Why Dawn Johnsen should not be confirmed — preventive detention of terrorists

In my initial post about Dawn Johnsen, I wrote: “It is doubtful [Johnsen] believes that the president has to power to preventively detain terrorist suspects. In her testimony to the Senate Judiciary Committee, Johnsen refused to state her view on this crucial question.”

Professor Neil Kinkopf has challenged my statement. He claims that “Johnsen provided detailed written testimony on this point.”

In fact, however, Johnsen’s response to Sen. Specter’s specific question about preventive detention is a pure evasion. In written question #12, Specter asked:

Do you believe the United States has the power to preventively detain terrorist suspects?

a. Must such detentions occur in the United States?

b. Does the United States have no authority to detain except after Article III court determination?

Question b contained five sub-questions.

Johnsen answered as follows:

Some of the important questions you raise concern matters of policy, as to which which OLC would not be the decision-maker. With respect to the legal questions, I have not studied them sufficiently to form an opinion.

Johnsen went on to say she would “follow OLC’s traditional methods of interagency consultation before forming an opinion,” and then referred to an interagency task force that “through its work may provide answers to some of the questions you raise.”

Clearly, then, Johnsen refused to state her view on the power of the United States to preventively detain terrorist suspects. Professor Kinkopf relied on her answers to different, though related questions about what to do with those already detained at Guantanamo Bay and whether we can hold enemy combatants.

Johnsen’s claim that she has not studied the legal questions raised by Sen. Specter sufficiently to form an opinion seems disingenuous. These are matters with which the OLC, where she served for years, has a central involvement. As Kinkopf notes, Johnsen was willing to opine on several related matters and, indeed, was willing publicly to denounce the Bush administration’s handling of terrorist detention issues in a number of contexts.

Johnsen’s unwillingness to affirm the basic proposition that “the United States has the power to preventively detain terrorist suspects” should weigh heavily against her confirmation.

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