Archive for the ‘Hearings’ Category

Correcting the Record on Dawn Johnsen’s Record

April 17, 2009

In a post yesterday on Powerline, Paul Mirengoff argued that the Senate should reject the nomination of Dawn Johnsen to head the Office of Legal Counsel. Even though his post was full of errors, some bloggers seem to regard it as credible. So, a point-by-point correction is in order.

  • Mirengoff argues that “There is strong reason to believe that Dawn Johnsen will consistently err on the side of protecting terrorists and denying the president the power to protect the nation. This fear is not based solely on her blogging; it also stems from her law review articles and, to a lesser extent, statements she has made or declined to make during the confirmation process.”

In fact, Johnsen has urged critics of the Bush Administration to be careful and focused, cautioning them not to let their disagreement with Administration policies lead them to a weak view of executive authority. “Regardless of who proves correct about the general post-Bush direction of presidential power,” she has written, “there is some risk that reactions to the Bush experience—public sentiment, political considerations, or mistaken constitutional understandings—might distort criticism and harm legitimate and valuable executive powers. Commentators certainly should not mute their principled criticism, but they should avoid imprecise and over-generalized reactions that might undermine the ability of future Presidents to exercise legitimate authorities.” 88 Boston U. Law Review 395, 398 (2008). (more…)

Johnsen’s Confirmation Hearing as OLC Head — The Right Choice

February 25, 2009

 Dawn Johnsen will be questioned today by the Senate Judiciary Committee with respect to her nomination as head of the Office of Legal Counsel, along with David Kris, who has been nominated to head the National Security Division.  The Office of Legal Counsel is the key Justice Department office advising the President on issues of executive authority.  As a friend and colleague of Professor Johnsen for years — including a colleague when we both worked at OLC in the 1990s — I am completely confident that the Constitution will be in excellent hands with her as head of the Office, and that President Obama has chosen well.  That’s my opinion, as well as my disclosure of bias for what follows.  (more…)

Testimonial Immunity for White House Aides?

February 20, 2009

The House Judiciary Committee has been trying to get to the bottom of whether the White House improperly influenced the firing of six US Attorneys during the Bush Administration.  When former White House Counsel Harriet Miers and then-chief of staff Josh Bolten were subpoenaed by the Committee, they and the White House claimed that close White House advisers were absolutely immune from having to testify.  In a well-reasoned opinion, Judge John Bates rejected the claim of absolute immunity.  Bates had it right:  whatever the justification for an assertion of absolute immunity for the President himself, the claim for his key aides is quite thin — and, something he did not stress in his opinion, it gets thinner once they become former aides or aides of a former president, as Miers was at the time of the decision and as Bolten has since become.  At the time of the original decision, Marty Lederman blogged on the topic, and I will not repeat his judicious remarks here.  

Now, the case is in the news again, because the Court of Appeals for the District of Columbia, which is hearing the appeal, has declined an administration request for a two week delay in the government filing its brief.  That brief is now due February 25. 

The Obama administration would be wise to leave the battlefield on this one.  Bates’ opinion only says that when subpoenaed Miers and Bolten must show up at the Committee hearing.  At that time, they will still be able to assert executive privilege over answers to specific questions that are appropriately covered by that privilege.  That is quite enough protection to advance any President’s interests in ensuring confidential discussions.  That is going to take some nimble negotiations with the attorneys for Miers and Bolten as well as with the House of Representatives, all of whom will have to be on board.  But stonewalling the entire hearing through the use of an absolute immunity claim that was rejected in the court below is hardly striking a blow for greater transparency.  If the immunity claim had strong support in precedent, that would be one thing, but the claim with respect to former aides is quite weak.

Confirmation Hearings Set for Two Key Justice Department Officials

February 18, 2009

On Tuesday, February 25 at 2 p.m., the Senate Judiciary Committee is schedule to convene confirmation hearings for Dawn Johnsen slated as head of the Office of Legal Counsel and for David Kris to be head of the National Security Division. OLC is the epicenter for legal interpretations regarding surveillance, interrogation and detention, while NSD is operations central for law enforcement efforts to defeat terrorism within the United States. Both the legal interpretations and the operational policies of the Bush Administration came under enormous criticism, and a central theme of the hearings is certain to be trying to pin down each nominee on how much the Obama administration will differ from the approaches taken under President Bush. Copies of Professor Johnsen’s and Mr. Kris’ responses to the Committees questionnaire have been posted on the Committee website, here and here along with letters the Committee has received in support of each nominee.

Secret Law

February 13, 2009

As we have noted, in the final weeks of the Bush Administration the Office of Legal Counsel released a number of opinions, both memoranda and letters, that had not previously been publicly disclosed, although some had been shared with the Congress.  Propublica and the ACLU are both monitoring a rather long list of as-yet-undisclosed memos.

