Wednesday, February 25, 2009

OLC Chief Nominee Johnsen Before the Senate Judiciary Committee

The Senate Judiciary Committee held a hearing today to consider President Obama's nomination of Dawn Johnsen to serve as Assistant Attorney General for the Office of Legal Counsel.  (The webcast is here.)

As part of the materials in support of Johnsen's appointment, the Committee considered several letters from law professors, including Johnsen, submitted to the Judiciary Committee in the Bush administration and Johnsen's testimony before the Committee on "Secret Law" in the Bush administration.  If you haven't seen (or signed) these, take a look.

The first letter (July 9, 2007) responds to the Bush administration's Statement of Administrative Policy on The Local Law Enforcement Hate Crimes Prevention Act of 2007.  The SAP raised concerns about Congress's authority to enact the law, which would have prohibited violent crimes motivated by the race, color, religion, or national origin of the victim.  The letter set out the case for why Congress had authority under Section 2 of the Thirteenth Amendment.

The second letter (January 17, 2007) made the case for Congressional authority to affect President Bush's then-planned troop surge in Iraq.  The letter:

These provisions [Article I, Sec. 8 authorities related to war] plainly set forth an extensive role for Congress that goes far beyond the initial decision to declare war and subsequent decisions regarding its funding.  This mass of war powers confers on Congress an ongoing regulatory authority with respect to the war.  Indeed, these powers are so extensive that Chief Justice John Marshall opined (with some exaggeration, when read out of context) that "[t]he whole powers of war [are], by the Constitution of the United States, vested in Congress . . . ."  As Commander in Chief, the President's role is to prosecute the war that Congress has authorized within the legitimate parameters Congress sets forth.  Congress has exercised precisely this power to define the parameters of armed conflict or war on a number of occasions, some of which concern recent military engagements.

Johnsen's testimony deals with OLC's proper role as legal adviser to the executive branch and those instances when advice should be kept secret.  Johnsen:

There are circumstances, of course, in which the executive branch should keep OLC advice secret.  In extreme cases, the release of an OLC opinion could gravely imperil national security.  Congress should respect the President's genuine needs for secrecy.  But so, too, should the President respect Congress's need to know how--even whether--the executive branch is enforcing existing law.  It is fundamental that if OLC advises the executive branch that it may disregard an applicable legal restriction--whether in the Constitution, a treaty or a statute--because a presidential prerogative trumps the law, OLC virtually always should make that legal interpretation public.

Johnsen's testimony incorporates the famous Principles to Guide the Office of Legal Counsel, authored by 19 former OLC attorneys.

This material has been around a while, and nothing in it is a particular surprise, but it makes great reading on a wide range of hot-button issues from the Bush administration. 


Congressional Authority, Executive Privilege, War Powers | Permalink

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