Johnsen on the Role of OLC:
Professor Dawn Johnsen, tapped by President-elect Obama to head the Justice Department's Office of Legal Counsel, has quite a few thoughts on the OLC's institutional role as an enforcer of the rule of law and an intra-executive branch check on executive branch excesses. See, for instance, her article "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power" from the UCLA Law Review. Among other things, the article addresses how internal interpretive process and standards at OLC can foster or undermine adherence to the rule of law within the executive and includes, as an appendix, a set of principles to guide OLC's work. With Johnsen poised to take the helm at OLC, it's definitely worth a look. [Hat tip: Hilzoy]
So you don't consider Jack Goldsmith a "real lawyer"?
So when you say "a real lawyer," you mean a lawyer in an administration without David Addington and Dick Cheney?
Being a disbeliever in Platonic essences, I never find this trope very persuasive, but I guess others do.
Goldsmith, cutting wit and all, gave up.
I'm sure the NYT praised his book though.
After all, it's been the modus operandi for OLC since before the Bush Administration that OLC basically blesses whatever the President wants, no matter how strained the legal argument. That was made completely clear to me when Clinton's OLC blessed the Kosovo war by saying Clinton didn't need to comply with the War Powers Act's requirement to stop the war after 60 days if it wasn't authorized when Congress voted an and failed to pass an authorization for the war. OLC's ludicrous justification for ignoring the WPA was that Congress had authorized the war by appropriating money for the action -- even though the War Powers Act explicitly states that appropriating money is not to be considered an authorization for war under the WPA. It's been clear to me for a while, then, that the idea that OLC is supposed to give independent legal advice constraining the President's actions is an outright joke. That's not been the case for at least a decade. And Dawn Johnsen was part of that Clinton OLC that failed to constrain the executive any more than the Bush OLC did.
But, as I say, we'll see.
For all the howling that the Left has done over the past 8 years that the President can't ignore the laws written by Congress, Obama's pick for OLC confirms that Bush (Yoo/Cheney/Addington/etc.) was perfectly correct in stating that he can.
Good things to know!
According to Marty Lederman (somewhere at Balkinization, I believe; don't have time to look for it now), it did. I believe one of the issues (going off memory here) was the time frame as well, i.e., when the 60 day period began and ended.
This doesn't appear to be a fair interpretation of her "principle #5." I don't read her as making any normative judgment about Presidents ignoring statutory requirements. Rather, she states:
Instead, what she is saying is that Presidents sometimes do refuse to enforce statutes that they believe are unconstitutional and that, when they do so, at least they should be transparent about it.
Some would call that correct understandings of the Constitution.
But of course, you are wrong too claim that this is what the Left has objected to, since that would drag the conversation into complex discussions about the structure of the Constitution where there is very little settled law. Instead, the Left has most often simplistically claimed that the President must follow statutory law until it is struck down by a court. And it is good to know that Obama's OLC pick believes that this isn't the case - she claims that the President can in fact ingore statutory law regardless of whether the matter has been settled in court. If only I had known this fact over the past X years of discussion threads!
If Clinton's OLC did, it sure is odd that the memo I linked above doesn't mention anything about that determination.
If she didn't think it is lawful for a President to ignore a statute (absent a court ruling striking down the statute) ever, one might reasonably ask why she just calls for disclosure of such illegal acts.
From the same point (#5) is this quote:
"Indeed, federal law currently requires the Attorney General to notify Congress if the Department of Justice determines either that it will not enforce a provision of law on the grounds that it is unconstitutional or that it will not defend a provision of law against constitutional challenge."
Which suggests the question: If Congress didn't think it is lawful for a President to ignore a statute, one might reasonably ask why they just called for disclosure of such illegal acts?
The whole memo is premised on that assumption. It would make no sense to write the memo otherwise.
Agreed.
My only point was that, if in fact the Clinton OLC had earlier made a determination with respect to a controversial subject like that, it is odd that such assumption is left unstated.
My thought, expressed above, is that the Clinton OLC took no position on the question of whether the WPA was valid, but assumed solely for the purposes of argument that it was. It was an argument in the alternative.
It was Jim Comey who said that, not Goldsmith (although I think Gellman quotes to Goldsmith's book when he tells the anecdote) and it was "no good lawyer."
Moreover, he must explicitly override the OLC (Bush was preparing to do so over the TSP, he merely has to substitute his signature for the AG) to do so, instead of twisting them around to approve it.
In other words, the POTUS has the power to direct the executive branch as he pleases, but he has to put his cards on the table.
"A federal judge on Monday cleared the way for a groundbreaking suit that would let lawyers peek behind the curtain of the Bush administration's warrantless electronic surveillance program.
Northern District of California Chief Judge Vaughn Walker ruled that lawyers for Al-Haramain Islamic Foundation can access material long held secret by the government. But he also wrote that the press and the public must now be kept largely in the dark.
Walker's ruling was a comeback victory of sorts for Al-Haramain, the plaintiff in a rare suit challenging the constitutionality of the government's surveillance regime.
"This decision has been three years in the making," said Jon Eisenberg, of Oakland's Eisenberg and Hancock, who represents Al-Haramain. "Judge Walker has removed a key obstacle to litigating this case on the merits and adjudicating the legality of the president's warrantless wiretapping program. That's good news for us and that's good news for the country."
Walker dismissed Al-Haramain's complaint in July after ruling that the charity could not use a secret document, accidentally disclosed by the government years ago, to assert that authorities had spied on it and therefore show it was "aggrieved" -- a status necessary to prove illegal wiretapping under the Foreign Intelligence Surveillance Act of 1978.....................................................
Walker's decision sets in motion a process that seemed unlikely a few months ago: The government must now give Walker a copy of the secret document within two weeks and complete top-secret security clearances for Eisenberg and up to two other plaintiffs lawyers by Feb. 13, so that they can also review the document.
The public, however, could be excluded, Walker wrote.
"The court's next steps will prioritize two interests: protecting classified evidence from disclosure and enabling plaintiffs to prosecute their action," he wrote. "Unfortunately, the important interests of the press and the public in this case cannot be given equal priority without compromising other interests."
But Walker suggested that Coppolino should now review all of the motions and evidence he has filed under seal, including the classified document, and see whether the government can declassify anything.
That is a decision that will confront the Obama administration, Eisenberg said, pointing to a speech by incoming Attorney General Eric Holder Jr. at the June national convention of the American Constitution Society.
Holder called certain U.S. policies enacted in response to the Sept. 11 attacks "excessive and unlawful" and said the government should obey the laws, like FISA, that govern domestic surveillance, according to media reports.
If Holder's speech is any indication of how the Obama administration is likely to handle this case, Eisenberg said he has "some confidence that the veil of secrecy will be lifted and that this administration will repudiate the Bush notion of presidential power."
More change.
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