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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.

Published: 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.