The Wall Street Journal calls her "President Gulliver's Lawyer" because she wants to tie down the ability of the President to act against terror. And now President-elect Obama has named her to a post where she can do exactly that. Meet Dawn Johnsen, selected to head the DoJ's Office of Legal Counsel.
Ms. Johnsen became famous in the left-wing blogosphere as an especially arch critic of the Bush Administration's war on terror. As an Indiana University law professor, she took to the Web with such lawyerly analysis as "rogue," "lawless," "outrage," and that's the mild stuff. Now she's been nominated to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch.
One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been "strangled by law," to quote Jack Goldsmith, a former Bush OLC chief.
Yet Ms. Johnsen seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes. She has written that "an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch." And in touting her qualifications, the Obama transition cited her recent law review articles "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."
Is Obama heedless of the risk of another terror attack? Does he assume that Al Qaeda and company will yield to his charms as readily as the media and young voters did? That's one possible explanation for his willingness to drop our guard against terror plotters. The other, much more unpleasant possibility is that he is of the same school of thought as Rahm Emanuel, who spoke of not letting a crisis going to waste. The left complained about the powers the Bush Administration assumed in the wake of 9/11. Some were complaining because they truly believed in limited government, I assume, though that is not a hallmark of the left. Other, however, complained out of envy.
I hope that the first hypothesis is the correct one.
Hat tip: Ed Lasky
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