APPOINTMENTS

Monday, January 5, 2009 3:22 PM

Johnsen Discusses Challenges Awaiting OLC

President-elect Barack Obama announced today that Dawn Johnsen, currently a law professor at Indiana University, has been tapped to take over a job she held on an acting basis in the Clinton administration -- running the Justice Department's Office of Legal Counsel.

A traditionally obscure agency tasked with advising the president on the legality of his policy decisions, the OLC has garnered unusual attention in recent years because its opinions represented the legal framework for the Bush administration's war on terror. Johnsen spoke with National Journal's Shane Harris before the election about the credibility of some of those opinions and the difficulties facing the incoming Obama administration as it tries to break with the Bush team's precedents. Edited excerpts follow.

But because the opinions have not been made fully public, the next president will have to play some catch-up. "You can't even evaluate the extent to which their legal advice and policy are wrong," says Johnsen, a former deputy assistant attorney general in the OLC, who worked on the changeover from George H.W. Bush's administration to Bill Clinton's. "That's the backdrop for this transition."

"The transition team cannot be given unfettered access to the classified opinions unless [they] have security clearances," Johnsen says. "And even then, they cannot share what they learn in those classified opinions freely."

Under George W. Bush, Johnsen says, the office became "blatantly outcome-driven." The opinions came to be seen less as reasonable legal advice than extravagant interpretations of the law in service of a specific policy agenda. "Some of these opinions are irresponsible and indefensible even in their statutory analysis," she says

Law professor William Marshall of the University of North Carolina, who co-authored a 2005 paper titled "The Law of Presidential Transitions," predicted that the outgoing OLC staff will share the classified opinions with the appropriate individuals from the president-elect's transition team.

But Johnsen is less confident. "I have to admit, I am deeply concerned," she said, citing what seemed like constant revelations in the press and through official investigations of broad interpretations of executive power, and the Bush administration's appetite for secrecy.

"I think ultimately [cooperation during the transition] will happen, because the safety of the nation is at stake," Johnsen said, mindful that current OLC opinions involve activities that are vital to national security. "But there shouldn't be a fight about it. And it should happen in November rather than January; otherwise, valuable time will have been lost."