Thou Shalt Not Blog
Obama's OLC nominee discovers the perils of "blogging, advocating, and speeching."
The only other advocacy Johnsen is scolded for today is something she said or wrote about Justices John Roberts and Samuel Alito and their failure to answer questions at their confirmation hearings. Specter is not clear about the source for the quote. Johnsen seems to think it was a blog post. I cannot find it anywhere, although she did say something about a "stealth attempt to remake constitutional law" at a panel discussion.
Johnsen ultimately proves herself to be somewhat less radical than many of the Democrats on the committee might have hoped. She tells Feinstein that she will release classified OLC memos unless there are "compelling national security reasons" not to. When Sen. Sheldon Whitehouse, D-R.I., asks how the process for reviewing the previous OLC's flawed memos will unfold, she tells him she plans to "start with ones that may have ongoing application." Whitehouse stops her to say she needs to focus both on the ongoing memos and also on a "lookback" at those that were withdrawn. But Johnsen, like her bosses, is clearly more interested in moving forward. Sen. Lindsey Graham, R-S.C., asks whether we are "at war" with al-Qaida, and she says, "Yes, we are" the way some of us recited our wedding vows. She tells him that under the laws of armed conflict, we can hold the enemy until the end of hostilities.
But for those of us who have become accustomed in the past weeks to being grateful for half a loaf, Johnsen offers up three-quarters. She says torture is illegal and water-boarding is torture. She clarifies that the president may not order torture if duly enacted laws prohibit him from doing so. She opposes presidential abuse of signing statements. She says the OLC should have a preference for transparency. She pledges not to halt or interfere with the release of the impending Office of Professional Responsibility report about the competence of previous OLC opinions. And when Sen. Whitehouse describes the previous administration's OLC as "Dick Cheney's Little Shop of Legal Horrors," she cracks a grin.
David Kris, who is seeking confirmation as assistant attorney general for the National Security Division, gets off a good deal easier than Johnsen today. Particularly when Orrin Hatch, R-Utah, tells him, "I'm going to support you. You are extremely honest and extremely intelligent." But the other guy who gets off easy is John Yoo, author of the OLC's torture memo. Jeff Sessions concludes his questioning of Johnsen by noting sadly that Yoo really was the victim here. "He was asked something he shouldn't have been asked: How much power does the executive have?"
Yoo's answer to that query was, "Whatever it wants." Johnsen's is far more complicated. How she became tarred as the "radical activist" is a question nobody asks.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Dawn Johnsen courtesy Dawn Johnsen/Indiana University.