returning to law

Dawn Johnson is Obama’s choice to run the OLC. Her recent work has thoughtfully confronted the excesses of the “unitary executive” argued for by Bush’s legal counsel, and more importantly, has gestured at a way forward. In a 2007 article titled “Faithfully Executing the Laws: Internal Legal Constraints on Executive Power” she argued:

Since September 11, 2001, the Bush Administration has engaged in a host of controversial counterterrorism actions that threaten civil liberties and even the physical safety of those targeted: enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance. To justify otherwise unlawful policies, President Bush and his lawyers have espoused an extreme view of expansive presidential power during times of war and national emergency.

Johnson’s article is a specific repudiation of the ways in which the Bush administrations legal approach to interrogation undermined power-sharing institutions and the rule of law. The lawyers that Johnson refers to included John Yoo, the head of OLC under Bush. His arguments supporting “near monarchical”  wartime and emergency power were not just influential. As Jane Mayers details in her incisive The Dark Side, the OLC’s constitutional interpretations are binding on the Department of Justice, and executives making a good-faith effort to follow abide by the OLC’s counsel are immune from most legal penalty, even should the Supreme Court later invalidate them.

In terms les wonky, the OLC was one of the key instruments for the removal of political and legal checks on executive power. The choice of Johnson suggests that Obama will confront the corrupt executive machinery developed under the Bush administration. No executive likes to surrender power, so there has been much justified trepidation as to whether or not Obama would dismantle the legal machinery of Bush’s War on Terror. With Johnson at the OLC’s helm, there is hope that justice and constraint will be introduced into what has recently been transformed into a field of naked power.

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~ by staticandme on January 5, 2009.

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