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Obama’s pick for OLC: ‘Just Say No’ To The President

Most of the discussion of President-elect Barack Obama’s appointments announced Monday focused on whether Leon Panetta does or doesn’t have the experience to run the CIA. However, it’s worth noting that Dawn Johnsen, Obama’s pick for the once-obscure post of head of the Office of Legal Counsel in the Department of Justice – made famous by the now-infamous legal adviser John Yoo – not only has the experience to run the office, but apparently the spine that’s necessary for the job, too. (See Spencer’s earlier post on the civil libertarians’ reactions.)

Johnsen, who was deputy assistant attorney general at OLC in the Clinton administration, wrote in an August 2007 UCLA Law Review article that one of the most important roles of the Office of Legal Counsel, which is the primary legal adviser to the executive branch, is to know when to say no to the president.

The “paramount principle that should guide OLC’s work is the imperative to provide accurate and honest legal appraisals, unbiased by policymakers’ preferred outcomes,” she writes in the article, “Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.”

These principles come from a set of ten commandments laid down in December 2004 by Johnsen and 18 other alumni of the Office of Legal Counsel, after learning about (and being appropriately appalled by) the Bybee/Yoo torture memos.

“The Guidelines,” as Johnsen calls them, “come down squarely on the side of accuracy over advocacy, and most of its ten principles follow from and elaborate on the Guidelines’ first and most fundamental principle: OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies … In short, OLC must be prepared to say no to the President.”

For those looking to the Obama administration for a change in direction, here she is.

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