Constitutional Law

Transition Team Focusing On Role Of Presidential Legal Advisers

The Justice Department’s Office of Legal Counsel (OLC) garnered a great deal of media attention and notoriety for its role in advising President George W. Bush on controversial counterterrorism methods, including the use of harsh interrogations by the CIA.  

USA Today reports that President-elect Barack Obama’s Justice Department transition team includes key members who have previously worked in the OLC and have voiced strong concerns about the OLC’s legal advice to Bush, which many consider wobbly at best. For example, the newspaper reports that Indiana University law professor Dawn E. Johnsen, a leader on the Obama transition team, has been “among the most publicly critical of OLC’s backing of President Bush’s counterterrorism measures, particularly on interrogation techniques.”

The newspaper also notes that Johnsen, a member the ACS Board of Directors, provided Congress with ideas for restoring the OLC, which is charged with providing legal advice to the president to ensure compliance with the Constitution and federal law.

“Johnsen, joined by 18 other attorneys who had worked at OLC, offered Congress 10 principles for the office, including timely release of opinions that might conflict with federal law,” reports USA Today. “Three of the other attorneys, who signed the statement, including Harvard University’s David Barron, also are on Obama’s Justice and Civil Rights transition team.”  

Earlier this year, Johnsen testified before a Senate Judiciary Committee panel about the OLC’s role in providing legal advice to the Bush administration on counterterrorism issues. “OLC has been widely and deservedly criticized for the substance of its legal interpretations, which at least at times have not reflected principled, accurate assessments of applicable legal constraints, but instead were tainted by the Administration’s desired policy ends and overriding objective of expanding presidential power,” Johnsen said.

In an article that is part of a broad ACS package of proposals and ideas for reforming legal and justice policy in the new administration, Johnsen writes that the next administration must take steps to ensure that the OLC serves as check on presidential power, not as a rubberstamp.

“OLC’s charge is to help the President achieve desired policies in conformity with the law, and that often involves actively devising alternatives to a legally flawed proposal. Because the President makes the final call and bears ultimate responsibility for legal determinations as well as policy choices, OLC’s advice should fully inform the President, as well as other readers, and address strong arguments counter to its conclusions,” maintains Johnsen.   

See the ACS Law and Justice page for Johnsen’s entire article, “All the President’s Lawyers: How to Avoid Another ‘Torture Opinion’ Debacle,” along with the other articles in the ACS package, “A Fresh Start for a New Administration: Reforming Law and Justice Polices.”

Full post as published by ACS Blog on November 21, 2008 (boomark / email).