As Tim noted earlier, Dawn Johnsen has been nominated to head the Office of Legal Counsel, which among other duties, offers legal advice to the president on constitutional issues. The office is meant to be a sort of internal check on the president's power, reminding him of what is legally within his authority to do. Under the Bush adminstration, which seems to have decided that all offices within the executive branch would do the opposite of what they were originally intended to do, the office was used to produce legal justifications for things like torture and warrantless surveillance of American citizens.
Judging from a very surface skimming of one of Johnsen's recent publications, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, she sees the Office of Legal Counsel quite differently from the way the Bush administration does:
Our recent history, though, has demonstrated the inherent inadequacies of the courts and Congress as external checks on the President. An approach of issue-by-issue review and oversight even by a vigilant judiciary and Congress will incompletely constrain a President who, in the name of national security, is willing to undermine the rule of law. This Article therefore seeks to elevate an essential source of constraint that often is underappreciated and underestimated: legal advisors within the executive branch.
[...]
On a daily basis, the President engages in decisionmaking that implicates important questions of constitutionality and legality. Whether to seek congressional authorization before committing the nation to war or other hostilities, what limits, if any, to set (or when set by Congress, to respect) on torture and other coercive interrogation techniques, when to publicly release information regarding the course of war or counterterrorism efforts—all are issues over which the President exercises enormous practical control, and all can profoundly affect individual lives and the course of history. The possibility of after-the-fact external review of questionable executive action is an inadequate check on executive excesses. Presidents also must face effective internal constraints in the form of executive branch processes and advice aimed at ensuring the legality of the multitude of executive decisions.
I'm not a lawyer, but my basic reading of this is that Johnsen views the OLC as an important first line of defense against overreaches of executive power, precisely because the other two branches can only respond to abuses after the fact. At first glance, Johnsen seems like a pretty solid decision for people concerned that an Obama administration might retain some of the Bush administration's lack of respect for civil liberties.
-- A. Serwer
