It looks like Dawn Johnsen’s nomination to head the Justice Department’s Office of Legal Council (OLC) is back on track. The reason is not that difficult to guess — under pressure in the Democratic primary, Arlen Specter is now prepared to vote for Johnsen, and that, most likely, gives her 60 votes. Ben Nelson may still be opposed to Johnsen (pending whatever kickback the Dems might offer his state), but Richard Lugar, the helpful Hoosier, seems to be in Johnsen’s corner.
In response to this development, all seven Republican members of the Senate Judiciary Committee have written a letter to the Committee’s chairman, Sen. Leahy, calling for a second round of hearings on the nomination. The seven Senators — Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and Coburn — point to the recent incidents of terrorism and attempted terrorism in the U.S. They contend that, given OLC’s central role in authorizing action to combat terrorism and Johnsen’s limp record on some of the issues pertaining to such authorization, the Committee needs to revisit with the nominee her approach to these issues.
The seven Republican Senators write:
We believe many unanswered questions remain about Dawn Johnsen’s suitability to guide our Nation’s legal response to the war on terror through the Office of Legal Counsel. Mrs. Johnsen’s record calls into question her dedication to aggressive Executive action in national security matters. She has supported backward-looking investigations and wirtten that the last administration’s detainee policies “failed miserably.” She has consistently advocated placing unnecessary constraints on the President and our intelligence professionals, constraints not required by our laws or Constitution.
Based on her statements, it is unclear whether Ms. Johnsen would be able to set aside her personal biases and provide the type of objective, yet aggressive, constitutional legal advice the President will need to effectively combat the continued terror threat. Accordingly, we ask that you hold a new hearing on her nomination before scheduling her nomination for a Committee vote.
We do not make this request lightly, but feel compelled to do so based on the nominee’s record and the position to which she has been nominated. In recent years, the OLC has been critical in authorizing appropriate government action to combat al Qaeda. For example, the Clinton administration OLC reportedly determined as a matter of law that the Executive Order banning assassinations did not apply to the targeting of top al Qaeda leadership, a ruling that appears to have been vital to CIA efforts in the 1990s and even America’s aerial drone program today. It is critical that OLC be led by a lawyer who is willing to support and authorize all necessary and appropriate action in our Nation’s continued war against al Qaeda.
The Senators are right to question Johnsen’s record on issues relating to fighting terrorism. And they are right to call for new hearings. Johnsen should either testify about her view of the legal landscape regarding the war on terrorism or her nomination should not go forward. If the Democrats on the Committee let Johnsen avoid additional questioning about her views relating to fighting terrorism, they will confirm their lack of seriousness on these issues.
For his part, President Obama would be well-advised to keep a close eye on the Holder Justice Department, with or without Johnsen. If the next attempt at terrorism in the U.S. succeeds, the public will not take kindly to OLC rulings that limit the government’s power to prevent such attacks.