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Robyn E. Blumner, Times Columnist

Once again we'll be a nation of laws

Goodbye to our long night as Torture Nation. Hello to our new Dawn — Dawn Johnsen, that is. As the lawyer tapped by President-elect Obama to head up the Office of Legal Counsel — one of the most important offices in government — Johnsen will lead us out of the dark, where we've been wallowing for eight destructive and demoralizing years.

The OLC has the job of restraining presidential lawlessness and, as Johnsen has written, of occasionally telling the president "no." Situated within the Justice Department, its role is to evaluate the legality of proposed executive branch actions — advice that is seen as binding.

The OLC was once known as the conscience of the department, but under the Bush-Cheney regime it quickly became a "yes" factory where no presidential act was considered out of bounds.

Notably, Johnsen, a law professor at Indiana University who headed the OLC for a short time under President Clinton, has been loudly raising alarms about the office for years.

After a second OLC memo justifying the use of torture was finally disclosed in April 2008, Johnsen wrote in Slate magazine: "Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that lead to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it — all demand our outrage."

By putting someone as full-throated as Johnsen at the OLC's helm Obama is saying that we are returning to our legal heritage as a nation of laws. He is signaling as strongly as possible that the unitary executive, where the president as commander in chief has essentially limitless power, is dead.

And let it never rise again.

The lawyers populating the OLC under President Bush have been handmaidens and collaborators who worked feverishly to weave legal justifications for all manner of dark arts that renegade governments practice.

Though much of the office's work over the last eight years is still secret, we have seen some of the handiwork of former OLC lawyer John Yoo, who is now a law professor at Berkeley, and former OLC chief Jay Bybee, now a federal appellate judge. Between them, they produced at least two now-public torture memos that gave legal clearance for the use of brutal interrogation methods — a position directly at odds with U.S. law and international treaties.

What we don't know is how many other equally disturbing memos were drafted to allow the president to ignore legal constraints on his power.

There is a still-classified OLC memo from 2001 that is referred to in Yoo's second torture memo, which says that the Fourth Amendment has "no application to domestic military operations." This wholesale dumping of a key constitutional protection is likely the basis for the NSA's warrantless domestic spying program.

I also wouldn't be surprised to see memos on allowing the president to use signing statements to unilaterally extinguish parts of laws he doesn't like, and memos that interpret executive privilege so broadly that they keep Congress from investigating any White House activity the president deems off-limits.

The OLC, with the exception perhaps of the short-lived tenure of dissenters Jack Goldsmith and Daniel Levin, provided legal cover for the plundering of congressional power and the undermining of civil liberties. It mapped out in thick legalese Dick Cheney's dream of establishing a presidential monarchy.

But now, kingslayer Johnsen will be in charge.

In addition to vowing to open OLC opinions whenever possible to the light of public scrutiny, Johnsen calls for a complete reckoning of the wrongs committed. "We must avoid any temptation simply to move on," she wrote in an earlier posting in Slate. "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."

Exactly right. Now, let the accounting begin.

Once again we'll be a nation of laws 01/10/09 [Last modified: Sunday, January 11, 2009 10:26pm]
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