Dawn Johnsen: No Longer A Football

Caption: Dawn Johnsen. If there's anything good to say about the Obama Administration's treatment of her nomination, it's that Charlie Brown never got a chance to kick her.

Image credit: Indiana University

This is another depressing topic that I've avoided the last few days, but thankfully, bmaz is on the case. Discussing the anonymously-sourced bleatings in the DC press about how President Obama didn't have the stomach for a fight on Dawn Johnsen's nomination to head the Department of Justice's Office of Legal Counsel (OLC), he wrote:

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure.

Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

As with so much we read these days from this source, bmaz is correct. This is just the story that the Senate "leadership" and the Administration want to tell us, but don't have the honesty to just say on the record. In short, it's a lie, and the DC press is happy to let people with power lie anonymously.

Why is this a lie? Maybe the most telling reason is this under-reported story:

Today, both The New York Times and The Washington Post confirm that the Obama White House has now expressly authorized the CIA to kill [American citizen Anwar] al-Alwaki no matter where he is found, no matter his distance from a battlefield. I wrote at length about the extreme dangers and lawlessness of allowing the Executive Branch the power to murder U.S. citizens far away from a battlefield (i.e., while they're sleeping, at home, with their children, etc.) and with no due process of any kind.

Confirmed: Obama authorizes assassination of U.S. citizen

You read that right - the Obama Administration is now claiming that it has the right to kill an American citizen if the national intelligence establishment is willing to say that he's a terrorist. As we saw in the last Administration, it's pretty clear that this is not a process that will be free of political consideration, or error.

This isn't a case of trying to arrest someone at all costs, or of killing someone in order to prevent an imminent attack or to defend someone's life - it's a policy that was coldly discussed for months. No trial, nor even a warrant is required. The implications of this are staggering. I can't imagine Dawn Johnsen, or any other principled professional lawyer, going along with this.

To that, let's add this quote from Glenn Greenwald on the subject, which I copied from bmaz's article:

virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that “[openness] will empower terrorists” to the overarching Obama dictate that we “simply move on.” Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President “must not do”?

I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.

The Death Of Dawn Johnsen's Nomination

It's at least theoretically possible that when the Obama Administration first announced Johnsen's candidacy for OLC they were genuinely interested in having her work there. It was pretty clear, though, even before Obama took office, that they were more interested in retaining many of the powers that the Bush Administration had claimed while in office. They have actively sought, on numerous occasions, to continue using those powers, or cover up for the Bush Administration's misuse of them.

It's hard to believe that Dawn Johnsen would have approved any of this, regardless of the justifications. Assassinating an American citizen is such an extraordinary step that even the Bush Administration didn't take it. Given that, it's hard to believe that the Obama Administration wanted her around. They're undoubtedly much more comfortable with the leftovers from the previous administration, who clearly had no problem with an all-powerful executive.

The only real question is why the Obama Administration chose to renominate Johnsen back in January. I think there are two possible explanations, which are not mutually exclusive. The first is that they kept her nomination in play so that Johnsen would not feel free to criticize Obama's policies. Doing that would have placed her in a very uncomfortable position.

The second possibility is that they kept her on as cover from progressives. Anyone who really looked at what's going on, of course, would have realized that the Johnsen nomination was at odds with the Administration's behavior, as I did. As bmaz realized, but I didn't, it was also clear that the Obama Administration had no intention of following through. In retrospect, as bmaz explains, they could have gotten the nomination through the Senate if they had wanted to:

There is no evidence whatsoever [Democratic Senator Ben] Nelson would have voted against allowing the nominee of Barack Obama, the sitting President of his own party, to have an up or down vote. None. How Nelson would have voted on the up or down floor vote is irrelevant as there were far more than the 51 votes for confirmation in an up or down vote. Ben Nelson was not the problem.

Arlen Specter was not the problem either. Specter’s office directly confirmed to me that he was, and has been, willing to allow cloture on the up or down floor vote for Johnsen, and likely willing to support her in said up or down vote, ever since his second face to face meeting with Johnsen on May 12, 2009 and Specter confirmed the same to Marcy Wheeler in late February. The failure of the Johnsen nomination cannot be laid at the feet of Arlen Specter.

Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

Both Senators who have been named as the ones who tried to obstruct this nomination, were going to allow a vote, which means that they would not have obstructed Johnsen's nomination. As bmaz writes, this is in keeping with past tradition on this issue. There is no reason to assume that either Nelson or Specter, particularly the latter, who is facing a tough re-election fight complete with a legitimate primary challenge, would have obstructed this nomination if Obama had wanted it. Anyone who thinks that was asleep during the health care debacle.

Speaking of the health care "reform", given the largely slavish coverage of that issue by the so-called progressive organizations, it shouldn't be surprising that they've been largely silent on both this issue, and on the assassination of American citizens. They didn't bother to work out the implications of the health care bill, something that supposedly is a central issue. Why would we expect any courage now?

The Johnsen nomination is done. That much is certain. Why it was put forward in the first place is the only interesting question. The implications of that question are enormous, and disturbing.