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Legal Wrangling: Why the Fuss about Legal Nominees?

[Please welcome Liza Goitein, director of the Liberty and National Security Project at the Brennan Center for Justice. As with all live chats, please stay on topic and be polite, and take off-topic discussions to the prior thread. Thanks! — CHS]

What I want to discuss today is the nominations of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel and Harold Hongju Koh to serve as Legal Advisor to the State Department. As you all know, conservatives have come out swinging against these nominations. The nominees themselves are so well-qualified, so clearly within the progressive political mainstream, and the attacks against them so frenzied, one is left scratching one’s head and wondering: what on earth is going on here?

It’s hard to gain much insight from the pattern of deception and misrepresentation. Highlights include allegations that Johnsen compared motherhood to slavery (she didn’t); that Koh wants U.S. courts to practice Islamic law (he doesn’t); that Johnsen has reversed herself on how the Commander in Chief powers interact with statutory law (she hasn’t); and that Koh is against Mother’s Day (he isn’t).

All we can learn from such episodes is that the opposition’s tactics have sunk to a new low and honor has left the building.

More illuminating is the opponents’ characterization (or, I should say, caricature) of positions the nominees have actually taken. In painting Johnsen and Koh’s views as dangerous and radical, the nominees’ opponents have betrayed a profound hostility to the rule of law that elevates the stakes of these nominations.

Take Senator Cornyn’s statements about Dawn Johnsen. Johnsen has stated that the conflicts in Iraq and Afghanistan, along with our conflict against al Qaeda, are wars. But she has noted that we must be careful about using the term “war” to describe other national security threats, because “war has a long history of specialized constitutional meaning.” Cornyn cited this comment as evidence that Johnsen “has not demonstrated the requisite seriousness and resolve to meet the very real national security challenges this nation confronts today.”

But Johnsen is 100% correct as a matter of law.

War requires congressional authorization. Congress has granted authorization for our wars against al Qaeda and the Taliban, and for the war in Iraq. No other wars have been authorized. The law thus prohibits applying the framework of war, with its specialized constitutional meaning and attendant authorities, to any of the other security threats we face. John Cornyn doesn’t care; Dawn Johnsen does.

In a more general sense, Cornyn castigates Johnsen for her “prolific and often strident criticism of the legal underpinnings of the previous administration’s counterterror policies.” Leaving aside the charge of “stridency” (do you think Cornyn would have used that word for a male nominee?), Johnsen’s criticisms of the legal underpinnings of Bush’s counterrorism policies have been right on the mark. The Bush administration itself was forced to renounce some of the OLC memos Johnsen criticized because they were so profoundly flawed. And let’s not forget that the Supreme Court has had four opportunities to review Bush counterterrorism policies and has struck the policies down each time. That’s because Bush had a tendency to ignore the law. John Cornyn doesn’t care; Dawn Johnsen does.

The charges against Harold Koh are just the same tune with different words.

He is portrayed as a radical extremist for recognizing the importance of international law. (His critics appear to draw no distinction between international treaties that the U.S. has ratified – which are more correctly viewed as U.S. law – and laws that apply only in other countries, which may be instructive but not binding, as Koh has recognized.) I can’t think of anything more dangerous than a State Department lawyer who doesn’t believe in international law. It’s a recipe for lawlessness in that Department – which may be the point. After all, the same critics who are shouting that Koh will use international law to obliterate U.S. law were no fans of applying U.S. law in Guantánamo Bay. (Koh was.)

What’s particularly disturbing is that these nominees’ commitment to the rule of law is being used to portray them as radical and outside the mainstream. I’ve been concerned for some time that Bush’s pattern of disrespect for the rule of law might become “the new normal” unless swiftly and forcefully repudiated. The nominations of Koh and Johnsen are themselves a strong message on that score, but the messages, viewed in total, have been mixed. Obama has resisted calls to hold Bush officials accountable for violations of the law, and he has even asserted some of the same overbroad powers Bush asserted – such as the power to override parts of statutes through signing statements and the power to shut down lawsuits by claiming that the very subject matter of the lawsuit is a “state secret.” Such actions perpetuate the notion that the President is beyond (if not above) the law in some matters. They indirectly enable John Cornyn and his friends to paint scrupulous adherence to the rule of law as a slightly nutty idea in these dangerous times.

The bottom line is that the stakes here are thus much higher than whether Obama gets his first choice to fill these slots. And they go beyond how the rule of law will apply at the Justice and State Departments.

Most observers agree: the attacks on Johnsen and Koh are spring training for the coming attacks against Supreme Court and other judicial nominees (Koh himself may be one) who display a similar commitment to the rule of law. That’s why it’s so important to expose what’s behind the current attacks, and defeat them.

I look forward to hearing your thoughts.

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Liza Goitein

Liza Goitein

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