MARCH 4, 2009
No former Bush administration official has been more vilified as a torturing monster than John Yoo. And, for years, one of Yoo's most severe critics has been former Clinton Justice official Dawn Johnsen. Last April, Johnsen called Yoo a "rogue legal adviser," declaring that the "shockingly flawed content" of one of his notorious memos justifying torture--along with the "horrific acts it encouraged ... all demand our outrage." Her attacks were so fervent, in fact, that Mother Jones branded her the "anti-Yoo." Now, in a novelistic turn, the anti-Yoo will be responsible for defending her bete noir. Johnsen has been nominated to head the office where Yoo worked, the Office of Legal Counsel (OLC) in the Justice Department, and one of her main responsibilities will be to decide whether or not to investigate and prosecute Yoo and other Bush officials for their conduct in the war on terrorism.
Conservatives are apoplectic about Johnsen: The Wall Street Journal compared her nomination to "naming a conscientious objector as head of the armed forces. " Attacking her as "President Gulliver's Lawyer," the Journal went on to depict Johnsen as a crusader against executive power, who "seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes." But the charge is unfair. While many liberals (and perhaps Johnsen herself) might take emotional satisfaction in the prosecution of Yoo, she has made a commitment--at least in the context of torture prosecutions--to protect executive power, a commitment that may, oddly enough, make her one of John Yoo's most important advocates.
Based on Johnsen's impeccable liberal credentials, it's easy to see why conservatives would fear her positions on executive power. After Yale Law School, she worked at the aclu's Reproductive Freedom Project and then was legal director of naral before going on to serve for five years in the Clinton OLC.
But, under Walter Dellinger's leadership, the Clinton OLC was hardly opposed to executive power, and Johnsen embraced the bipartisan traditions of the office, where she succeeded Dellinger as acting head in 1997. She proved her political independence, for example, by denying the Immigration and Naturalization Service's request to waive the oath of allegiance requirement for mentally disabled applicants for citizenship. (Although the waiver was politically popular, Johnsen concluded it violated federal law.) Moreover, she also demonstrated a respect for the practice of signing statements, where the president reserves the right to refuse to enforce laws he believes are unconstitutional. Johnsen has said she advised President Clinton that he had the power to refuse to enforce a provision in a $265 billion military authorization bill requiring the armed forces to discharge HIV-positive members. "Bush's abuses notwithstanding, in relatively rare circumstances, Presidents do have the authority to refuse to comply with statutes," she has written.
In Johnsen's view, signing statements, judiciously deployed, are perfectly defensible--a position that puts her at odds with the American Bar Association, which has condemned the use of signing statements in all circumstances. In her opinion, Bush's error wasn't that he insisted on the president's power to make independent constitutional judgments, but that he failed to explain his constitutional objections in open, transparent ways that Congress and the courts could review and debate. Johnsen criticizes Bush's signing statements for being "so abbreviated and vague that the precise nature of his objections .. . remained hidden from public scrutiny."
Moving forward, a question that will occupy Johnsen and her colleagues at Justice is whether to prosecute or investigate Yoo's OLC for issuing the torture memos, and what to do about CIA operatives who followed his advice. The issue hinges on whether giving or relying on erroneous legal advice should be a criminal offense. And, in both cases, Johnsen and the Justice Department have made clear that Yoo and those who acted on his advice should not be prosecuted.
Even before Johnsen's confirmation, the Department of Justice has already signaled its intention to defend Bush administration officials who are being sued for their legal advice, upholding the bipartisan principle that erroneous legal advice shouldn't be criminal. The Justice Department has already asked a San Francisco judge to dismiss a lawsuit against Yoo brought by a Yale Law School human rights clinic representing alleged dirty bomber Jose Padilla. As for prosecuting the CIA, human rights groups and Representative John Conyers are pressing the department to expand the mandate of special prosecutor John Durham, who is already investigating whether the CIA acted illegally when it destroyed interrogation videotapes. But the DOJ seems likely to resist these requests, unless specific evidence emerges that the CIA engaged in torture that went beyond the waterboarding whose legality OLC approved.
Johnsen agrees with her new employers that the CIA should not be punished for relying on Yoo's legal advice: "For decades prior to this administration, OLC legal opinions were treated by the executive branch as authoritative unless overruled by the AG or the President," she wrote on the IntLawGrrls blog. Therefore it would be "very hard" to say "that it was unreasonable for CIA career employees to rely on what OLC and the White House instructed that the law permitted." In Johnsen's opinion, any investigation should avoid focusing on "the criminal culpability of the career guy who engaged in waterboarding/ torture in reliance on the horrific legal advice," an approach she called "the wrong way to go."
Johnsen's positions suggest that she would be open to a middle ground about torture prosecutions. She opposes those who demand prosecutions before knowing the facts, as well as those who are ruling out the possibility of prosecutions entirely. "The next AG should investigate what happened" in connection with waterboarding, she has written. "OLC misinterpreted the law in a way that led to torture. No question that demands investigation." Johnsen didn't specify her preferred approach, but one possibility would be to follow Senator Patrick Leahy's suggestion of setting up an investigative commission modeled on the Church Committee, the 1975 congressional investigation into CIA and FBI abuses that led to the passage of the Foreign Intelligence Surveillance Act. Properly constrained, a congressional investigative commission could avoid the prosecutorial witch hunt that Obama is determined to avoid. ("If there are clear instances of wrongdoing," he said in his first press conference, "people should be prosecuted just like any ordinary citizen; but, ... generally speaking, I'm more interested in looking forward than I am in looking backward. ") Witnesses could be granted immunity from prosecution to the degree that they relied in good faith on OLC opinions, leaving open the possibility of prosecution only for freelance torturers. As Johnsen has written, "It is conceivable that such an investigation would uncover facts that could support a prosecution, but that is not true of what we know today."
Johnsen's positions on other questions involving executive power are harder to predict. But all of her writing suggests that Johnsen, no less than her DOJ colleagues, is ready to assure witnesses that they will be staunchly defended by the OLC as long as they relied in good faith on the OLC's advice. That's why Yoo should be relieved, rather than apprehensive, that the OLC will soon be headed by the woman who has declared that his "bogus constitutional arguments for outlandishly expansive presidential power" demand nothing less than "outrage." Although she may not be John Yoo's best friend, she could turn out to be his best defender.