Constitutional Law

Dawn Johnsen: "OLC Has Been Terribly Wrong to Withhold The Content of Much of Its Advice From Congress"

Today, ACS Board Member Dawn Johnsen testified on “Secret Law and the Threat to Democratic and Accountable Government” before the Senate Judiciary Committee’s Subcommittee on the Constitution. A transcript of her prepared remarks is available here (video is forthcoming). Professor Johnsen served as Acting Assistant Attorney General, heading the Department of Justice’s Office of Legal Counsel (OLC) during the Clinton administration.

In her testimony, Professor Johnsen condemned the role that the OLC – which provides legal advice to the Executive Branch to make sure it complies with the law – has played regarding counterterrorism issues in the Bush administration. She testified:

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. In addition, OLC has been terribly wrong to withhold the content of much of its advise from Congress and the public­—particularly when advising the executive branch that in essence it could act contrary to federal statutory requirements.

Professor Johnsen cites with approval a document signed by 19 former OLC lawyers (including herself), entitled “Principles to Guide the Office of Legal Counsel,” which describes how the OLC should function. Among the principles is a requirement for the OLC to publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure. In addition to failing to meet that standard, she explained that the OLC has failed to satisfy the most important principle of all:

OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

Professor Johnsen has also authored a law journal article that fleshes out these principles in light of the “torture” memo. ACS has more on the role of the Department of Justice and separation of powers generally.

The Sunlight Foundation’s blog has more, as does FireDogLake and The Guardian. In addition, in the video below, Chairman Feingold discussing the hearing.

Full post as published by ACS Blog on April 30, 2008 (boomark / email).