On a day when both a Supreme Court judge, and a controversial Democratic senator announced their retirement, another major announcement largely slipped through the cracks. The President's pick to head the Justice Department's Office of Legal Counsel, Dawn Johnsen, withdrew her bid for confirmation under pressure from Senate Republicans.
But, who is Dawn Johnsen, and why was she forced to step down?
Ms. Johnsen is not only a lawyer, but a distinguished professor of constitutional law who worked at the Office of Legal Council from 1993 through 1998, and in the capacity of Assistant Attorney General from 1997 to 1998. She was twice nominated by Obama to head the OLC.
Now comes the why part. Apart from her vocal opposition to the Bush administration's policy of defying international treaties by enabling torture and in violation of the Eighth Amendment injunction against cruel and unusual punishment, she also denounced the Bush gang for what she called the "outlandish" overreach of their executive branch.
Moreover, Ms. Johnson is a strong, and committed proponent of a woman's right to choose.
Her strident opposition of so-called "enhanced alternative interrogation methods," as well as the sociopathic attempts by past White House counsel Jay Bybee and John Yoo to legally sanction what amount to war crimes were more than Republican members of the Senate Judiciary Committee could bear. Indeed, that was the straw that broke the proverbial camel's back, and resulted in the Obama administration rescinding its nomination.
Sadly, both the White House and the Justice Department have caved in to what they call "politically motivated pressure" by allowing an eminently qualified, and highly principled, candidate for the Office of Legal Counsel nominee to quietly remove herself from the running. Johnsen's decision to withdraw her bid is especially ironic in light of the ruling of a D.C. federal judge, also on Friday, ordering the release of another Gitmo detainee, Mohamedon Salahi.
While some of the federal court's decision remain classified, much of what is known speaks to the concerns of egregious extra-constitutionality Ms. Johnsen's tenure would doubtless have addressed. Mr. Salahi was reportedly held by the U.S. for eight years on "suspicion" of having ties to al Qaeda.
He was illegally rendered from his birth country of Mauritania to Afghanistan, and then on to Gitmo where he has spent the last six years of his life subjected to a host of various and sundry tortures that include being shackled to the floor, awakened every few hours, and kept in complete isolation in the equivalent of a freezer for several months at a time. Now why in God's name would anyone, Democrat or Republican, on the Senate Judiciary Committee, or anywhere else, object to the confirmation of someone to head the Office of Legal Counsel who abjures this egregious misconduct on the part of the U.S.? Arguably, because the offenses ushered in during the Cheney years, until explicitly disavowed, have now become legal precedent. This concession to the "war on terror" hawks of the Republican party cannot, and must not, go unacknowledged.
Importantly, the judge in the Salahi case, Judge James Robertson said he was convinced "there is ample evidence" Mr. Salahi was severely mistreated according to the American Civil Liberties Union. Notably, the Department of Justice is appealing Judge Robertson's decision. Is Justice now as firmly entrenched, and invested in denying justice in this administration as it was in that of its predecessor?
The facts speak for themselves. Consider this: Salahi is the 34th Gitmo detainee who was deemed to have been detained illegally and released, so why would Dawn Johnsen, the President's preferred nominee to head OLC, be forced to capitulate? Surely, her voice is not that of a lone wolf in the desert, but one that is being heard more and more both in federal, and district courts nationwide.
In the past few months alone, courts have ruled that the Bush administration's broke the law when it defied FISA by having the NSA engage in electronic eavesdropping. Nobody, not even the former vice president, Dick Cheney, has argued that waterboarding is legal, and Cheney himself admits to green lighting the practice.
But, what's a few laws between friends? The executive branch, in the Bush administration, also deleted millions of White House e-mails in violation of the Presidential Records Act, and the Obama White House appears to be just as eager to hide behind the shield of "state secrets" to protect their contents.
Understood that Obama speaks often of striving for bipartisanship, but is it in the interest of "bipartisanship" that a decade of wanton lawlessness, and extra-constitutional precedent be sanctioned by those in the Republican party who think that breaking the law is in the interest of national security? To paraphrase Richard Nixon--it's not illegal if the president does it. Is it also not illegal if the president orders it?
The Obama administration has taken its blueprint for health reform from another Republican, Mitt Romney. Will it accept the Nixon mantra now, too?
Not only is the detention camp at Guantanamo Bay still open, but DOJ is appearing in court to oppose those who would like to see Gitmo closed, and the heinous practices of extraordinary rendition, and torture stopped. This is unacceptable.
Keith Olbermann once rightly said there's a difference between compromising, and being compromised. By giving way on the confirmation of Dawn Johnsen, the White House is signalling that it is not compromising, but is in fact compromised. Yielding to those forces that would sabotage constitutional protections this country has enjoyed for over two hundred years is unacceptable.
If this confirmation battle is a harbinger of what is to come when Congress confirms Justice Steven's replacement on the Supreme Court, then it's high time for those who condemn torture, illegal surveillance, as well as those who are in favor of choice and affirmative action to stand up not step down.
It is only by distinguishing their policies from those of the opposing party, instead of simulating them, that Democrats can expect to survive what is perilously close to a religious revival from the right .