Why Dawn Johnsen should not be confirmed

Douglas Kmiec argues in favor of the confirmation Dawn Johnsen. The piece is subscription only and, in any case, Kmiec should not be taken seriously. Not only is he intellectually dishonest, he apparently is not even capable of telling the truth about his own credentials.

However, two estimable law professors, Jonathan Adler and Glenn Reynolds, also maintain that Johnsen should be confirmed. Adler doubts that Johnsen’s blog postings and casual remarks are good measures of her merit as a nominee. He also thinks she will effectively resist political pressure on the Office of Legal Counsel. Glenn too believes that Johnsen will be independent and, in any event, finds it unlikely that President Obama will select anyone better if Johnsen is derailed.

Here’s why I think the Johnsen nomination should be derailed. Over the next four to eight years, the Justice Department will repeatedly be asked to advise on the legality of programs and measures designed to combat terrorism. It is important that the individuals providing this advice not err on the side of nixing these programs and measures. Otherwise, innocent lives probably will be lost and terrorists may well regain their momentum (recall, for example, that the Reno Justice Department nixed plans to take out Osama bin Laden).

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. This fear is not based solely on her blogging; it also stems from her law review articles and, to a lesser extent, statements she has made or declined to make during the confirmation process.

For example, Johnsen has objected to warrantless surveillance of suspected al-Qaeda communications into and out of the United States. The special appellate court created by Congress to review executive branch surveillance programs upheld the foreign wiretap activities of the Bush administration that Johnsen had denounced as based on “an extreme and implausible Commander-in-Chief theory.” Even so, during the confirmation process Johnsen has said that “she hold[s] to [her[ criticisms.”

Johnsen’s position on this matter is consistent with a recurrent theme in her writings, namely that executive branch lawyers should bind the government’s hands in ways that the courts have declined to do. That theme, in turn, is consistent with certain regrettable actions of the Clinton Justice Department, as when it erected a “wall” separating law enforcement and intelligence operations on the theory that the Department “should go beyond what is legally required.”

Johnsen has also attacked the Bush administration’s decision to hold enemy combatants. Indeed, it is doubtful she 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.

Johnsen also ducked the question of whether renditions are lawful. The Clinton administration Justice Department must have thought that they are, since the Clinton administration regularly used this tool, presumably with DOJ sign-off. And Leon Panetta, the new CIA director, has refused to rule out renditions going forward. But Johnsen has called for an “immediate end” to the practice and, during her confirmation hearings, refused to comment on the legality of the Clinton administration’s rendition practices.

But what of Glenn Reynolds’ argument that Obama is unlikely to select anyone to the “right” of Johnsen on these matters? Certainly, there are no assurances that Obama will do better if given a second bite. However, there are liberal lawyers who are better than Johnsen on these issues.

As noted, the Clinton Justice Department did not nix renditions; to the contrary, it must have signed off on them. The Clinton Justice Department (in the person of Jamie Gorelick, no less) also defended the president’s authority to “conduct warrantless physical searches for foreign intelligence purposes” and concluded that the president “may delegate this authority to the Attorney General. For that matter, the Clinton Justice Department detained some Cuban refugees at Gitmo and, when challenged, successfully argued that because the refugees were being held in Gitmo, they had no cognizable constitutional rights. This is the position that Johnsen characterized in a Boston University Law Review as radical and unprecedented.

Johnsen, then, appears to stand outside the mainstream of even liberal thinking on many of the legal issues relating to the war on terrorism. Though I’m sure she is hardly alone, I don’t assume that another nominee pulled from the pool of Democratic Justice Department veterans would be as bad.

What about Johnsen’s writings in which she insists on the OLC’s independence from political pressure? First, I don’t see much reason to believe that Johnsen’s statements embracing such independence were anything more than a club with which to attack President Bush and, perhaps, a means of getting noticed. Second, I don’t share Glenn’s optimism that Johnsen’s past writings about OLC independence will constrain her from bowing to political pressure. Johnsen can always claim that her support of a politically driven position is based on her independent legal analysis, not politics.

More fundamentally, I don’t see the benefit in having an ideological leftist providing her independent legal analysis. In this regard, we should keep in mind that Johnsen’s legal leftism is not confined to national security issues. Her intemperate remarks on the issue of abortion are well-known. Johnsen also lashed out at Indiana’s state voter identification law, claiming that it had nothing to do with voter fraud and everything to do with preventing “certain kinds of people” from voting. Yet the Supreme Court had upheld the law 6-3 in an opinion written by Justice Stevens.

An OLC independent from politics is a fine thing, but not so much when the independent judgment is driven by hard-line leftist doctrine. And certainly not when much of that hard-left doctrine applies to issues of national security.

Dawn Johnsen should not be confirmed.

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