President Barack Obama is staffing his Justice Department with some of his predecessor’s fiercest critics, among them lawyers who were fired by President Bush or who quit jobs working for his administration.
Now, the opposition is in charge, and lawyers who spent years defining the limits of executive power will be helping wield it.
The change may be most dramatic at the Justice Department’s Office of Legal Counsel—which defended some of Bush’s most controversial policies—where a small cadre of lawyers who had an outsized influence on legal criticism of Bush are taking the top three jobs.
Those three—Dawn Johnsen, Martin Lederman, and David Barron—and others made the case that Bush’s interrogation policy was justified by flawed legal reasoning. Their arguments precipitated one of Obama’s most dramatic early acts: flatly repudiating all government legal advice on interrogation issued between September 11, 2001 and January 20, 2009.
“I think they will be an irritant for Obama in the best possible way—they’re very honest lawyers,” said Rosa Brooks, a professor at Georgetown University Law School, where Lederman also taught. . “When Dawn and Marty and David think that he is asking if he can do something that in their view pushes the envelope and goes beyond the bounds of what is legal, they’re going to say, ‘Sorry Mr. Obama, we think that would be illegal.’”
They step into positions ripe for conflict, and have staked out clear positions that could possibly restrain Obama’s ability to, among other things, conduct military operations against the wishes of Congress.
“They have alarmingly narrow views of executive power,” said a former Bush aide, who spoke on the condition of anonymity.
Others said the key would be how Obama’s lawyers handle concrete questions and decisions.
“It’s important for OLC to remember that it’s not a professorial office: there are real lives at stake, there are real liberties at stake,” said Douglas Kmiec, who headed the office under Presidents Ronald Reagan and George H.W. Bush, and who supported Obama and praised the Johnsen pick.
The OLC lawyers are only a few among the erstwhile opposition figures now entering the administration. Neal Katyal, who successfully argued a key Supreme Court case on the rights of Guantanamo Bay detainees, will be principal deputy solicitor general. David Kris, who was an internal and then external critic of warrantless wiretapping, will head the Obama Justice Department’s national security division. And David Iglesias, the former U.S. Attorney for New Mexico whose firing drew bipartisan condemnation and helped bring down an attorney general, has been called up as a top military terror prosecutor.
The Office of Legal Counsel, though, occupies a unique position. Historically, it guards its independence, despite being located wholly in the executive branch. In the Bush years, though, it articulated the rationale for some of his most controversial policies, justifying interrogation practices like waterboarding and supporting the president’s defiance of a range of Congressional actions. In a famous 2002 memo, an OLC deputy assistant attorney general, John Yoo, argued for unprecedented presidential power and an extremely narrow definition of torture.
Yoo didn’t respond to a request to comment on the Obama appointments
Johnsen, Lederman, and Barron have known one another since their time together in OLC in the 1990s, and as details of the office’s Bush-era legal opinions leaked out, the trio responded by offering a view of executive power far more limited in scope than Bush’s, and which also suggests that President Bill Clinton—for whom they all worked—overstepped at times.
“They became closer friends in the process of looking at things that were going on in OLC after they left,” said Scott Horton, a New York lawyer who has pushed for prosecuting Bush aides for war crimes.
They’ve worked, sometimes together and sometimes independently, to develop a distinct view of their office and of presidential power in scholarly articles and on widely-read legal blogs, with Lederman emerging as a particularly influential online commentator.
The three signed one statement, which Johnson principally wrote, favorably quoting a comparison of Bush’s attorneys to mafia lawyers and laying out principles for restoring the Office of Legal Counsel’s independent tradition.
Barron and Lederman are the authors of a pair of long articles in the Harvard Law Review examining President Bush’s claim that he can wage war—and the War on Terror—largely free of Congressional oversight or restraint. In the articles, they argue that the notion of overriding war powers of any sort is a modern invention, with few roots in precedent or the Constitution.
The Bush position, they wrote, is “a radical attempt to remake the constitutional law of war powers.”
Lederman and Barron argue for Congress’s right to deep involvement both in making and waging war, and note that Bill Clinton, too, chafed at Congressional restrictions in Somalia and Bosnia. But while Bush evaded Congress by claiming vast Constitutional powers, Clinton tended to rationalize his moves on technicalities—to Barron and Lederman, a less radical legal tactic.
The article does suggest that, in bombing Kosovo, Clinton breached a treaty obligation, and it casts a skeptical eye on the “controversial statutory interpretation” that he used to keep troops in Kosovo beyond their congressional time limit.
Johnsen has also written that OLC lawyers should be “prepared to resign” if their opinions are ignored.
If conservatives worry about narrowing the scope of executive power, particularly during a war or terror attack, the Obama lawyers have also drawn fire from the left for their arguments against prosecuting their predecessors.
Johnsen has described the Bush Administration’s conduct as “illegal” and Lederman wrote that former Attorney General Alberto Gonzales and other Bush aides appear to be guilty of “conspiracy to violate the Torture Act.”
But Lederman has disappointed other torture critics by making the case that Bush officials can’t be prosecuted, because they were following OLC’s formal advice.
“All of them believe that things were done that probably passed the threshold into criminal law, but that they wouldn’t be things that would trigger a prosecution or even an investigation, because of the existence of these OLC memos,” said Horton, who supports prosecution and said Lederman gives the memos “talismanic significance.”