05/23/2009 05:12 am ET Updated May 25, 2011

Correcting the Record on Dawn Johnsen's Record

In a post recently 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).

* Mirengoff also incorrectly cites Johnsen's views on warrantless surveillance as an example of her supposedly timid view of presidential power: "Johnsen has objected to warrantless surveillance of suspected al-Qaeda communications into and out of the United States. The special appellate court created by Congress to review executive branch surveillance programs upheld the foreign wiretap activities of the Bush administration that Johnsen had denounced as based on 'an extreme and implausible Commander-in-Chief theory.' Even so, during the confirmation process Johnsen has said that 'she hold[s] to [her] criticisms.'"

As it turns out, Mirengoff is off-base in a number of respects. First, the opinion Mirengoff cites does not address the unauthorized surveillance program addressed by Johnsen. Rather, after Congress became aware of the existence of this surveillance program, it enacted a law (The Protect America Act) that authorized a surveillance program. The ruling that Mirengoff cites held that the program complies with this new law; it says nothing about whether the program was legal before the Protect America Act was adopted. Second, the Bush Administration's surveillance program at issue was roundly criticized, by Democrats and Republicans alike, as violating the Foreign Intelligence Surveillance Act and Johnsen's views on the program are solidly within this bi-partisan mainstream. Third the Bush Department of Justice itself concluded that at least one version of the program was illegal.

* Next Mirengoff argues: "Johnsen also ducked the question of whether renditions are lawful. The Clinton administration Justice Department must have thought that they are, since the Clinton administration regularly used this tool, presumably with DOJ sign-off. And Leon Panetta, the new CIA director, has refused to rule out renditions going forward. But Johnsen has called for an "immediate end" to the practice and, during her confirmation hearings, refused to comment on the legality of the Clinton administration's rendition practices."

In fact Johnsen specifically answered the question about renditions. In response to written questions from Senator Arlen Specter, Johnsen wrote, "I know that the practice of rendition did not begin with the Bush Administration and my belief is that it is not in all cases unlawful." Her call for an "immediate end" was not to all renditions, but to "extraordinary renditions to countries known to use torture"

* Mirengoff then contends, "Johnsen has also attacked the Bush administration's decision to hold enemy combatants. Indeed, it is doubtful she believes that the president has to power to preventively detain terrorist suspects. In her testimony to the Senate Judiciary Committee, Johnsen refused to state her view on this crucial question."

Again, his criticism is off base. Johnsen provided detailed written testimony on this point. Here is her position on detaining enemy combatants, in response to questions submitted by Senator Hatch:

6. You met with the Columbia Law School's Human Rights Institute about their recommendations for the war on terror. They say that the two choices for handling the terrorists detained at Guantanamo Bay are release or criminal prosecution in domestic courts. Do you agree with that?

Answer: No, I do not agree that release or criminal prosecution in domestic courts are the only two possible dispositions for individuals held at Guantanamo Bay. The President's executive order of January 22, 2009 concerning closure of Guantanamo recognizes the possibility of other dispositions. That order has set in motion an interagency process for determining how each of the Guantanamo detainees should be handled.

7. At her confirmation hearing, Solicitor General nominee Elena Kagan said that under military law there is no requirement to let captured enemies go back to the war. Do you agree?

Answer: Yes, I do agree with Dean Kagan's statement that under traditional military law, enemy combatants may be detained for the duration of the conflict. That is what the Supreme Court said as well in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

8. Attorney General Holder said at his confirmation hearing that if there is evidence that a detainee is dangerous, then "I don't think... that that is a person who we can release." Do you agree with him or with those who say that these detainees should be either released or tried in civilian courts as criminals?

Answer: As indicated above, I do not believe that release or criminal prosecution are the only possible dispositions for detainees. The President's review of the appropriate disposition of each of the detainees is underway.

* Finally, Mirengoff asserts that, "The Clinton Justice Department (in the person of Jamie Gorelick, no less) also defended the president's authority to 'conduct warrantless physical searches for foreign intelligence purposes' and concluded that the president 'may delegate this authority to the Attorney General. For that matter, the Clinton Justice Department detained some Cuban refugees at Gitmo and, when challenged, successfully argued that because the refugees were being held in Gitmo, they had no cognizable constitutional rights. This is the position that Johnsen characterized in a Boston University Law Review as radical and unprecedented."

Johnsen said nothing of the kind in her B.U. article. She did, however, address the question for the Senate Judiciary Committee. Here is what she had to say: "I had no disagreement with [Jamie Gorelick's] position and understood it to be the position of the majority of federal courts that had addressed the issue in a related context."

Dawn Johnsen is an outstanding choice to lead the Office of Legal Counsel. It is not surprising that her critics have resorted to basing their arguments on fiction. We can only hope the Senate will see through this and quickly move to confirm her nomination.

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