President Obama has every right to appoint government officials who are even more liberal than he is. As he famously told Republican lawmakers who were skeptical of his stimulus plan, “I won.” But Obama has an obligation to the American people to appoint people who are qualified for the job.
The post Obama has nominated Dawn Johnsen for requires her to be what those in the Justice Department refer to as a “real lawyer.” That means a lawyer who dispassionately cites and weighs facts and legal precedents before coming to a conclusion, one that is not tailored to please superiors and that will hold up in court.
A look at Johnsen’s statements suggests her extreme political bias will prevent her from doing that.
On paper, Dawn Johnsen is qualified to head the Justice Department’s Office of Legal Counsel, which is supposed to give impartial legal guidance to the president and executive branch agencies. A professor of law at Indiana University, she was acting assistant attorney general in charge of that office under President Clinton.
But Johnsen’s comments during a panel discussion of the American Constitution Society for Law and Policy at the National Press Club on Oct. 10, 2007 provide a good illustration of what she will bring to her position. In a rant that the press has never picked up on, Johnsen started off by claiming President Bush had failed to faithfully execute the laws.
“President Bush, and you have to also mention his Vice President Cheney on this, they’ve
set a tone of disregard for the rule of law and especially disregard for statutes enacted by Congress and Congress’ role generally in our system,” Johnsen said.
Citing two books, one by Jack Goldsmith, who once headed the Office of Legal Counsel under Bush, and “other reports,” Johnsen said they “confirm that President Bush, Vice President Cheney, and their top advisors . . . have been deeply hostile to any checks on their counterterrorism policies. And so that’s not only external checks from the courts and from Congress or from public advocacy groups or the press, even legal checks from within the executive branch, from the president’s own lawyers.”
As an example, Johnsen said that for years, the “Bush administration engaged in spying here in the United States without complying with the [Foreign Intelligence Surveillance Act] statute’s warrant requirements.”
If confirmed by the Senate, Johnsen’s legal opinions will be legally binding on the government. Only the attorney general and the president will have the power to overrule them. In the past, the office Obama has nominated her for was held by future Supreme Court justices William Rehnquist and Antonin Scalia. Yet Johnsen cited as evidence for her claims two books and unspecified “other reports.”
Moreover, in contrast to Johnsen’s characterization of his views in his book, Goldsmith himself has said in interviews that while he thought the Bush administration should have sought authorization from Congress for some of its programs, Bush was motivated by a desire to protect the country. And Goldsmith has pointed out that a Congress controlled by Democrats subsequently endorsed and continued many of those same counterterrorism measures.
That approval is not surprising. Before 9/11, if Osama bin Laden were calling an operative in Manhattan to set off a nuclear device, and the National Security Agency intercepted the conversation, NSA was supposed to ignore the identity of the individual in the U.S. and not report the details to the FBI.
Citing his authority under Article II of the Constitution to protect the country as commander-in-chief, Bush declared after 9/11 that those conversations could be intercepted without the need for a FISA warrant and would be reported to the FBI.
In addition, if the person being called began making calls overseas, NSA could listen in to those calls as well as to bin Laden’s original call.
“Before 9/11, I used to battle NSA,” Art Cummings, who heads counterterrorism at the FBI, told me for my book “The Terrorist Watch: Inside the Desperate Race to Stop the Next Attack.” “You can't go back and ask for a FISA for a conversation that’s already occurring . . . When they pick up on a U.S. conversation, they can’t tell these two guys who are talking — Hey, hold on a minute while we go get a FISA. A conversation is a conversation; it happens, and then it’s lost.”
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Contrary to Johnsen’s claim that Bush rejected any outside checks on the NSA intercept program, Bush disclosed the program at its inception to the Foreign Surveillance Intelligence Act Court, to congressional leaders, and to NSA’s inspector general.
In addition to these safeguards, in approving the NSA intercept program, Bush set up a Justice Department review process, which retroactively examines the intercepts to insure that the program is being carried out according to the terms of the president’s authorization.
As a result of the program, the FBI obtained a window on possible al-Qaida activities in the U.S. This is the program that Johnsen contemptuously referred to as “spying.”
“We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists,” Johnsen raved on Slate.com. “We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals.”
Johnsen is entitled to her opinion that Bush is the devil. But her “nasty, partisan vitriol,” as Sen. John Cornyn, R-Texas, has put it, is “unworthy of someone who aspires to hold such an important job within the U.S. Department of Justice.”
In short, the job of heading the Office of Legal Counsel requires a real lawyer — not a spin doctor.
Ronald Kessler is chief Washington correspondent of Newsmax.com. View his previous reports and get his dispatches sent to you free via
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