easier it may be for our new president to make the case for a bold, whatever-it-takes New Deal.
The Office of Legal Counsel, inside the Justice Department, is probably the most consequential federal government office that remains relatively obscure. The legal opinions which it issues become, more or less automatically, the official legal position of the Executive Branch. It was from that office that John Yoo, Jay Bybee and others did so much damage, issuing now-infamous memoranda that established the regime of lawlessness that has dominated our political institutions over the last eight years. Other than Attorney General-designate Eric Holder and Obama himself, there is probably no official who will have a more significant role in determining the extent to which the Obama administration really does reverse the lawlessness and legal radicalism of the Bush years.
Today, as The Boston Globe just reported, Barack Obama announced several new appointments to key DOJ posts, including Dawn Johnsen to head the OLC. Johnsen is a Professor of Law at Indiana University, a former OLC official in the Clinton administration (as well as a former ACLU counsel), and a graduate of Yale Law School. She’s become a true expert on executive power and, specifically, the role and obligation of the OLC in restricting presidential decisions to their lawful scope.
There are several striking pieces of evidence that suggest this appointment may be Obama’s best yet, perhaps by far. Consider, first, this rather emphatic Slatearticle authored by Johnsen in the wake of the disclosure, last April, of the 81-page John Yoo Memo which declared that the President’s power to torture detainees is virtually limitless. Her article is notable at least as much for its tone as for its substance (emphasis added):
I want to second Dahlia’s frustration with those who don’t see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. 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.
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. Not only that, Yoo attempts to spin the memo’s advice on presidential power as “near boilerplate” . . .
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. . . .
Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not.
As Dahlia points out, 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–or for breaking the laws. In fact, the ones at Justice who didn’t last are the officials (like Goldsmith) who dared to say “no” to the President-which, by the way, is OLC’s core job description. . . .
The correct response to all this? Marty has several good suggestions to start. And outrage. Directed where it belongs: at President Bush, as well as his lawyers.
A couple of weeks before that, she wrote a short piece for Slate lambasting the Bush administration for violating FISA in secret (with the approval of then-OLC head Jack Goldsmith) and for manipulating the New York Times into concealing the story for a full year. There, she wrote (emphasis added):
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.
Perhaps most importantly — and most impressively — of all, this is what she wrote in Slate on March 18, regarding what the next administration must do about Bush’s serial lawbreaking:
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. . . .
The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. . . .
But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that 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 use 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.
I first read these posts of Johnsen’s a few weeks ago when a reporter asked me about my reaction to the possibility that she might be appointed to head the OLC. Beyond these articles, I don’t know all that much about her, but 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, stating the OLC’s “core job description” is to “say ‘no’ to the President,” all while emphasizing that the danger is unchecked power not just for the Bush administration but “for years and administrations to come” — and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters — is someone whose appointment to such an important post is almost certainly a positive sign. No praise is due Obama until he actually does things that merit praise, but it’s hard not to consider this encouraging.
UPDATE: Here is an excerpt of Johnsen, in October, 2007, at a panel discussion of the American Constitution Society, discussing what she called the “corrupt” legal advice of the Bush OLC and explaining the proper role of that office, with “independence” as the centerpiece: “OLC and the Attorney General have to be prepared to tell the President ‘no’; that’s what the law requires” (h/t Jim White):
UPDATE II: A bit more good news today was Obama’s announcement of his selection for CIA Director: former Clinton White House Chief of Staff (and Congressman) Leon Panetta. I don’t have any particular thoughts, one way or the other, about Panetta himself, but — particularly in the wake of the Brennan controversy — it does seem clear that the Obama team was serious about avoiding anyone who had any connection at all to the Bush torture, surveillance and detention programs. Not only did they want to avoid anyone with any formal connection, but also anyone who (like Brennan) advocated or supported those programs, as The New York Times reported today:
Members of Mr. Obama’s transition also raised concerns about other candidates, even some Democratic lawmakers with intelligence experience. Representative Jane Harman of California, formerly the senior Democrat on the House Intelligence Committee, had hoped to get the job, but she wasruled out as a candidate in part because of her early support for some Bush administration programs like the domestic eavesdropping program.
Good. Supporting Bush’s illegal NSA program — as Harman did, repeatedly and explicitly — should be disqualifying for the position of CIA Director. Panetta may have many flaws — who doesn’t after years and years in Washington? — but Obama’s apparent determination to avoid anyone “tainted” by the CIA’s last eight years is commendable. Like the Johnsen appointment, it doesn’t, standing alone, prove anything — only actions will do that — but it’s still a positive step.
UPDATE III: The New York Times‘ Eric Lichtblau, writing today about the Johnsen appointment, says that OLC “has become controversial because of its legal defense of practices bordering on torture.” Most of the civilized world — which once included the United States — has long recognized those “practices” as torture, but it’s nice that the Times has cleared this up. Waterboarding and the like merely “border on torture.” Someone should alert the numerous waterboarding Japanese leaders and soliders whom we convicted of torture in post-World War II war crimes trials — among many others who were punished for similar offenses — that what they did merely “bordered on torture.”
UPDATE IV: In comments, a few people have cited the standard excuse offered by Obama loyalists in the past when it came to far worse Obama appointments: namely, that appointments don’t really matter because it’s Obama who will make the decisions. Applying that reasoning to the Johnsen appointment, these commenters contend, means there is no reason to consider it a positive sign because Obama is just free to ignore any and all advice she gives.
But that argument misapprehends the role and power of the OLC. That office does far more than merely dispense “advice” which Obama is free to disregard at will. See here for elaboration on why that is.
UPDATE V: Atrios points to an Op-Ed written by Leon Panetta earlier this year in which he aggressively criticizes the Bush administration for exploiting “fear” to justify torture, illegal eavesdropping and general presidential lawlessness. Panetta’s rhetoric is a bit restrained given the extremism he’s condemning — he’s no Dawn Johnsen — but, as Atrios says: “not bad for the Village.”
UPDATE VI: Spencer Ackerman reports that Sen. Dianne Feinstein is upset with the selection of Panetta, petulantly complaining that she wasn’t consulted in advance and that it would be best to have an “intelligence professional” in that position. CQ‘s Tim Starks reports that Sen. Jay Rockefeller is making very similar noises about this selection. Few things could reflect better on Panetta’s selection than the fact that Feinstein and Rockefeller — two of the most Bush-enabling Senators — are unhappy with it.