Why Dawn Johnsen should not be confirmed — a partial response to Professor Kinkopf

Neil Kinkopf, a law professor at Georgia State University, takes issue with my most recent post about Dawn Johnsen, the nominee to head the Justice Department’s Office of Legal Counsel. I won’t be able to respond to Professor Kinkopf’s entire post tonight; rather I will focus on his critique of my central point that “there is strong reason to believe that Dawn Johnsen will consistently err on the side of protecting terrorists and denying the president the power to protect the nation.”

The point is central because if she is confirmed, Johnsen will likely be called upon to provide advice as to the legality of a variety of measures designed to combat terrorism. If the past 16 years are indicative, many of these issues will be novel ones. To the extent there is Supreme Court precedent, it may well be of World War II vintage or older, and thus not necessarily robust. If the administration proceeds with a particular measure and it is challenged, judges will likely disagree on its legality, both at the lower and intermediate court level and when the case gets to the Supreme Court.

More importantly, innocent lives will be at stake. The Clinton Justice Department’s decision to nix a strike against Osama bin Laden might well have cost several thousand Americans their lives and led to whatever civil liberties infringements the left believes resulted from the response to 9/11. A decision not to engage in a particular form of surveillance may result in the failure to obtain information that would enable us to avoid another 9/11 or an even more deadly attack. A decision to release a given terrorist may result in the death of dozens of innocent people if that terrorist returns to action as a suicide bomber or a commander of insurgents in Afghanistan.

Kinkopf denies that Johnsen will consistently err on the side of nixing measures to combat terrorism, notwithstanding her consistent and strident opposition to the decisions of the Bush administration on issues of first impression as to which judges and Justices ultimately could not agree. Here is what Kinkopf writes:

Johnsen has urged critics of the Bush Administration to be careful and focused, cautioning them not to let their disagreement with Administration policies lead them to a weak view of executive authority. “Regardless of who proves correct about the general post-Bush direction of presidential power,” she has written, “there is some risk that reactions to the Bush experience–public sentiment, political considerations, or mistaken constitutional understandings–might distort criticism and harm legitimate and valuable executive powers. Commentators certainly should not mute their principled criticism, but they should avoid imprecise and over-generalized reactions that might undermine the ability of future Presidents to exercise legitimate authorities.”

But Johnsen’s statement that she does not wish to “undermine the ability of future Presidents to exercise legitimate authorities” tells us nothing about her view of what those “authorities” are in the context of the war on terror. Thus, the statement upon which Kinkopf relies is empty.

More telling is the fact that Johnsen, in a 2004 contribution to the American Constitution Society, questioned whether our efforts to combat terrorism should be considered a war and argued that “the traditional war powers of the president should not be invoked to protect Americans in this unprecedented global conflict against terrorism.” This premise virtually assures that Johnsen will err on the side of restricting our options for taking on terrorists.

The left understands this well enough. Professor Laurence Tribe has said: “‘One of the refreshing things about Dawn Johnsen’s appointment is that she’s almost a 180-degree shift from John Yoo and David Addington and (Vice President) Dick Cheney.” To those who believe with Professor Tribe (and perhaps Professor Kinkopf) that Vice President Cheney got all of controversial legal calls wrong, Johnsen is, indeed, refreshing. To those like me who believe he got many of them right, Johnsen is a threat to our national security.

To those in or near the middle, her nomination should also be a source of concern. For American lives are potentially at stake whenever the OLC gives the thumbs down to measures designed to root out or detain terrorists or to determine what they are up to. Accordingly, a broad range of Americans should hope for an OLC head whose views on these matters show true balance, not the illusion of balance presented in Johnsen’s vacuous statement that the president should be able to do what is “legitimate” for him to do. . .

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