Jan 6, 2009 9:56 PM
Change I Can Believe In
We used to be a country of laws, not of men. We used to dismiss those that claimed, if the president does it, it’s not illegal. Over the last 8 years all of that changed. Reversing that became the change we all looked for.

Underneath the wars in Iraq and Afghanistan, the handling of combatants taken off the battle field, the interrogation, rounding up, and holding of American citizens without due process, underneath all of this were decisions made by the Office of Legal Counsel (OLC). This is an office in the Department of Justice that by definition is supposed to tell the president what he can and can not do legally.

Over the last 8 years, BushCo found a friend in the OLC in John Yoo. He wrote the torture memo, which declared that the President’s power to torture detainees is virtually limitless. Backed by Cheney’s long time attorney and advisor, David Addington, as well as Gonzo, were all part of the team of lawlessness.

Well, yesterday President Elect Obama named a few people to his new administration that in and of itself show change I can believe in. He named 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.

She was a vocal critic of BushCo, and the OLC in particular. Here are a few quotes from articles she published over the last few years:

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.

About the Bush administration’s violations of FISA she wrote:

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.

About the serial lawbreaking she wrote:

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.

This appointment is different than most other appointments made by Obama. In the other appointment, like Secretary of State, or of Defense, those positions take the lead from the executive, or Obama is the change that they must follow. In the OLC though, once appointed, they read the law, and tell the executive what they can, and can not do. So, unless Obama pulls a Bush (or Cheney) and co-ops the OLC by finding one with low morals like Yoo, we will see the change we all hoped for in the new administration.

Is it January 20th yet?

Peace,
J