The recent disclosures have not entirely satisfied some members of Congress.  Representative Brad Miller (D-NC) has introduced H. 278, “The OLC Reporting Act of 2009.”  The bill, which is substantively the same as S3501 introduced by Senator Feingold in the 110th Congress, would require the Attorney General to notify Congress anytime DOJ issued an “authoritative interpretation” of a statute that concluded it was unconstitutional in any particular application; that employed the canon of interpreting statutes to avoid constitutional concerns for reasons of separation of powers or intruding into the President’s powers; that relied upon a legal presumption against applying it to any actors in or actions of the executive branch; or that concluded part of the statute had been superseded by implication by a later enacted statute.

Each of these techniques of legal interpretation figured prominently in the legal analysis of significant opinions issued by the Office of Legal Counsel during the Bush Administration.  They each have the result of changing the effective coverage of a piece of legislation enacted by the Congress.  A dramatic example:  in the White Paper the Department of Justice released to explain why the Foreign Intelligence Surveillance Act did not prevent the President from authorizing warrantless surveillance, the Justice Department relied in part on the argument that the FISA had been impliedly repealed by the Authorization on the Use of Military Force.  This was a particularly weak argument – it stretched the doctrine of implied repeal quite far – but the relevant point here is that had Congress known about this interpretation and thought it wrong, it could have enacted language making clear that it intended no implied repeal when it enacted the AUMF.  But it did not know, and may never have known except that the New York Times story exposed the NSA program, and that compelled the administration to issue the White Paper defending it.  Congress cannot exercise its governance responsibilities in regards to a problem if they don’t know the problem exists.  The Reporting Act is aimed at surfacing similar legal interpretations in the future.

In one of the recently released OLC opinions, the Office of Legal Counsel concludes that the 2008 version of the OLC Reporting Act is unconstitutional.  Stay tuned for more discussion of this – and watch for questioning about it at Dawn Johnsen’s confirmation hearings as incoming head of OLC.  She helped write the Reporting Act.



Holder Hearings - Part II

February 11, 2009

An earlier post observed that pinning down the views of any lawyer in the Executive Branch on the scope of the president’s authority to override or disregard statutes can be extremely difficult.  Individuals being questioned about the limits of the president’s constitutional authority quite often respond with a statement of policy.  Even when the answer does speak to constitutional authority it often contains weasel words:  it is hard for any president’s lawyer voluntarily to take the idea that actions taken contrary to law could be lawful in extreme circumstances entirely off the table.  But then the effective limitation of the president’s powers depends on who is defining “extreme.” The earlier post provided examples from Eric Holder’s confirmation hearings of answers that might have soothed the worries of questioning Senators but actually failed to limit the President’s authority very much.  There were two exchanges, however, one with Senator Leahy and the other with Senator Hatch, in which Mr. Holder went beyond policy statements and avoided weasel words — one regarding authorization of torture and the other the use of warrantless intelligence surveillance.  Here they are:  (more…)

The Incredibly Slippery Idea of Executive Authority

February 7, 2009

The Holder Hearings — Part I

The recently departed Bush Administration took a notoriously broad and aggressive view of presidential or executive authority.  President Bush and his lawyers thought that the President can disregard statutory prohibitions if they interfere with the President’s opinion of what actions would serve the national defense.  So Congress has passed laws making surveillance authorized by warrants from a federal court the only way to eavesdrop on terrorist conversations inside the United States, but the President thinks the warrant procedures are too restrictive?  No problem - the President can ignore the statute, because the Constitution makes him the commander-in-chief and gives him the authority to perform that job effectively.  The argument is laid out on pages 28 to 36 of a White Paper issued by the Department of Justice shortly after the New York Times ran a story revealing the secret warrantless surveillance program that the National Security Agency had been running after September 11.  This authority of the President to override statutes showed up in many of the signing statements that President Bush issued concurrently with signing pieces of legislation, infuriating members of Congress and often leaving people in the dark about when the President would follow the law or choose to disregard it.

There is now a great expectation that the incoming Obama Administration will take a noticeably different view of presidential authority.  During the presidential campaign he signaled that he intends to obey the Constitution and the rule of law.   And already he has begun rolling back some of the more controversial actions President Bush took as commander-in-chief, notably including, President Obama issued an executive order to roll back controversial commander-in-chief actions of President Bush, notably including ordering a stop to the military commission trials of Guantanamo detainees so that the people being held there can each be evaluated individually to decide whether a trail should proceed in a regular federal court or a regular military court martial.

It would be startling if there was not a significant shift on questions of presidential authority under President Obama - but at the same time one ought to be cautious in drawing firm conclusions regarding exactly where the Administration now stands on each of the many different aspects of executive authority.  While it is often the case that actions speak louder than words, executive authority is situation in which actions can be ambiguous and words incredibly slippery.  An action like closing down military commissions could mean that the President thinks he lacks the unilateral authority to create them or it could mean he has decided not to use military commissions because of how they have damaged our international reputation, even though he thinks he has the unilateral authority to use them if he wished.  Decisions not to exercise authority always are ambivalent in this way, because failures to act are equally consistent with someone lacking the authority to act and also with someone having the authority and just declining to exercise it.  (With respect to the military commissions themselves, of course, this question has become moot because five years after President Bush established them unilaterally, Congress enacted the Military Commissions Act giving them a statutory foundation.)     (more…)