This week, President-Elect Obama nominated Dawn Johnsen to head the Office of Legal Counsel at the Department of Justice. A constitutional law professor at Indiana University, Johnsen is widely known as a fierce advocate for human rights and accountability, a defender of constitutional limits on executive power, a vocal critic of the Bush Administration’s opinions on torture, and also a strong pro-choice advocate.
Johnsen has a long history of service in and outside of government. She served as Legal Director for NARAL Pro-Choice America from 1988-1993, as the Acting Assistant Attorney General in the Clinton Administration heading the Office of Legal Counsel from 1997-1998 and as Deputy Assistant Attorney General from 1993-1996.
Johnsen will hold a powerful if relatively obscure position within the Administration. According to Glenn Greenwald in Salon:
The Office of Legal Counsel, inside the Justice Department, is probably the most consequential federal government office that remains relatively obscure. The legal opinions which it issues become, more or less automatically, the official legal position of the Executive Branch. It was from that office that John Yoo, Jay Bybee and others did so much damage, issuing now-infamous memoranda that established the regime of lawlessness that has dominated our political institutions over the last eight years. Other than Attorney General-designate Eric Holder and Obama himself, there is probably no official who will have a more significant role in determining the extent to which the Obama administration really does reverse the lawlessness and legal radicalism of the Bush years.
The power of the Office of Legal Counsel is more expansive than might be widely understood. According to Greenwald:
OLC does not provide "advice" to the President that he’s free to
accept or reject. Its legal opinions are binding on the President.
If OLC says that "X is illegal," then — absent some extraordinary
actions (such as the President formally rejecting the OLC opinion,
which almost never happens) — then the formal position of the
Executive Branch is that "X is illegal."
Conversely, there are certain laws that say that the President
can do X only if DOJ (through the OLC) issues an opinion legally
authorizing it. If the OLC refuses to do so, then it isn’t legal.
Relatedly, if the OLC is willing to say that "X is legal," then it
becomes much harder to prosecute Executive Branch officials,
because then they can argue that they were acting in good faith
reliance on the opinions of the Justice Department that what they
were doing was fine (as we’ve seen over the last eight years).
OLC isn’t the Superman of the U.S. Government. A President who
is determined to break the law can do so even with a hostile OLC.
But it’s not merely an advisory office. It has formal power, power
which can bind the President, and its actions can make presidential
lawbreaking much harder or much easier.
Johnsen is ideal for this position specifically for her understanding of and deep respect for balance of power. "She’s become a true expert on executive power," writes Greenwald, "and, specifically, the role and obligation of the OLC in restricting presidential decisions to their lawful scope." Many agree with Greenwald’s assessment, and point to her impassioned arguments against abuses of executive power committed by the Bush Administration during the past 8 years, particularly on the issue of torture. One article cited by several commentators can be found on Slate from March 18, 2008, regarding how the next administration must work to fix the damage done by the Bush Administration.
Having advocates such as Johnsen in the Justice Department along with Eric Holder and others makes a strong statement about the direction Obama intends to go in promoting and protecting reproductive and sexual health and rights. Under the Bush Administration, for example, former Attorney General John Ashcroft–who could not even tolerate nudity in statues–pursued an agressive anti-choice agenda. Ashcroft’s DoJ appealed rulings finding unconstitutional the banning of late-term (the right likes to call them "partial birth") abortions. Among other antics, Ashcroft also went on a crusade to violate the most basic privacy rights of patients by seeking to force hospitals to turn over records on abortions performed in their facilities. The Bush DoJ also found reason to expand the prostitution pledge in global AIDS law beyond the original language in the global AIDS Act, thereby expanding it to domestic organizations.
It appears that these various reigns of terror–on the rights of prisoners of war, on women’s rights here and abroad–perpetrated by an Administration in which the Department tasked with upholding justice was actively engaged in subverting justice are about to end.