Mostly lost in the news about the retirements of Michigan House Democrat Bart Stupak and Justice John Paul Stevens was Dawn Johnsen's withdrawal from her nomination to head the Office of Legal Counsel, the office in the Justice Department whose job it is to tell the executive branch what is and isn't legal for it to do. Theoretically, the OLC is the first line of defense against executive overreach.
During the Bush administration, it temporarily became a rubber-stamp for whatever illegal policies the administration wanted to pursue -- including torture -- thanks to Jay Bybee, who is now a federal judge. Johnsen was a vocal and strident critic of how the OLC was run under the previous administration, and this made her controversial. The White House reportedly simply did not want to fight for her nomination.
The sad thing isn't that Johnsen would have made a fine head of OLC, which she would have. It's that being critical of former OLC attorney John Yoo is now an adverse career move for someone who wants to work at the Justice Department. (Even his apologists have to admit that Yoo exercised "poor judgment" in approving torture!) Now, believing that there are legal limits to what the president can do during wartime -- that the president can't, say, legalize torture -- is "controversial."
The sad reality is also that Johnsen was an appropriate nominee to head OLC back when the Obama administration had rhetorically committed to a sweeping change of the prior administration's national security policies. She would not have fit into an administration that has for the past year committed to maintaining the status quo. And for the past year, the White House has avoided fundamentally altering the trajectory of American national security policy.
Whoever eventually does run the OLC will have to have a legal philosophy that is more in line with the previous administration and the one currently in office than the one Obama had promised to lead. That's the big disappointment here.
-- A. Serwer
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