Why Dawn Johnsen should not be confirmed — rendition

In my initial post arguing that Dawn Johnsen should not be confirmed as head of OLC, I said that Johnsen has called for an immediate end of renditions and, during her confirmation hearings, refused to comment on the legality of the Clinton administration’s rendition practices. In his response to my post, Professor Neil Kinkopf states that Johnsen has not called for an immediate end to all renditions, only “extraordinary rendition.” Professor Kinkopf is correct, and I regret the error.

However, Johnsen has also made it clear that her definition of “extraordinary rendition” is pretty much all encompassing. In her contribution to the book “Change for America: A Progressive Blueprint for the 44th President,” Johnsen write (at page 283) that there should be no transfer of prisoners or detainees “to any country where there are reasonable grounds to fear risk of torture or other mistreatment.” Please note: not reasonable grounds to fear that there will be torture or mistreatment, but reasonable to fear “risk” of these things.

Given the “progressive” view of what constitutes torture, I question whether there is any country to which a detainee could be transferred where there is no reasonable ground to fear risk of “torture.” And I strongly doubt that there is any country where there is no reasonable ground for fear risk of “mistreatment,” even under a “non-progressive” understanding of that oh-so broad term.

Moreover, Johnsen did, as I wrote, refuse to comment on the legality of the Clinton administration’s rendition practices (this can be found in her response to written question #2 by Sen. Cornyn and written question #16 by Sen. Specter). I pointed this out in part to respond to Glenn Reynolds’ very reasonable question of whether, in an Obama administration, one could hope for an OLC head to the “right” of Johnsen on national security issues. My suggestion was that if Johnsen could not endorse the legality of key practices that passed muster during the Clinton administration, then we should not “assume that another nominee pulled from the pool of Democratic Justice Department veterans would be as bad.”

Johnsen excused her refusal to opine on Clinton era rendition policy this way: “I have not engaged in any study of the Clinton Administration’s rendition practices that would allow me to comment on their legality or advisability.” This answer seems disingenuous to say the least. Johnsen held senior positions in the Clinton Justice Department’s OLC, which would have had to sign off on the practices about which Johnsen now claims ignorance.

Only an aggressive left-wing partisan could criticize Bush administration practices and legal positions, the specifics of which she has no first-hand knowledge while claiming insufficient knowledge to opine on Clinton administration practices reviewed by the office where she worked. Even the liberal Democratic legal establishment can produce a substantially better nominee for OLC head than Dawn Johnsen.


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