Fixing Justice: Don't Filibuster the Rule of Law

Column in the Philadelphia Inquirer on the threat to filibuster President Obama's nominee to head the Justice Department's Office of Legal Counsel.

April 9, 2009

Published in the Philadelphia Inquirer.

There is broad consensus that the Justice Department needs serious reform, and no part of the department needs it more than the Office of Legal Counsel - the office that brought us the infamous John Yoo memos justifying torture.

But some in Congress are threatening to derail reform by filibustering President Obama's eminently qualified choice to head the office. If they do, they will be voting against the rule of law and undermining national security in the process.

Small and usually unnoticed, the Office of Legal Counsel is nevertheless a singularly important office. It determines how the executive branch interprets and applies the law, issuing opinions that are binding on all executive-branch officials and employees. Government officials who rely on an office opinion can be certain the Justice Department will not prosecute them.

With great power comes great responsibility - in this case, to give frank, accurate assessments of the law. The office has a proud history of doing so with integrity and independence.

By all accounts, it abandoned that tradition under George W. Bush. It frequently operated as a political arm of the White House, dedicated to justifying policies regardless of what the law required. To this end, its lawyers stretched legal interpretations to the breaking point and ignored legal authorities that stood in their way.

The result was a series of opinions so poorly reasoned that the Bush administration was forced to renounce them and launch an ethics investigation of the office. Some of the more infamous opinions concluded that the president is not bound by U.S. laws prohibiting torture, and that the First and Fourth Amendments do not apply to domestic counterterrorism operations. They made a mockery of the rule of law.

Recognizing the urgent need to repair the damage done, Obama nominated Dawn Johnsen, a superbly qualified lawyer and scholar, to head the office. Johnsen's writings as a law professor have focused on issues of constitutional interpretation that are of particular relevance to the Office of Legal Counsel. She was an attorney there herself, and ran it for two years under Bill Clinton. In marked contrast to recent history, Johnsen's stewardship of the office won widespread respect, and former colleagues have come forward in droves to sing her praises.

Johnsen also has been a forceful voice for restoring the office's lapsed commitment to the rule of law. She helped draft a statement of principles that included such basic notions as "OLC should provide an accurate and honest appraisal of applicable law" and "OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the president)." Johnsen decried the office's transformation into a rubber stamp, expressing outrage at its manipulation of the law to condone torture.

A few senators have seized on Johnsen's outrage to oppose her nomination. They argue that her condemnation of the torture memos and other office missteps betrayed insufficient commitment to fighting terrorism and a lack of "requisite seriousness," in the odd phrasing of Texas Sen. John Cornyn. Their arguments appear to have affected Pennsylvania's influential senior senator, Arlen Specter, who has said he needs more time to make up his mind about Johnsen.

But these objections could not be more off the mark. The office's purpose is to ensure U.S. policies adhere to the rule of law. The strength of Johnsen's commitment to that principle is conclusive evidence of her "seriousness" and fitness to lead the office.

Moreover, the idea that respect for the rule of law is at odds with fighting terrorism is profoundly misguided. The rule of law is in fact one of our strongest weapons against terrorism, because the battle for the hearts and minds of potential al-Qaeda recruits ultimately turns on the strength of our values and our ability to present a positive vision of what we stand for.

Indeed, by trying to block a well-qualified candidate based on her commitment to the rule of law, Johnsen's opponents are themselves showing a lack of due regard for national security in a much more immediate sense. Obama faces difficult legal questions as he reformulates counterterrorism strategy, and he will surely consult the new head of the office before moving forward on significant policies. Delaying the filling of this position means delaying the development of counterterrorism policies that keep us safe.

Johnsen's nomination will likely come to the Senate floor after Congress returns from its Easter recess. Let's hope enough senators possess the "requisite seriousness" to recognize the stakes and support this nominee.