By Dawn Johnsen
Friday, June 11, 2010; A17
In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.
It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.
There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.
The Office of Legal Counsel advises the president and executive branch agencies on the legality of contemplated actions and policies. It ensures that the executive branch follows the law, thereby protecting individual liberty and the structure of our government. Since Sept. 11, 2001, and the subsequent security challenges facing our nation, the OLC's work has become all the more important.
After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."
Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were.
With rare exceptions, in administrations of both parties, the OLC has adhered to this essential principle. The torture memo and related advice are one of the unfortunate exceptions. The office undermined the rule of law, its own traditions, and the reputation and goals of the administration it advised -- which disavowed the memo when it leaked, after two years -- when it suggested that the president could direct employees acting on behalf of the United States to engage in torture notwithstanding a federal statute criminalizing such treatment.
Hundreds of pages of valuable facts and analysis publicly detail this "unfortunate chapter" in OLC history, thanks to the Justice Department's review of the incident. From all that is known, the OLC has turned the page. It has performed admirably since President Obama took office, under the able leadership of acting head David Barron (a signatory of the 10 principles).
A more complete and enduring restoration, however, will require confirmation of a leader committed to the office's best traditions. Beyond that, this and every subsequent administration should publicly release a statement of principles that guide the OLC's work. Such a statement should not change significantly from one administration to another, for the demands of the rule of law are nonpartisan.
Of the 10 guiding principles we suggested, the only contentious point involves the degree to which OLC legal advice and analysis should be made public. A critical factor is the risk of chilling executive branch clients in seeking legal advice.
The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo's conclusion that the president's constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That's how democracies work.
Proposals for radical reform to make the OLC independent from the sitting president are wrongheaded. The office's political leadership should be committed to the administration's success and must have the president's confidence, lest the president or other administration officials avoid bringing the most difficult and consequential issues for review. And when the OLC says no, it should stand ready to assist the administration in developing lawful means of achieving its legitimate ends.
The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks. Nor should such a critical office go without a confirmed head. It is time for the swift confirmation of an assistant attorney general and a renewed bipartisan commitment to the integrity of the OLC's work.
The writer, a professor at Indiana University Maurer School of Law in Bloomington, Ind., served at the Office of Legal Counsel from 1993 to 1998, including as the acting assistant attorney general.