President Obama’s twelve nominations to the Justice Department have plenty in common. Almost all of the appointees are alums of either President Clinton’s Justice Department, Harvard Law School or both. Among them, three share a particularly interesting hobby that could signal a change in the agency — they blog.
The three appointees will serve in the Office of Legal Counsel, the under-heralded but far-reaching office tasked with giving legal advice to the president and drafting opinions for the attorney general. This division has been criticized for entwining politics and the law under the Bush administration, particularly by Jay Bybee, the former assistant attorney general and John Yoo, former deputy assistant attorney general. During his tenure as head of the OLC, Bybee issued a then-confidential memo, written chiefly by Yoo, authorizing the used of enhanced interrogation techniques on detainees. The controversial opinion, commonly called the Bybee memo, was shredded by legal scholars for its weak factual and legal foundation. It came to symbolize the political agenda and secrecy that had consumed the Office of Legal Counsel.
Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin
But it looks like all that could change.
Dawn Johnsen, expected to head the Office of Legal Counsel; David Barron, principle deputy assistant attorney general and Marty Lederman, deputy assistant attorney general all blogged at one point for the legal website, Balkinization and Slate’s now-defunct legal blog, Convictions after leaving their previous stints in Clinton’s Justice Department. This group is more than just a reunion of Bloggingheads — their online legal musings signal a significant step forward for transparency and openness in the new Justice Department. What is more different from a secret torture memo than an open-thread blog post?
All three didn’t just write posts railing against Bush, they attacked the broader legal issue — the expansion of executive power. All three have written about the necessity of an independent Office of Legal Counsel, which means Johnsen, Lederman and Barron aren’t expected to be Obama’s political yes-men (or women). If their musings over the last eight years are any indication, they have firm convictions about the rule of law and the Justice Department’s role in following it — a marked change for the agency.
Appointment: Head of Office of Legal Counsel
In April, the former acting assistant attorney general, wrote a vitriolic piece on Convictions chiding Yoo and the Bush administration. In that post, Johnsen scathingly called Yoo’s memo “irresponsibly and dangerously false in a way that impugns OLC’s integrity.”
In many of her blog posts, Johnsen fiercely criticized the Bush administration, going so far as to call it “lawless.”
In a testament to her belief in transparency and the law Johnsen wrote:
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. . . Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.
If confirmed, Johnsen would be positioned to put her words into action.
Appointment: Principal Deputy Assistant Attorney General
Barron, who served as an attorney adviser at the Office of Legal Counsel in the 1990s, wrote posts at Convictions that revolved around legal arguments against Bush’s growing claims of executive power. The Harvard law professor also wrote forcefully about his support of the Boumediene decision, the case which granted Guantanamo detainees habeas corpus.
Together, Barron and Lederman formalized many of the musings that came from their blogging. For legal scholars and posterity, the two wrote a two-part article in the Harvard Law Review critiquing the role of executive power in waging war without legislative approval.
Appointment: Deputy Assistant Attorney General
Lederman, an 18-year veteran of the Office of Legal Counsel, is perhaps the most prolific of the Obama Justice Department bloggers, and the most vehemently anti-Bush. He regularly files posts for SCOTUSblog and Balkanization on issues of executive power, detention, interrogation and torture. He also doggedly followed the U.S. attorney firing scandal. Lederman wrote extensively on the Yoo memo for Balkanization.
Lederman has a few thoughts about the job Yoo, his predecessor, did as deputy assistant attorney general. In various posts, Lederman derides Yoo’s memo and goes so far as to say that “[Yoo's] legal advice, then, was a fairly direct cause — certainly a necessary cause — of the abuse in Iraq in 2002 and 2003.”
Taking Yoo’s job will give Lederman a chance to move beyond criticizing Yoo’s performance, but show how it should be done.